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May 15, 2010

Potent(?) pace of executions in Ohio starting to produce pushback

This new article from the Columbus Dispatch, which is headlined "Death Row cases should be reviewed, justice says," highlights that some prominent folks are starting to take note and lament Ohio's recent record on administering the death penalty.  Here are excerpts from the article:

The "father of Ohio's death penalty," Supreme Court Justice Paul E. Pfeifer, says all current Death Row cases should be reviewed to see which ones warrant execution -- and which should be commuted to life in prison without the possibility of parole.

"There are probably few people in Ohio that are proud of the fact we are executing people at the same pace as Texas," Pfeifer told The Dispatch.  His comments came the day after the lethal injection of Michael Beuke, the fifth Ohioan executed this year and the 38th since 1999.

"When the next governor is sworn in," Pfeifer said, "I think the state would be well served if a blue-ribbon panel was appointed to look at all those cases.  The only reason we have a death penalty is society demands retribution. ... I never made the argument that it was a deterrent. You can't prove it with numbers."

Pfeifer, a Supreme Court justice for the past 17 years, was one of three Republican state senators who resurrected Ohio's death-penalty law in 1981 after the old law had been declared unconstitutional by the U.S. Supreme Court.  At the time, Pfeifer included a life without parole option in the law, but the Ohio House refused to go along.

Pfeifer, a Republican who is unopposed for re-election to a fourth term on the court this fall, emphasized that he is not suggesting that convicted killers are innocent, or that any should be set free. "The point is whether or not death is the appropriate penalty," he said.

Pfeifer said the majority of the old cases, had they been tried today under current law and societal standards, would not have resulted in capital punishment.  "The number of people we have accumulated on Death Row has been rather staggering," he said. "It's improbable that all of those folks are going to be executed."

With a high number of executions and relatively few new death sentences being handed out (one last year), Death Row has shrunk nearly 21 percent in Ohio, from a high of 203 prisoners in January 2002 to the current 161.  Six more executions are scheduled this year, and two have been set for 2011.

Ohio Public Defender Tim Young called Pfeifer's suggestion "a tremendous idea, one we would greatly encourage." "If people take the time to look at who's on Death Row, they will see types of cases that are so different because they are based on different sets of circumstances," Young said. "A person committing a crime in one part of the state might get the death penalty, and another person who committed a similar crime in another part of the state does not."...

"We as a society always have an evolving standard of justice and fairness," Young said. "What we thought of as justice in 1776 when we cut people's ears off is not the same today.  A decade ago, you could execute the mentally retarded."

Ohio Attorney General Richard Cordray could not be reached for comment.

This article highlights the tendency of some folks to favor the death penalty more in theory than in reality.  Only a grand total of 38 persons have been executed in Ohio in the 30 years since then-legislator Pfeifer sought to bring the death penalty to the state.  If Pfeifer and others in Ohio still support the death penalty at all, I have a hard time understanding why the fact that the state is finally getting around to actually applying this penalty should bother him so much.  

These comments by Justice Pfeifer lead me to wonder if, in fact, he has become a death penalty abolitionist on the Ohio Supreme Court like Justices Blackmun and Stevens did on the US Supreme Court.  If so, I wish he would just be candid like Justices Blackmun and Stevens about his new perspective rather than to make this strange and silly call for a "blue-ribbon panel [to be] appointed to look at all those cases" which have left the state right now with 161 Ohio murderers sitting on death row.

I call the Justice Pfeifer's call for a "blue-ribbon" review panel strange and silly because such a panel arguably already exists in the form of Ohio's Parole Board, which reviews every death row defendant's request for clemency and makes recommendations to the Governor about which cases might merit commuting murderer's sentence from death to something else.  To its credit, the Ohio Parole Board conducts open hearings and issues thoughtful recommendations in every capital case in which a death row defendant seeks a reduced sentence.  I am not sure what Justice Pfeifer expects a "blue-ribbon" panel to do that would be different that what the Ohio Parole Board already does (though I do suspect it will cost Ohio taxpayers some extra dollars that we can hardly afford with our state's current budget woes).

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Comments

Maybe Pfeifer's view was previously "ambivalent" ? It is refreshing now to hear an honest evaluation of the state of the death penalty legacy in Ohio from such a senior judicial figure, and one who has been associated with the dp legal process over a number of years.
Rather than decry his proposals because of the "state's current budget woes", perhaps it would be more appropriate to show respect for them, and acknowledge that they should open an important and valid debate. As "one of three Republican state senators who resurrected Ohio's death-penalty law in 1981" his view can scarcely be ignored.

Posted by: peter | May 15, 2010 12:26:52 PM

Ohio is facing difficult economic times, and some judge wants a blue-ribbon panel to benefit capital murderers? Sounds like someone has his priorities wrong. Additionally, it's a bit unseemly for a Supreme Court Justice to talk about the state not being proud--why, because people who decide to commit murder are executed? Why is that something to be ashamed of?

Once again, squeamishness masquerading as morality.

Posted by: federalist | May 15, 2010 12:38:54 PM

Let's see, Ohio is going through its execution calendar so fast that convicts are waiting fifteen plus years to go from conviction to the death chamber. Enough time that some of them are trying to use that fact as justification for ditching the exercise completely. And here an Ohio judge is saying they don't have enough time to review the cases?

I've got to agree with Bill Otis on this one. The fact that murderer A is deserving of execution and does not receive a death sentence is no reason to reduce the sentence murderer B, who is just as deserving, receives.

Posted by: Soronel Haetir | May 15, 2010 1:16:28 PM

Pfeiffer is a biased judge. He must resign, or he should be impeached. He should face disciplinary investigation for his inappropriate pronouncement of personal preference in the press. If none of the above takes place, all death penalty appellate litigants should demand a recusal on future cases, given his completely inappropriate bias.

Posted by: Supremacy Claus | May 15, 2010 6:35:59 PM

"Additionally, it's a bit unseemly for a Supreme Court Justice to talk about the state not being proud--why, because people who decide to commit murder are executed? Why is that something to be ashamed of?"

The unnecessary extermination of human life is not something that anyone should be proud of.

Posted by: JC | May 15, 2010 7:20:36 PM

Part of the death penalty is the absence of ambivalence. We condemn murder, without hesitation or indecisiveness. The latter misleads the criminal and cost additional lives of innocent murder victim. It is irresponsible.

Posted by: Supremacy Claus | May 15, 2010 8:39:31 PM

Without for the moment going into the many issues this raises, I will just say this: What the government should be ashamed about, first and foremost in this area, is the amount of crime the public suffers. Giuliani proved years ago that crime could be successfully attacked by changes in the law and how the law gets enforced. None of those changes involved softening up.

There are 50 or 60 executions per year in this country and 15,000 or 16,000 murders. You don't need anything but the numbers to be able to tell where our attention needs to be devoted.

Posted by: Bill Otis | May 15, 2010 8:44:57 PM

may be Mr Pfeifer realized how big is the mess you call capital punishment

Posted by: claudio giusti, italia | May 16, 2010 4:49:16 AM

may be Mr Pfeifer realized how big is the mess you call capital punishment

Posted by: claudio giusti, italia | May 16, 2010 4:50:43 AM

"What the government should be ashamed about, first and foremost in this area, is the amount of crime the public suffers."

exactly.

But of course Justice Pfeifer wants to engage in moral preening.

Posted by: federalist | May 16, 2010 9:36:18 AM

Judge Pfeifer, we already have a system that decides between the death penalty and a life sentnece, it is called the jury system and, after that, the appellate process, through your court and others, actually reviews those very issues!

I know, I know, your law school forgot to teach you that and your fellow justices have been hiding this from you. Take you thumb out of your mouth and start reading those briefs.

Oh! Really?

Just take the remedial reading class at Foxworth Elementary, down the street, that should get you rolling.

Posted by: Dudley Sharp | May 16, 2010 9:53:42 AM

Claudio, bisogna migliorare il Suo livello d'inglese perché, scrivendo come fa Lei, Lei sembra un clown e così Lei fa la solita brutta figura che fanno gli italiani all'estero.

Posted by: Alpino | May 16, 2010 10:53:59 AM

fist
get a look here
Dallas Morning News
“Unequal Justice: Scales of justice can swing wildly” 23 April 2006
http://www.dallasnews.com/s/dws/dn/latestnews/stories/042306dnmettwomen.2e5ca5a.html

Dallas Morning News
“Unequal Justice: Murderers on Probation” 10 – 14 November 2007
http://www.dallasnews.com/sharedcontent/dws/spe/2007/unequal/index2.html

second
Alpino, sei fortunato che non siamo in Italia


Posted by: claudio giusti, italia | May 16, 2010 11:59:47 AM

"What the government should be ashamed about, first and foremost in this area, is the amount of crime the public suffers."

This is a talking point and nothing more. The crime rate plummeted across the country in the last 30 years in states with and without a three strikes-like law. If public safety really is the number one priority of government, then why not try to prevent crime in first instance? Oh, the broken windows policy is all that is needed, not prevention, not education and not rehabilitation. Check out the Republican talking points of candidate running for AG in California.

They all think prison and longer sentences are the panacea, but not one support for any program that could prevent victimization BEFORE a crime is even committed. Their only solution is more prison after the fact, after it is too late because there is already a victim. There are plenty of studies now that found there are programs that not only eliminate the need to build new prisons, but they at the same time protect victims because they do not become victims.

In other words, the Republican "concern" over victims and public safety is is a front, not real, nothing more than a pandering talking point because prison is the perfect (and only) antithesis to those "liberal" programs that could prevent victimization before it happens. It is this propaganda that got us the highest incarceration rate in the world without achieving a lower crime rate equal to other countries despite our crime rate drop.

Posted by: George | May 16, 2010 12:42:20 PM

George --

"The crime rate plummeted across the country in the last 30 years in states with and without a three strikes-like law."

The crime rate plummented as the number of executions vastly increased, incarcerations went way up, mandatory minimums proliferated and sentencing guidelines to curb idiosyncratic leniency took hold in many states and the federal government. That is just a flat-out undeniable fact.

"If public safety really is the number one priority of government, then why not try to prevent crime in first instance?"

That's exactly what the measures just mentioned did, both by specific and general deterrence. What you apparently, but quite oddly, don't see is that going to the slammer is an experience potential criminals seek to avoid by -- hold onto your hat now -- GETTING A NORMAL JOB LIKE THE REST OF US. Is that amazing or what!!!

"Oh, the broken windows policy is all that is needed, not prevention, not education and not rehabilitation."

That's not the biggest strawman I ever saw here, but it's in the running, since I said neither that the broken windows policy was ALL that is needed, NOR that education and rehabilitation have no role. As you'd know if you read what I've written in the past, I favor not only rehabilitation but MANDATORY rehabilitation in terms of drug treatment and vocational education. But what you seem to want to miss is that, in order for these things to work, the inmate has to WANT them to work and has to want to quit the way he's been living and start a new way of living. The credible threat of a return trip to the slammer will help that along, as you full well know but refuse to admit.

"In other words, the Republican "concern" over victims and public safety is is a front, not real, nothing more than a pandering talking point because prison is the perfect (and only) antithesis to those "liberal" programs that could prevent victimization before it happens."

Have you forgetten history altogether? WE TRIED YOUR WAY OF DOING IT FOR ABOUT TWENTY YEARS, in the sixties and seventies. What we got was skyrocketing crime. Then we tried it my way (under Reagan, Bush, Clinton and Bush II) and we got much less crime.

And don't hand me this "propaganda" line. It's historical fact. Look it up.

Posted by: Bill Otis | May 16, 2010 3:50:40 PM

Let's look at this another way, namely that he thinks many on death row would not be there if they were tried today. For one, there is no way to accurately predict that. There have been five death sentences handed down in Ohio courts so far this year (Mammone, Osie, Kirkland, Jackson, Pickens), for murders under varied circumstances. This evenly matches the five executions.

For another, why should we judge past sentences by the inclination of modern juries? And how do you decide which era is the best standard? What if 2010-2019 turns out to have far more death sentences than 2000-2009? Should we then go back and resentence lifers sentenced 2000-2009 to death? Before you say that is impossible, there have been 5 death sentences handed down SO FAR this year, there could be many more. There was only one new death sentence handed down in Ohio in 2009 and one man was resentenced to death.

Posted by: MikeinCT | May 16, 2010 5:30:54 PM

Mike, to riff of your point, what does Pfeifer propose to tell victims' family members--oh, well, we're more enlightened now, so we're going to, after all these years, cheat you.

Posted by: federalist | May 16, 2010 5:48:17 PM

Mr. Bill, I didn't know my post was about you.

"WE TRIED YOUR WAY OF DOING IT FOR ABOUT TWENTY YEARS."

That is flat out false. But if you think it true explain what my was is and why it didn't work.

Neither can you claim your way is responsible to the crime rate drop as a "flat-out undeniable fact."

Prisons, Jails & Probation - Overview

"While it may seem obvious that locking up more people would lower the crime rate, the reality is much more complicated. Sentencing and release policies, not crime rates, determine the numbers of persons in prison. This point is illustrated by examining what happened to incarceration rates and crime rates nationally in the period from 1991-1998. ... The three largest states offer useful examples: Texas experienced a 144% increase in incarceration with a 35% drop in crime rates, and California had a 44% rise in its incarceration rate with a 36% drop in crime rates. In contrast, New York saw its incarceration rate increase by only 24%, yet nonetheless experienced a drop in crime rates of 43%."
Source:
Alexander, Elizabeth, "Michigan Breaks the Political Logjam: A New Model for Reducing Prison Populations," "Michigan Breaks the Political Logjam: A New Model for Reducing Prison Populations," American Civil Liberties Union (November 2009), p. 4.

Posted by: George | May 16, 2010 8:34:09 PM

"Incarceration has not been definitively shown to reduce crime rates. Bruce Western at Harvard University recently found that only 10 percent of the crime decline in the 1990s was due to increased use of incarceration.7 Between 1998 and 2007, states that had the greatest increases in incarceration rates did not necessarily see a corresponding drop in crime rates. Some states (Maryland Massachusetts, Nevada, New Jersey, New York, North Carolina, South Carolina, and Texas) lowered their incarceration rates and still experienced a drop in crime rates.8 Such uneven results do not support continued over-reliance on incarceration, particularly in a time of fiscal crisis."
Source:
Justice Policy Institute, "Pruning Prisons: How Cutting Corrections Can Save Money and Protect Public Safety," (Washington, DC: May 2009), p. 5.
http://www.justicepolicy.org/images/upload/09_05_REP_PruningPrisons_AC_P...

Posted by: George | May 16, 2010 8:40:14 PM

George --

Me: "WE TRIED YOUR WAY OF DOING IT FOR ABOUT TWENTY YEARS."

You: "That is flat out false. But if you think it true explain what my was is and why it didn't work."

1. It's true unless the BJS statistics for the last 50 years or so are made up.

2. Your way is de-emphasizing incarceration and tilting more toward the medical model of reliance on counseling and rehabilitation. That was all the rage in the sixties and seventies. What happened was a skyrocketing increase in crime.

My way is what works. Over the last 20-plus years, we have recognized the limitations on attempts to rehabilitate and have adopted a tougher regime consisting of guideline sentencing, mandatory minimums, vastly increased use of the death penalty, etc. And the crime rate has fallen by over 40%.

3. I already explained why this works, even though you continue to pretend you don't know. It's called DETERRENCE. It's also called INCAPACITATION. Over the long term, the more adverse the consequences of crime to the perpatrator, the less likely people are to commit it. This is common sense and also, as the figures demonstrate, common experience.

4. Cite all the ACLU studies you care to. It's the same as citing an NACDL study. The numbers are there; you can't just wish them away and it's odd -- but for your ideology -- that you want to.

Posted by: Bill Otis | May 16, 2010 11:07:40 PM

"The numbers are there; you can't just wish them away and it's odd -- but for your ideology -- that you want to."

You must be talking to yourself here, Mr. Bill, because you ignore the numbers of the cited studies. I don't recall any "evidence based" studies of what works from the 60s and 70s. Would you care to cite one that evidence proved worked but didn't? Do you know what an evidence based program is?

Vigilantes think if something they do appears to work, they are responsible for the corrections, despite all the variables they are unaware of or deny that more directly contributed to rehabilitative success.

If something they do doesn't work, then it's a matter of personal responsibility and they did not contribute to the failure at all. Then they say, "I told you so."

If there are two or more possible interpretations of something, they will always pick the most evil appearing or guilt enhancing interpretation, though the other interpretations were just as plausible.

Most destructive though is that vigilantes try to sabotage any healthy improvement in order to maintain their power, control and reason for being.

A lot of conservatives nowadays are realizing this is wrong approach.

Posted by: George | May 17, 2010 12:08:38 AM

"To its credit, the Ohio Parole Board conducts open hearings and issues thoughtful recommendations in every capital case in which a death row defendant seeks a reduced sentence." You state this like a person with knowledge. How many clemency hearings have you attended? What materials have you reviewed in conjunction with the board's recommendations? If none, then how do you evaluate the recommendations? On what do you base your determination that this current board is "thoughtful" in its decisionmaking?

I had always thought you were better than a person who blanketly stamps something with approval, despite the fact that you have no in-depth knowledge of or experience with it.

Posted by: Former Student | May 17, 2010 11:21:12 AM

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