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August 30, 2017

New report spotlights concerns with background of 26 Ohio condemned scheduled for execution in coming months and years

In this post earlier this year, I reported on a significant report produced by the Fair Punishment Project (FPP) examining the background and case history of eight death row defendants in Arkansas who had approaching execution dates.  That March 2017 Arkansas report from FPP was titled "Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering," and I am inclined to assert that the FPP report played a role in a few of these Arkansas defendants getting their executions stayed.

Now FPP has turned its eye to the Buckeye State now that Ohio has gotten its machinery of death operating again, and FPP's latest report here is titled "Prisoners on Ohio’s Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age." Here is how this report gets started:

On July 26, 2017, Ohio ended its three-year execution moratorium and put Ronald Phillips to death.  Phillips, 19 at the time he committed his crime, had the intellectual functioning of a juvenile, had a father who sexually abused him, and grew up a victim of and a witness to unspeakable physical abuse — information his trial lawyers never learned or presented to a jury.

Ohio intends to execute three more people in 2017 and then 23 more between 2018 and 2020.  We examined the cases of these 26 men, relying on available legal pleadings, court opinions, and where accessible, trial testimony.  We found that these men are among the most impaired and traumatized among us — a pattern replicated across America’s death rows.  At least 17 out of the 26 men experienced serious childhood trauma — horrifying instances of extensive physical and sexual abuse.  At least six men appear to suffer from a mental illness, and at least 11 have evidence of intellectual disability, borderline intellectual disability, or a cognitive impairment, including brain injury.  Three were under the age of 21 at the time they committed their offenses, a period during which an individual’s brain, especially the section related to impulse control and decision-making, is still underdeveloped.  Many of these men fall within several of these categories, which compounds the impairments.

We use the term “at least” because three of these men waived the presentation of mitigation at their trials.  And several had lawyers who conducted little to no investigation at both the trial and post-conviction phase or failed to seek the assistance of psychologists and other experts, despite the presence of familial mental illness, which is often hereditary. Therefore, in those cases, we know very little about existing impairments, even though execution dates are looming.

The Constitution mandates that the state restrict the use of the death penalty to only those “whose extreme culpability makes them ‘the most deserving of execution,’” regardless of the severity of their crimes. The individuals identified here have been convicted of horrible crimes, and they must be held to account.  But the evidence suggests that Ohio has not met its constitutional obligation.  It is instead planning to execute nearly two dozen individuals with substantial impairments, rather than reserving the punishment for those with the greatest culpability.

Below, we describe some of the stories we uncovered while researching these 26 Ohio cases.  We have grouped them by category of impairment which includes serious trauma, mental illness and intellectual disability, and youth.  These distinctions, however, are artificial — many of these men have heartbreaking stories falling within multiple categories. For each example of a debilitating impairment, we could have included many other equally terrifying stories about those facing a sentence of death.

August 30, 2017 at 10:18 AM | Permalink


“Nothing more than the purposeless and needless imposition of pain and suffering”
“Null’altro che l’imposizione, insensata e senza scopo di dolore e sofferenza”
Scotus, Cooker 1977

Posted by: Claudio Giusti | Aug 30, 2017 10:39:32 AM

Claudio. I am a big fan of the Italian death penalty. I now oppose the American death penalty, and support the Italian death penalty.

Posted by: David Behar | Aug 30, 2017 11:16:41 AM

These turkeys think that Philipps should have been spared because of abuse and youth, as a constitutional matter. Yeah, right.

And their argument is a lot like Joe's: pick the "whose extreme culpability makes them the most deserving of execution" and point out some reason why the particular murderer doesn't qualify without looking at capital sentencing as a process with diffuse decisionmakers and with jury sentencing. Juries are entitled to have, for example, the opinion that Philipps, having suffered abuse, should have known better not to rape a three-year old. Etc. etc.

What utter nonsense.

Posted by: federalist | Aug 30, 2017 12:48:45 PM

DB, think to the 1.500 persons killed every year by the American police.

Posted by: Claudio Giusti | Aug 30, 2017 2:13:36 PM

it is a tale. Told by an idiot, full of sound and fury, Signifying nothing.

Posted by: Claudio Giusti | Aug 30, 2017 2:22:13 PM

"without looking at capital sentencing as a process with diffuse decisionmakers and with jury sentencing"

The report here argues that as a whole many of the people to be executed does not meet a certain constitutional test. This is not ignoring that the selection process involves various decision-makers. I myself repeatedly note that very fact to argue that a range of people are involved in the very limited number of people who are executed in let's say CA.

There remains some overall objective criteria, even in some cases when specific juries choose to execute, that must be met. And, after a jury decides, such criteria as would something like fact-finding, might independently be examined by governors and others.

Posted by: Joe | Aug 30, 2017 8:53:32 PM

“Indeed, it would have been odd if it had transpired that Englishmen alone are so peculiarly brutal by nature that they require some special deterrent from murder which nearly all the civilised countries of the world have found unnecessary in practice - in many cases for generations.”
Gerald Gardiner, Capital Punishment as a Deterrent, London, Gollanz, 1956. p 56

Posted by: Claudio Giusti | Aug 31, 2017 8:48:20 AM

The real question Doug is what are YOU going to do about this, other than give publicity to the report on this blog. As a prominent, influential law professor and sometime commentator for the press, how and in which forum are you going to help those on the Ohio death row? That these cases have got so far in Ohio surely demonstrates the complete disfunction of the process - which merits an immediate moratorium leading to abolition at best, and urgent legal actions to stop the indiscriminate application of the death penalty in the cases highlighted by this report at the least. I hope we can expect to see your active representation to stop unconstitutional carnage.

Posted by: peter | Sep 1, 2017 7:16:50 AM

Capital defendants in Ohio and elsewhere, peter, have multiple opportunities in multiple courts to establish that a sentence of death for their murderous acts is unconstitutional. When those claims have been repeatedly rejected, I am inclined to consider the coming executions "constitutional," not "unconstitutional." Moreover, my knowledge of Ohio's capital laws and procedures and the quality of defense representation in the state leads me to dispute your assertion that the capital process is completely dysfunctional in the state.

I get, peter, that you think all application of the death penalty are human rights violations and an abomination. Because I do not share that view, I will get involved only on a case-by-case basis based on my assessment of the facts and circumstances of each case.

Posted by: Doug B. | Sep 1, 2017 1:20:40 PM

As a member of the Legal Advisory Council of the Report authors, it must be disappointing to many that you find it so easy to defend your own State quite so readily (complacently?) in the face of such a damning review. Mitigation is supposed to be at the heart of the death penalty system in order to differentiate the "worst of the worst" from those intellectually less culpable for their own actions (however abominable), yet the State and now you, seem unwilling to challenge the practices and rules that make that differentiation impossible to achieve. Those same practices and rules empower overzealous prosecutors and impede the work of the high quality defense attorneys you refer to. I find your views incompatible with the ethos and findings of the Fair Punishment Project - though I refrain from adding the obvious consequential remarks. It is never wrong to challenge the status quo, nor is it ever wrong to challenge a given interpretation of the Constitution in the enlightenment of modernity.

Posted by: peter | Sep 2, 2017 4:33:45 AM

Peter. Try to take it easy. I wonder how Prof. Berman can deny physical reality, and still deny the fact. All mitigating factors, including those not yet accepted by the pro-criminal Supreme Court are aggravating factors.

I hate to get repeatedly stupid. The victims of child abuse, those with intellectual disability, those with severe psychotic paranoid schizophrenia, the ones with brain damage from a traumatic brain injury, the ones with involuntary need to rape children before killing them, that you feel so much care and need to protect? The home address. We are putting them in your house.

Posted by: David Behar | Sep 2, 2017 11:59:24 PM

Claudio. Of the 1500 killed by the American police, there is a marked over-representation of white criminals, far out of proportion to the criminality of blacks. There is a reverse racial bias in police homicides. From the propaganda article of the Washington Post, owned by gay activist, Jeff Bezos, "732 were white, and 381 were black (and 382 were of another or unknown race)." This is despite that blacks commit 5 times as many crimes as whites and are one fifth of their population fraction. Many of the whites are mentally ill, and agitated.

Here is my question. Is there an excess of police homicides in lawyer residential neighborhoods, out of proportion to their fraction of all neighborhoods. No one has ever looked at that number. That question is inspired by my own lawyer neighborhood.

I also own a house in a very mixed neighborhood in a smaller town. Next door neighbors were being sought by their probation officers, who rang my bell by mistake. A bunch of low class, dark skinned people live across the street. No crime in decades. It is located on lawyer row. I even learned from police officers, there are only 6 officers patrolling the night shift of this town of 75000. You do not even need a lot of police. You just need the certain knowledge. Commit a crime in a lawyer neighborhood. You dead. Dead on the spot.

As an aside, for information purposes, Rome and most Italian large cities are now unlivable from crime. The statistics always cited by Claudio are false propaganda, and the result of the police throwing reports of crime victims in the trash. Speak to some real Italians for the reality of crime in Italy.

Posted by: David Behar | Sep 3, 2017 12:15:28 AM

peter, you are quite right to accuse me of being complacent when it comes to concerns about the operation of capital punishment in Ohio (and elsewhere). This is the result of the fact that (1) capital defendants in Ohio (and elsewhere) get a whole lot more sentencing procedure, a whole lot more defense resources, and a whole lot more appellate and clemency attention than all other defendants who have committed less serious crimes, (2) lots of amazingly talented folks within and outside the state of Ohio already spend a lot of time concerned about these particular defendants (as this FPP reveals), and (3) absent compelling evidence of innocence, "success" for these defendants results in their being locked in a cage under they die --- i.e., a slower death by law, rather than a slightly faster one.

I say none of this to disparage your concerns or the work of so many fine folks who are so distressed by capital punishment that they are willing and eager to spend so much time concerned with how the state responds to certain murders and murderers. But, in part because I can be confident that every murderer sentenced to death will get lots and lots of attention, I generally believe it makes sense for me to invest more time and energy looking into other parts of criminal justice systems that, in my view, get too little attention.

Posted by: Doug B | Sep 3, 2017 11:46:56 AM

Merely by continuing to post things about the death penalty (a major subject matter on this blog along with sexual offenses, both which attract certain comments), the author of this blog implies a certain level of concern.

Posted by: Joe | Sep 3, 2017 1:22:23 PM

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