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September 16, 2011

On the current state (and possible future) of Ohio's modern capital punishment experiences

16-bca1624b53 One (of many) interesting and valuable components of Ohio's modern death penalty system is the fact that the Ohio General Assembly has, by statute, required the Ohio Attorney General to produce an annual report on capital punishment regarding individuals who have been sentenced to death since Oct. 19, 1981.  The last four such annual reports are all available on-line via this webpage, and I highly encourage students to at least review quickly the most recent of these reports report (which is the 2010 Capital Crimes Report released in April 2011 available at this link).

The latest annual report will not only help you figure out how Ted Kaczynski might fare under Ohio's laws (see pp. 4-7 in the 2010 report), but also highlights the many fora for review of Ohio death sentences (see pp. 8-12 in the 2010 report, where the chart reprinted here appears at the end).  The 2010 report also has an extended discussion of DNA testing procedures and results for those sentenced to death at pp. 15-22.  The report also provides this (now slightly dated) statistics about the application of the modern Ohio death penalty:

Since 1981, Ohio has issued a total of 310 death sentences....

As of [the end of 2010], a total of 41 inmates have been executed under Ohio’s current law....

[And] a total of 14 inmates received a commutation of his death sentence to a sentence less than the death penalty....

[And] a total of 20 inmates died prior to imposition of the death penalty. This includes inmates who died of natural death and suicide....

[And] a total of 8 inmates were found ineligible for the death penalty dueto mental retardation (aka “Atkins” claims)....

[And] a total of 7 death sentences were vacated and remanded to trial courts for re-sentencing, which could result in imposition of the death penalty again ... [and] there was 1 case pending retrial....

[And] 64 death sentences were removed as a result of some form of judicial action beyond the cases already mentioned....

[And] a total of 155 death sentences remained active, including those currently pending in state and federal court [including] seven individuals [who] received a death sentence and were added to death row [in 2010].

As was true following my prior national data dump on executions in this post, I welcome and encourage comments on what lessons we might take away from this Ohio modern death penalty data and history.  Also, I encourage early thoughts about whether these data should suggest a particular agenda for the Ohio Chief Justice's newly form Joint Task Force to Review the Administration of Ohio’s Death Penalty (discussed in this press release and constuting a partnership between the Supreme Court of Ohio and the Ohio State Bar Association “to ensure that Ohio’s death penalty is administered in the most fair, efficient, and judicious manner possible.”)

September 16, 2011 in Death penalty history, Ohio news and commentary, Sentencing data | Permalink


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After skimming through the Ohio Attorney General’s Office “2010 Capital Crimes Annual Report” I found it interesting, first and foremost, that pursuant to O.R.C. § 2929.021, whenever an indictment charges a defendant with capital murder, it is the duty of the Clerk’s Office to notify the Supreme Court of Ohio within 15 days. While it may be a small detail, I think it is commendable, that the Supreme Court takes an active role in each and every possible death sentence case from the beginning. It shows how serious our courts take the death penalty.

Nevertheless, I was disturbed when I did not see a more thorough explanation as to why Ohio chose pentobarbital instead of thiopental sodium. While it may be true that the “sole U.S. maker of thiopental sodium discontinued making the drug[,]” what the Annual Report failed to mention is the fact that Ohio’s other international supplier, namely Italy, refused to continue to sell the drug after learning about our use of it. (See http://hlpronline.com/2011/04/international-companies-limit-access-to-death-penalty-drug/) While the Report did not lie in what it did state, at the same time its omission in not being fully frank in explaining the decrease in supply from other international companies makes me question what else the committee is selectively chooses to leave out. As such, I would be wary to trust anything in the report on its face value. Hopefully though with the new Report from this year will come a more thorough explanation regarding the decision as to why Ohio has switched to pentobarbital as its one drug protocol choice given the events that have taken place earlier this year in the Southern District.

As a side note to the aforementioned point, I think it would be beneficial for Ohio to compare its laws to those of other states. In this manner, the Ohio legislature would be able to better comprehend both the advantages and disadvantages in our current laws while simultaneously having more of an incentive to revise them if deemed necessary.

Lastly, I thought it was interesting from what I had read that no other manner, other than DNA testing, is used as means in which to exonerate a defendant. Although I do not have an answer as to what other source/method can be used, I think it is prejudicial for those defendants who do not have DNA materials that can be tested to be executed if they truly are not guilty. Perhaps the newly formed task form can further address this issue in the hopes of saving innocent lives.

Posted by: Isabella | Sep 19, 2011 2:12:26 AM

Re: Isabella

I really don't think the reports failure to mention the fact that an international pharma-co was pressured by their government into discontinuing sales to states that use the drug to administer the death penalty is quite as damming to the report's credibility. Frankly, I don't think the report even should discuss international policy preference's effects on Ohio's death penalty. I believe the purpose of the report is to ensure that the state's process is administer in a fair and proper way, not justify the existence of the process generally. Not sure if that was hyperbole, but I don't think the omission calls the credibility of remainder of the report into question at all.

As to your comment concerning the unavailability of other methods of exoneration, I don't have a problem with that either. I believe the appropriate time for exoneration is at the TRIAL, not in lengthy and costly subsequent appeals. While I believe that DNA as a practical tool is useful (especially for defendant's that might not have had the technology available at the time of their trial), I don't know what other methods of exoneration you would like to see unless it amounts to a partial retrial. Additionally, as we discussed at the beginning of the semester, it seems logical that the threat of the availability of the death penalty seems to tip the scales in favor of the defendant (slightly higher standard than your average "beyond a reasonable doubt"), so these continuous appeals seem add more cost than I think they're worth.

Note: If Isabella's link does not work for you, copy and paste the address and remove the ending "/"

Posted by: JT | Sep 19, 2011 10:59:29 AM

I agree with Isabella that the possible prejudice that may result in only allowing DNA evidence to exonerate is a valid issue and that it would be a good use of the task force's time to look into what other kinds of evidence may be considered. I think the matter of life and death trumps efficiency and cost concerns that arise with appeals and post-trial considerations. The fact that the system "seems" to tip in favor of a defendant does not convince me that further judiciary proceedings are not worth while if there is any possibility that an innocent person be executed. I realize this opens the door for slippery slope arguments about just how much we will allow a death row inmate to do to prove his innocence, but at the very least, it is something that is worth further consideration by experts in the field.

Posted by: Ranya Elzein | Sep 19, 2011 8:51:57 PM

The Georgia Parole Board denied clemency for Troy Davis:


Anne MacPhail - mother of the victim - said she's satisfied that Davis will be executed because she believes that "justice is done" and that it would bring her "closure". We talked briefly earlier in the semester whether or not what victims want should play a role in sentencing. This example is one where victims are easily overwhelmed by pure retributive reasons and are clearly not a good source to determine an appropriate sentence.

Posted by: Biru C. | Sep 20, 2011 9:48:27 AM


I completely agree with your underlying belief that "if one innocent person may be killed, we should do everything possible to prevent that loss." But if that is really our paramount goal, then I believe we should eliminate the death penalty altogether. Even if every defendant is given 100 appeals, there is still a risk that we may execute an innocent one. So, if you're going to have this penalty then I think cost/efficiency considerations need to be taken into account. To that end, I think the DNA exoneration provision is sufficient because, in my nonexpert estimation, most post-conviction exonerations come from DNA evidence, not rehearings about the other forms of evidence.

So what I was getting at in the previous post is this: as a threshold matter there is the decision as to whether or not to have the death penalty, then another decision as to how to administer the penalty. After a state (like Ohio) has decided to have the death penalty, then I don't think Italy's opinion of the legitimacy of the Death penalty has any importance and also a State really needs to really consider the cost/efficiency of the process for administering the penalty.

Posted by: JT | Sep 20, 2011 10:29:39 AM

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