Ohio Supreme Court Justice Paul Pfeifer wants Gov. John Kasich and the Ohio Legislature to end capital punishment. As a state senator in 1981, Justice Pfeifer helped draft Ohio’s death penalty statute.
Justice Pfeifer recently wrote in the Cleveland Plain Dealer, “We set out to enact a law that would give prosecutors the capability to seek capital punishment for the absolute worst offenders.” Justice Pfeifer went on to write, “The law was meant to be employed only when a certain set of aggravating circumstances warranted execution. But over the years, the death penalty has come to be applied more pervasively than we ever intended.”
Review of verdicts
After years of reviewing death penalty verdicts rendered through a statute he helped write, Justice Pfeifer wrote, “I have come to the conclusion that we are not well served by our ongoing attachment to capital punishment.”
Justice Pfeifer’s position is reminiscent of U.S. Supreme Court Justices Harry Blackmun and John Paul Stevens. Justice Blackmun wrote before his retirement in 1994, renouncing his career-long acceptance of capital punishment, “The death-penalty experiment has failed. I no longer shall tinker with the machinery of death.”
Justice Stevens was one of the co-authors of Gregg v. Georgia, the U.S. Supreme Court’s 1976 decision that reinstated the death penalty. However, in 2008, Justice Stevens wrote, “The imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the state (is) patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”
Justice Pfeifer’s about-face comes at a time when Ohio is literally setting the standard for capital punishment nationwide. First, Ohio took the bold step of changing its execution protocol. All 35 states with capital punishment used a three drug protocol. In 2008, after a contentious debate, the U.S. Supreme Court found that the three-drug protocol did not violate the Eighth Amendment ban against cruel and unusual punishment.
A year later, Ohio moved to a single drug protocol. Ohio began using a single lethal dose of sodium thiopental for executions. Washington has since adopted the protocol and other states are considering the single-drug method as well.
Last year, Ohio carried out more executions than any other state, with the exception of Texas. The eight executions in 2010 were the most in any year since Ohio reinstated the death penalty in 1999. Ohio has executed 41 prisoners since that time, with 157 still on death row.
Last month, the Ohio Department of Rehabilitation and Corrections announced that the state will substitute pentobarbital for sodium thiopental in its execution protocol. Sodium thiopental’s only U.S. manufacturer will stop producing the drug.
Some states have postponed executions due to the shortage. Not Ohio. The state looked to Oklahoma which has carried out two executions with pentobarbital. The difference is that Oklahoma used the drug as part of a three drug protocol, Ohio will use a single lethal dose of pentobarbital to carry out executions beginning in April.
Justice Pfeifer premises his new opposition to capital punishment on the idea that life without parole is a suitable alternative sentence. In 2005, the Ohio legislature authorized prosecutors to seek the penalty of life without the possibility of parole as an alternative to the death penalty.
Justice Pfeifer argued as a result of the new law, “We have seen the number of death sentences drop precipitously. Prosecutors and jurors have told us—by their actions—that life without the possibility of parole is a more desirable outcome to a murder trial than a death sentence.”
During Justice Pfeifer’s swearing-in last month, he urged Gov. Kasich to commute all death row sentences to life without parole. There is little chance of that happening. Gov. Kasich has made clear his support for the death penalty.
It is worth noting that repeal doesn’t always mean forever; sometimes it doesn’t even mean a few years. Two states that recently repealed the death penalty, New Mexico and New Jersey, are considering reinstating it.
The death penalty is a politically charged issue. Left to the design of elected policymakers, capital punishment is more a campaign prop than a meaningful tool of the criminal justice system.
Matthew T. Mangino is the former district attorney for Lawrence County and a featured columnist for the Pennsylvania Law Weekly. He can be reached at www.mattmangino.com)