Ohio and Capital Punishment: It’s Complicated

. January 25, 2017.
The Toledo Correctional Institution (TCI) is now home to Ohio’s 125 death row prisoners.
The Toledo Correctional Institution (TCI) is now home to Ohio’s 125 death row prisoners.

For an update on the recent U.S. District Court order, see:
Ohio Not Back in Business with Executions Just Yet: U.S. District Court Magistrate orders a stay of three pending executions. 

Ohio’s last execution was three years ago, in January 2014, when the State killed Dennis McGuire by lethal injection. In 1989, McGuire raped and murdered 22-year-old Joy Stewart, who was 30 weeks pregnant. The Columbus Dispatch reported on the execution, saying “McGuire…gasped, choked, clenched his fists and appeared to struggle against his restraints for about 10 minutes… before being pronounced dead…. It took 26 minutes for him to die after the drugs were administered.”

“I’ve been with the ACLU 13 years and Dennis McGuire’s execution marked the fourth botched execution in that timeframe,” says Mike Brickner, Senior Policy Director of the Ohio office of the American Civil Liberties Union (ACLU). “Ohio has a very troubling track record with properly carrying out executions, and Mr. McGuire’s execution was tantamount to human experimentations.”

Now, the State of Ohio prepares to impose capital punishment again. On February 15, 2017, Ronald Phillips, who was convicted of raping and murdering his girlfriend’s 3-year-old daughter in 1993, is scheduled to be executed by the State.

Drug Problem

Ohio has not put anyone to death since McGuire due largely to the difficulty in obtaining lethal drugs. Many pharmaceutical companies, including Roche and Akorn, according to press releases posted on the Death Penalty Information Center website, have condemned the use of their drugs in execution protocols, so states have been reaching out to strange companies, often in other countries, to obtain them. The International Academy of Compounding Pharmacists also “discourages its members from participating in the preparation, dispensing, or distribution of compounded medications for use in legally authorized executions.” Meanwhile, Ohio and other states have made laws that keep the pharmacies that compound lethal injection drugs anonymous.

Ohio is one of 31 states that provide for the death penalty as punishment, along with the U.S. federal government and the U.S. military. Since the beginning of the new millennium, seven states, including New York and New Jersey, have abolished the death penalty or courts have ruled their state death penalty laws unconstitutional. Four state governors have halted using the death penalty, and 11 states and the District of Columbia already had previously abolished the death penalty, according to the Death Penalty Information Center (DPIC).

Ohio has been killing people for capital crimes since the 1800s. For many years, the electric chair was used to kill the condemned, but in 2001, lethal injection became the sole method of execution in Ohio.

The State of Ohio has executed 53 prisoners since 1999, but did not execute anyone for a full 36 years between the 1963 execution of Donald Reinbolt and then the 1999 execution of Wilford Berry.

Toledo and the death penalty

Toledoans for Prison Awareness (TPA), a local organization focused on mass incarceration and prison issues, including the death penalty, in conjunction with the ACLU and Ohioans To Stop Executions (OTSE), hosted on January 12th a talk by attorney and Assistant Cuyahoga County public defender Jeff Gamso on “The Death Penalty in Ohio and the Nation” at the First Unitarian Church in South Toledo. About 50 people attended the event. The date for the talk was chosen to coincide with Ohio’s resumption of executions this year.

Jeff Gamso, Assistant Cuyahoga County Public Defender and death penalty opponent

Jeff Gamso, Assistant Cuyahoga County Public Defender and death penalty opponent

Mr. Gamso noted in his presentation that while the death penalty is still the law in Ohio, and while about 60 percent of Americans support capital punishment, executions and death sentences are both declining.

“We’re killing fewer people, we’re sentencing fewer people to death— that’s the poll that makes the most sense,” Gamso said. There have been fewer capital indictments since 2009, he said, because “it’s far more expensive to try a capital case.”

Gamso is vehemently opposed to capital punishment. “If you kill enough people,” he said “sooner or later you’re gonna kill innocent ones. We are fallible human beings.”

“We support the elimination of the death penalty, and propose life without parole as an alternative,” says Joe Moran, treasurer of TPA, “We’re concerned that [the death penalty] is erratically imposed and, commonly, used against those without financial means, which are often people of color. It’s applied unevenly. It’s a lottery— and that alone makes it a very unfair punishment.”

Not everyone who attended the event held anti-death penalty views. Maggie, a teacher who lives in Maumee, said “I think some crimes are so heinous that you lose your right to live.” She also said she didn’t want her tax dollars helping criminals serving a lifelong prison sentence.

The Toledo Correctional Institution (TCI) is now home to Ohio’s death row prisoners. Ohio’s Department of Rehabilitation and Correction announced in October that about 125 death row prisoners will be moved to TCI, which opened in 2000.

Toledoan Anthony Belton, an African-American, was sentenced to death in Lucas County in 2012 for the 2008 murder of 34-year-old BP convenience store clerk Matthew Dugan. The crime, in which Dugan was shot in the back of the head, occurred during a robbery of the convenience store, then at Secor and Dorr.

Belton’s attorneys, in an appeal to the Ohio Supreme Court, argued that Belton’s sentence be commuted to life in prison, without the possibility of parole, sparing him the death penalty. The Court’s opinion, acknowledging that Belton presented numerous mitigating factors— including his difficult childhood, suffering depression, his young age (22), and his lack of prior criminal history— held that the shooting of Dugan at close range, in the back of the head, while Dugan was cooperating with Belton’s demands, overrode those mitigating factors, and allowed Belton’s sentence to stand.

State Senator Edna Brown has introduced legislation to abolish the death penalty in Ohio

State Senator Edna Brown has introduced legislation to abolish the death penalty in Ohio

“One of my primary concerns in reintroducing this legislation and renewing my call for abolishment is preventing the execution of an innocent person.”
— Ohio Senator Edna Brown

Toledo-area State Senator Edna Brown reintroduced legislation this year, Senate Bill 154, to abolish the death penalty in Ohio. “One of my primary concerns in reintroducing this legislation and renewing my call for abolishment is preventing the execution of an innocent person,” Senator Brown said in a press release. Senator Brown met with three Ohioans, Wiley Bridgeman, Kwame Ajamu, and Ricky Jackson who were exonerated and released from their death sentences and from prison, at the Ohio Statehouse in 2015. “In a system so clearly prone to error, I believe the ultimate and irreversible penalty of execution should not be an option,” Senator Brown stated.

Mike Brickner, Senior Policy Director of the Ohio ACLU

Mike Brickner, Senior Policy Director of the Ohio ACLU

“You look at the potential of executing an innocent person,” said the ACLU’s Brickner, “that would be a grave travesty of justice.”

Nine Ohio death row convicts have been exonerated since 1979, and since 1973, 156 people on death row in the entire USA have been set free, according to the Death Penalty Information Center.

Ohio’s death penalty law

To be eligible for the death penalty, the defendant must be at least 18 years old and a homicide must occur in conjunction with an aggravating circumstance, such as: murdering a law enforcement officer, acting as a hired hit-man, murdering a person less than 13 years of age, or murdering while committing, or while fleeing after committing, robbery, rape, kidnapping, arson, an act of terrorism or burglary.

However, based on the requirements of the 1978 U.S. Supreme Court case, Lockett v. Ohio, factfinders at the trial level, as well as appellate courts, must also consider several “mitigating factors” before upholding a death sentence.

Since 2002, Ohio has outlawed the execution of individuals with intellectual disabilities. Those convicted and sentenced to death have several ways of appealing their conviction in state and federal courts. One common federal appeal, a habeas corpus proceeding, alleges that the state violated the convict’s constitutional rights during the state’s prosecution.

Ohio’s Governor has the power to pardon convicts, or commute their sentences. Death row convicts, when all other appeal efforts have failed, can make a clemency request of the governor. By January 1, 2016, Governor Kasich had commuted— reduced— the sentences of five death row convicts, sparing their lives.

Race and the death penalty

People of color have comprised 43 percent of those executed since 1976.

UT Law Professor Jelani Exum

UT Law Professor Jelani Exum

“It’s the proportions that are out of whack with the general numbers of each race in society. About 34 percent of people executed since 1976 have been black, 8 percent Hispanic— but blacks are only 13 percent of America’s population.”
—Jelani Exum, UT Law Professor

“In pure numbers, there are more whites on death row than blacks,” says University of Toledo Law Professor Jelani Exum who teaches a law school course on sentencing. “But it’s the proportions that are out of whack with the general numbers of each race in society. About 34 percent of people executed since 1976 have been black, 8 percent Hispanic— but blacks are only 13 percent of America’s population.”

Ohio’s task force to reform the death penalty

In 2014, the Ohio Supreme Court appointed a Joint Task Force to assess the state’s death penalty. Abe Bonowitz, of the anti-death penalty advocacy organization, Ohioans to Stop Executions (OTSE), said in a phone interview, “There was this whole process of evaluating Ohio’s death penalty system, and it found that [Ohio] failed the ABA’s (American Bar Association) standards for fairness….”

The task force submitted a report along with 56 recommendations for reform in Ohio, including the recommendation that a defendant suffering from a serious mental illness at the time of the crime should not be eligible for the death penalty.

Bonowitz promoted OTSE’s work to implement the task force recommendations at the TPA-hosted Gamso death penalty talk, and distributed a flyer that states, “these recommendations were intended to ensure fairness and accuracy in Ohio’s death penalty.”

OTSE and other groups, including the Ohio Alliance for the Mental Illness Exception, are currently working to reform the laws so they incorporate some of these task force recommendations.

A ban on cruel and unusual punishments

In 1972, the U.S. Supreme Court decided Furman v. Georgia, where three African-American men were sentenced to death for murder and rape. The Court held, in a close 5-4 decision, that the State of Georgia’s use of the death penalty violated the Eighth Amendment of the U.S. Constitution’s ban on cruel and unusual punishment. Article 9 of Ohio’s own state constitution echoes the Eighth Amendment, stating, “Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.”

“What does cruel and unusual punishment mean?” asked Law Professor Exum. “It means that punishment cannot be disproportionate to the offense, there must be something to protect against arbitrariness, and [there must be] respect for human dignity….”

“OTSE considers the death penalty and death row itself— sending someone to wait to be executed— a violation of human rights and cruel and unusual,” said OTSE’s Bonowitz.

“[The ACLU believes] that the death penalty is unconstitutional, and violates the Eighth Amendment ban against cruel and unusual punishment,” Mike Brickner said. “We simply believe that the government should not be in the business of taking anyone’s life.”

In the Furman case, Justice Douglas pointed out that the U.S. Supreme Court does not consider capital punishment to be cruel, “unless the manner of execution can be said to be inhuman and barbarous.”

“The death penalty is inherently both cruel and unusual and therefore is unconstitutional. Capital punishment dates back to the days when decapitations, hangings, and brandings were also the norm.”
— Ohio Supreme Court Justice William O’Neil

However, in Toledoan Anthony Belton’s case, one lone Ohio Supreme Court Justice, William O’Neil opposed the use of the death penalty, stating:

“The death penalty is inherently both cruel and unusual and therefore is unconstitutional. Capital punishment dates back to the days when decapitations, hangings, and brandings were also the norm. Surely, our society has evolved since those barbaric days. The United States is one of just a few civilized countries that still permit state executions…The time to end this outdated form of punishment in Ohio has arrived…”

Public opinion for and against the death penalty

In the United States, currently about 60 percent of Americans support capital punishment for people convicted of murder, according to a 2016 poll by the Gallup Company.

Though OTSE’s Bonowitz claims, “When you ask [a person] do you prefer the alternative of life without the possibility of parole, more Ohioans and more Americans support that…”

A 2014 poll by ABC News supports Bonowitz’s claim. The poll found that, though 61 percent of respondents supported the death penalty, when given a choice, 52 percent chose “life imprisonment without parole,” and only 42 percent chose the death penalty, as the preferred punishment.

Despite considerable support for the death penalty, the number of executions has been on the decline over the past 30 years, with 28 executions nationwide in 2015 compared to 98 executions in 1999. In 1996, courts meted out 315 death sentences, but only about 49 such sentences were ordered in 2015, according to DPIC.

For the time being, the death penalty is the law in Ohio. Jeff Lingo, chief of the Criminal Division of the Lucas County Prosecutor’s Office stated, “I think in the proper case, [the death penalty] is a proper punishment. I agree with the opinion it should be applied in the worst of the worst homicides.”

“I know in the [death penalty] cases that we have been indicting,” he said, “I believe they are the worst of the worst criminals.”

The Ohio Attorney General’s Office and its
“2015 Capital Crimes Report” provided information for this article.

Additional information:

How hard is it to kill someone?

Demonstratively difficult.
From 1890 to 2010, the United States imposed capital punishment on over 8,000 citizens, with 3.15% experiencing a botched execution (meaning the execution went wrong in some way).

Specific success rates can depend on what method is used. Rates of botched executions for the five methods approved by the Federal Government are as follows:

Lethal Injection 7.12%
Lethal Gas 5.4%
Hanging 3.12%
Electrocution 1.92%
Firing Squad 0%

Currently, the 31 states with capital punishment all provide lethal injection as the primary method. Despite having the highest rate of failure, lethal injection became Ohio’s exclusive form of execution in 2001.

Unusually cruel: lethal attempts

Ohio’s struggle to find a successful combination of drugs for lethal injections haven’t just caused legal problems— for everyone involved, a botched lethal injection is a gruesome spectacle.

May 2, 2016: Joseph L. Clark
Lethal Injection: Successful
Time: 90 minutes

After execution technicians spent 22 minutes trying to find a suitable vein, a catheter was inserted into Clark. A few minutes later his vein collapsed, his arm began to swell, he raised up his head and said, “It don’t work. It don’t work” five times. Technicians then closed the curtains surrounding him and spent 30 minutes finding another vein. Media witnesses reportedly heard “moaning, crying out and guttural noises.” He was pronounced dead 90 minutes after the execution began.

May 24, 2007: Christopher Newton
Lethal Injection: Successful
Time: Two hours

Prison medical staff struggled to find veins on the arms of the 265-pound man. Before being declared dead two hours after the execution process began, Newton was stuck at least ten times with needles before a shunt was used to inject the lethal concoction.

September 15, 2009: Romell Broom
Lethal Injection: Unsuccessful
Time: More than two hours

Efforts to execute Broom were halted after more than two hours of failed efforts to find a suitable vein. After the first hour, he reportedly attempted to help the executioners find a good vein. During the attempt, he winced and grimaced with pain. Broom is said to have covered his face with both hands, sobbing and heaving. Ohio Gov. Ted Strickland finally ordered the execution to be halted. Broom is currently back on death row.

January 16, 2014: Dennis McGuire
Lethal Injection: Successful
Time: More than 25 minutes

Once injected with the hydromorphone and midazolam, McGuire reportedly gasped for air for about 25 minutes as the drugs took effect. Witnesses reported McGuire struggling, his stomach heaving and fists clenched. His family then filed a lawsuit (which they dropped in 2015) alleging that McGuire experienced “repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain.” Said the family: “It looked and sounded as though he was suffocating.”