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February 5, 2010

Should Ohio Supreme Court start scheduling more than one execution per month?

As detailed in this prior post, Ohio's public public defender last summer complained about the state's quickened pace of scheduled executions.  But, as detailed in this new AP report, which is headlined "Ohio Supreme Court considers 5 new execution dates," it would seem that the Ohio Supreme Court's tendency to schedule only one execution per month is setting a pace that is too slow, not too fast.  As that AP report notes, Ohio already has executions scheduled, at a pace of one per month, through September 2010.  Unless the Ohio Supreme Court is willing to scheduled executions more frequently, the latest round of execution requests could have the state's death chamber "all booked up" well into 2011.

Significantly, Ohio has over 175 murderers currently on the state's death row.  This means that, even at a steady pace of one execution per month, the state would not be able to carry out the lawfully impose sentence on all of its condemned killers until about 2025.  Perhaps the condemned Ohio killer that gets to be last in the cue is glad that it may take 15 or more years until Ohio prosecutors can get a "reservation" for carrying out his death sentence, but I doubt that families of murder victims should be too content with the pace of capital justice in Ohio.

Especially now that Ohio has successfully transitioned to a one-drug lethal injection protocol and also given that even the state's Democratic leadership seems content and even pleased with the operation of the state's system of capital justice, perhaps the Ohio Supreme Court will consider setting more that one execution date per month.  At the very least, I hope those Ohio prosecutors who helped secure death sentences are will to help the Ohio Supreme Court appreciate the issues that can arise if the execution pace is not increased.

Some recent related posts:

UPDATE:  This new AP article, which is headlined "Ohio could set state record for lethal injections," discusses Ohio's notable execution pace.

February 5, 2010 at 10:27 AM | Permalink


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Doug, you spend a lot of time worrying about innocent people. You seem to have a twin, countervailing concern about delay – expressed above in your comment that "it would seem" that the pace "is too slow, not too fast."

Kerry Cook of TX (who came within 11 days of execution before being exonerated and freed), Anthony Porter of IL (who came within five days), Ron Williamson of OK (5 days), Earl Washington of VA (9 days), and many others are glad that the pace was a little slower rather than faster. I bet Cameron Todd Willingham wishes the pace had been slower. Or how about James Bain, who in a non-death case was recently freed by DNA testing 35 years after his conviction.

Rather than using your concern about innocence to establish bona fides with abolitionists and your concern about delay to establish bona fides with the killing crowd, I wish you would confront the tension between the two. Otherwise your position begins to seem like so much Joe Lieberman-esque opportunism – a narcissistic contrarianism rather than sincerely felt belief and well-thought-out principle.

Posted by: dm | Feb 5, 2010 10:56:04 AM

It does seem like a very artificial limit by the court. Although I'm also somewhat surprised, honestly, that courts are in the business of setting execution dates. I would have thought the system would be more like:

(1Trial ends with a death sentence.
(2a) Executive schedules execution.
(2b) Convict appeals
(3) Court issues stay all through direct review.
(4a) Executive schedules execution.
(4b) Convict appeals.
(5) Court issues stay through collateral review.
(6) Executive schedules execution.
(7) Convict appeals but now doesn't have any stay as a matter of right, instead having to prove something exists to litigate before stay issues.
(8) Convict is executed.

The role here is for the courts to say "no" to the executive, not for them to say "go ahead".

Posted by: Soronel Haetir | Feb 5, 2010 1:07:49 PM

dm, what is the basis for your assertion that I spend "a lot of time worrying about innocent people" on death row? I have written a number of pieces of scholarship in which I complain about relatively too much time spent by others worrying about innocent people on death row. Indeed, if innocence is really the chief concern for abolitionists, I think we ought to get rid of traditional costly habeas review (which is not concerned with innocence) and invest instead in capital innocence commissions.

More importantly, I do not blog in an effort to "establish bona fides" with anyone. Rather, I just seek through blogging to chronicle and comment on developments in my field of expertise.

I share your view that there is a tension between concerns about delay and concerns about innocence. But given that we have roughly a 99.5% accuracy rate on the guilt/innocence issue, and yet it often takes DECADES to get from a capital sentence to an execution, I think there should be relatively more concern about delays and relatively less concerns about innocence.

Understand, dm? You obviously are concerned about innocence in this setting since you know the names of exonerated death row defendants. Do you know the names of exonerated persons sentencing to LWOP? Do you worry that there are likely hundreds, if not thousands, more innocent persons serving LWOP sentences than serving death sentences?

Posted by: Doug B. | Feb 5, 2010 1:56:19 PM

Soronel, it varies by state. It some states the Governor signs an execution warrant.

In California, the court that issued the judgment sets the date for its judgment to be executed after the appeals are over. It works as well as any other system.

Posted by: Kent Scheidegger | Feb 5, 2010 3:14:34 PM

Doug: A search of "willingham" on your blog turned up 99 entries. A search of "troy" as in davis turned up 144 (not all of the latter refer to Troy Davis, but many do).

Posted by: dm | Feb 5, 2010 3:27:35 PM

P.S. With about 1100 executions since 1976 and about 120 death row exonerations since 1976, I'm not sure you're 99.5% figure bears out.

Posted by: dm | Feb 5, 2010 3:29:25 PM

At least the Supreme Court of Ohio is following the statute. One a month is apparently what they deem to be adequate for the courts and the Governor to consider the case carefully. I wish the Florida legislature would change the statute to authorize the circuit court or the Florida Supreme Court to set the execution dates upon request from the Attorney General's office. For some reason, our former Attorney General who is now our Governor has become incredibly lax on signing death warrants.

Posted by: DaveP | Feb 5, 2010 3:30:10 PM

dm: I believe I have done around 5 or 6 posts directly on the Willingham story (out of almost 10,000 posts on this blog). All the other "hits" when you do a google search come from people like you mentioning Willingham in a comment thread such as this one. The same roughly goes for Trot Davis (whose case, by the way, resulting in a remarkable SCOTUS ruling). You and other commentors on this blog obviously "spend a lot of time worrying about innocent people," but do not attribute those concerns to me just because you or others repeatedly bring up Willingham (even in a post about execution delay and having NOTHING to do with innocence).

Meanwhile, if you type in "execution delay" in the google box, you get 254 hits. Also, have you ever read my complaints about the over-emphasis on innocence" You can find some of these if you type these prior post headlines into the google box: "The insidious distraction of innocence"; "Of innocence and over-punishment"; "Carefully exploring the wrongful conviction problem." Also, you might want to check out pp. 8-13 of this Harvard Law & Policy Review article of mine, http://www.hlpronline.com/Berman_HLPR_120808.pdf, which has as a heading "THE DISTRACTING (AND COUNTER-PRODUCTIVE) FOCUS ON INNOCENCE..."

I do not mind getting attacked for my actually positions. But I do not like being attacked for positions I do not take and have actually argued against.

Posted by: Doug B. | Feb 5, 2010 3:44:55 PM

dm, there have been nearly 10,000 death sentences handed down since 1976 and arguably less than 50 proof-positive exonerations. Thus, it may be more accurate to say that death sentencing gets it right 99.95% of the time. (Death sentences imposed, not executions, provide the number for comparison.)

I used the number 99.5% because, how ever you run the numbers, there is strong evidence to suggest that 499 death sentences involve a guilty murderer for every 1 that involves a true innocent. I wish all government programs had this level of accuracy.

Posted by: Doug B. | Feb 5, 2010 4:15:55 PM

Prof Doug B., those numbers are impressive enough to almost agree with federalist that the error rate is too small to be of concern at all, until giving it some more thought.

What if the Innocence Project had the opportunity (and the evidence) to process all 10,000? What then?

Posted by: George | Feb 5, 2010 4:42:43 PM

Au contraire, George. I don't think I've ever said that innocence is something to be trifled with. I don't believe that all of the so-called exonerated on DPIC's list "didn't do it", but that hardly makes me unconcerned with innocence.

By the way, George, DPIC's innocence list includes Timothy Hennis. He has been linked to the murder through DNA. How many others in DPIC's innocence list really did it?

Posted by: federalist | Feb 5, 2010 5:19:36 PM

The Professor should go into politics. He has the language skills. He can do the double-speak, and then double-speak the double-speak when confronted with it.

Posted by: Samuel | Feb 5, 2010 5:29:41 PM

By the way, I believe the Ohio Supreme Court said no more than one execution every three weeks (not every four). So, at that rate, the State of Ohio could dispatch 17 murderers a year.

Posted by: Alpino | Feb 5, 2010 6:17:03 PM

"By the way, I believe the Ohio Supreme Court said no more than one execution every three weeks (not every four)."

I think that's correct. If I remember correctly, the Ohio Public Defender Commission said that they needed at least three weeks to put together an adequate clemency application for any given case, and that's where the "three week rule" came from.

Posted by: JC | Feb 5, 2010 8:12:33 PM

Doug, I think I must have conflated frequent comment themes with your actual posts. I apologize. I apologize also for my previous flippant response.

Posted by: dm | Feb 5, 2010 8:17:51 PM

I love it when dumbass lawyers get at it. It is like watching British aristocracy at High Tea. Pinkies up.

One little problem. This peaceful, controlled High Tea is taking place on the effing Titanic.

The lawyer needs to shush. There is nothing the lawyer can say of any validity, interest or intelligence. Both sides of any lawyer dispute represent professional self-serving, criminal lover betrayal of the public. This is a criminal cult enterprise. It needs to be decapitated of its entire hierarchy, about 15,000 cult criminals. Another 150,000 lesser leaders should be rounded up and put in prison, to incapacitate their insurrection against the Constitution. No sitting judge should be allowed to remain on the bench. Lawyer control statutes should prevent any future cult take over of the government by excluding the lawyer from all responsible position.


Solves the delay problem. Solves the innocence problem. Solves the question of general deterrence, with the answer, no, but we don't care about deterrence of people incapable of deterrence. Ends all prison crowding, with all prisoners now able to occupy a suite with private bath, sauna, home office, and kitchenette for midnight snacks when the high class caterer is not available. In federal prison, each suite might have an endless pool in the outdoor living room.

Solves the crime problem permanently by dispatching 10,000 violent criminals a year. There will be very little crime because the criminals will have gone missing.

Posted by: Supremacy Claus | Feb 5, 2010 11:37:16 PM

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