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What’s wrong with Ohio’s death penalty? Not a thing



Published: Sun, June 8, 2014 @ 12:00 a.m.

Ohio’s death penalty is back in the news. Federal Judge Gregory Frost has ordered a 2 Ω-month moratorium on executions to figure out what is wrong with the death penalty. The answer is simple — there is nothing wrong with Ohio’s death penalty.

The temporary order delays executions scheduled for July and August while attorneys prepare arguments over the state’s new lethal- injection procedure. Ohio has led the way in lethal injection. In the last five years, Ohio has used a three-drug protocol, moved to a single- drug protocol and now utilizes a two-drug protocol. Along the way, Ohio has utilized a number of different drugs for executions — at times being the first state to use a new drug.

In January, the execution of Dennis McGuire did not go as planned. The execution that was supposed to last about 10 minutes lasted 25 minutes instead. Last month, in Oklahoma Clayton Lockett’s execution went really bad. In fact, the execution was stopped and Lockett later died of a heart attack.

Penalty rhetoric

Judge Frost has been up to his elbows in death- penalty rhetoric dating back to a “botched” execution in 2009. He has used terms like “human experimentation” when talking about Ohio’s lethal injection protocol and “lip service” when talking about the Department of Rehabilitation and Correction’s policy implementation.

In fact, this isn’t the first time in the last five years that Judge Frost imposed an execution moratorium. With that said, Ohio has been at the forefront of execution policy nationwide.

Only Texas has executed more people than Ohio since 2010. That year, chronicled in my book “The Executioner’s Toll, 2010,” Ohio carried out eight executions all on the heels of Judge Frost’s first moratorium.

Ohio’s death penalty works because executions are being carried out. That is not the case in most states and therein lies the problem. In Pennsylvania, there are approximately 193 men and women on death row and that number grows every year. Only four states have more killers on death row.

However, Pennsylvania has executed only three killers since 1978 and all three volunteered to be executed. Since that time, 24 death- row inmates died of natural causes and three committed suicide. The last person executed in Pennsylvania was Philadelphia serial killer Gary Heidnik in 1999.

Death row

Ohio has 143 men and women on death row. In 2010, when Ohio carried out eight executions, the state added an equal amount of offenders to death row with newly imposed death sentences.

In 1994, the heyday of the modern death penalty, there were 328 men and women sentenced to death nationwide. In 2010, there were far fewer offenders sentenced to death, 112, still more than twice the number executed that year.

As I argued in “The Executioner’s Toll, 2010,” few believe that the 3,100 or so men and women on the nation’s death rows will ultimately face execution.

Let’s say that death-penalty verdicts continue at 2010’s pace of 112 per year for the next 10 years. There would be approximately 4,500 men and women on death row. Let’s say that all 32 states with the death penalty executed one offender a month for the next 10 years — that is not entirely realistic since only eight states have more than 120 offenders on death row — at that frantic, and frankly impossible, pace, death row would still be populated.

Arbitrary

Since the reinstatement of the death penalty in 1976, the likelihood that an offender sentenced to death will ultimately be executed is about 1 in 7. The problem with the death penalty isn’t lethal injection or the electric chair and firing squad as some states are considering; the problem is having a criminal sanction that is sparingly sought, rarely imposed, and the act of carrying it out has become so rare that it appears arbitrary.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino


Comments

1tnmartin(233 comments)posted 3 months, 1 week ago

let us begin by FIRING the clown in black robe. Set him to tasks more in keeping with his demonstrated abilities. I suggest his new role be cleaning cages at the Humane Society. Or scraping used gum from the underside of seats at Cleveland stadium. Or the like. Seems to be the limit of his ability.
Let us then change the method of execution to hanging. It works, it's cheap, it's certain, and a rope can be used many times. Think of it as an effort in "sustainability".
And let us move to end this idiocy of someone on Death Row for 20 or 30 years. If the facts of the matter are not in dispute, and they generally are not, then sentence should be carried out in well under a week.

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2lajoci(227 comments)posted 3 months, 1 week ago

I'm with tnmartin!

Let's increase the brutality factor -- say, feed 'em to the lions. After all, zoos are strapped for cash, just like other publicly funded entities, so cutting costs by using the condemned for lion food seems ever so much more cost efficient.

Or how about this: work them to death on chain gangs cleaning out ditches, digging graves, carrying rocks, rowing river barges full of fresh sod for the lawns of the rich and famous!

Come on! All that human capital going to waste! All that energy!

Feed them the line that if they work hard and follow the rules, they can go home when the job is done. Then say, "We lied," and pop 'em quickly.

At the very least, harvest the organs, eyes, and skin of the condemned for sale on the secondary market. It would help defray the cost of prisons and law enforcement.

Let's get creative with our condemned! Think of it as an untapped resource, a growth industry with a very, very steep upside.

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3tnmartin(233 comments)posted 3 months, 1 week ago

sigh. I don't think my position has anything to do with brutality. The benefit, if one may use the term, of hanging with respect to other means of execution, is that it is in fact nearly instantaneous, meaning no lingering suffering. Quite a contrast to stoning or fed to dogs or executed by flamethrowers -- the first being a regular practice of the Islamo-heathens and the next two being reportedly practices of that haven of true Socialism, North Korea.
Capital punishment is not, and should not be, a trivial matter. But it is an arguably legitimate means of societal response to certain well defined and particularly heinous crimes. In our own nation's history, such crimes have included aggravated murder, forcible rape, arson of inhabited dwellings, and, I believe, forgery and counterfeiting. We can argue the appropriateness of a particular crime.
What *IS* a serious matter, and one that the nation can not stand, is the intrusion of these worthless imbeciles-in-black-robes into such matters. No one died and elected them as barons exercising unaccountable and unchecked power over we the people. This judge should already be out of a job and under societal banishment, much like a slobbering drunk with body odor and unchecked flatulence. Be a good example for other idiot judges.

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4dudleysharp(18 comments)posted 3 months, 1 week ago

Matt:

16% of all death row cases are executed and an additonal 50% are removed for other reasons, inclusive of by appellate decsion, other deaths and commutations.

So 66% of the current 3100 will be removed and the number of cases will not rise to the level you indoicated.

The main problem, as in Pa, is judges that do not homor the law or the jury decsions and do everything they can to stop death sentneces from being carried out.

Virginia has executed 70% of their deathr row inmates (108 executions) since 1976 and has done so within 7.1 years, on average.

All states could do that with judges that respected the law.

Judges Responsible for Grossly Uneven Executions
http://prodpinnc.blogspot.com/2013/11...

Judges are responsible for grossly uneven executions, demonstrating dictatorial like contempt for the law in those states where it is, virtually, impossible to execute confirmed murderers.

If abortions had to be individually, approved or rejected, by judicial ruling, and some states approved them at a 50-70% rate and others at a 0-10% rate, do you think the media might notice?

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5dudleysharp(18 comments)posted 3 months, 1 week ago

Martin:

The judges are not imbeciles.

They are doing this all on purprose, to kill the death penalty.

They are dictators in robes, with contempt for the law as well as the will of the people.

I think it was Thomas Jefferson who predicted this debacle.

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6tnmartin(233 comments)posted 3 months, 1 week ago

Dudley is perhaps correct. I was being kind. The old rule that I try to apply goes along the lines of "never ascribe to evil intent that which is adequately explained by incompetence". Or, imbecility.
In any event, the real remedy is to begin removing these bums with "extreme prejudice". Not advocating lynch mobs (though the thought is, at least momentarily, appealing). But removal, expedited removal. Like, before sundown today expedited. And deny their application of unemployment compensation.
There's no justification for these clowns having an opinion on this that anyone is bound to respect. Personal opinions are another matter and we all have them. But on most matters of life, a judge's personal opinion should have no more weight than the checkout clerk at the grocery store. It is a reproach to us that we've given these clowns the deference to which they think their position entitles them. Ain't so. Fire a bunch.

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7lajoci(227 comments)posted 3 months, 1 week ago

Heck yes!

Do away with judicial review altogether!

Who needs due process? Whatever the mob says, let 'er rip!

Why bother with trained, experienced judges, when the check-out clerk could make a decision at half -- no, a quarter . . . NO! A thousandth -- of the expense and aggravation!

Personal opinions, legal opinions -- what's the difference anyway?

They're all opinions, just as "theories" are all just guesses, in the end.

"Opinion?" Nothing but personal taste. So there's no more weight in the Supreme Court justice's (or the appellate court judge's) than the check-out clerk's!

"Theory?" Nothing but a wild guess! So your guess is as good as mine, or his, or hers!

(Ain't democracy grand?)

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8tnmartin(233 comments)posted 3 months, 1 week ago

take a breath. Perhaps a sip of something cool?
We are not talking mob lynchings. What we ARE talking about is the erroneous, and damaging, and wrong, assumption that judges have the right and power to "make law" via their pronouncements.
Find that in the Constitution. Go on, we'll wait. Or not, because it's not there. And never was. Nor was such ever intended.
Judicial review is a nice slogan. But to borrow a phrase, "justice delayed is justice denied". For a convicted murderer to be on death row for as much as thirty years is, I submit, justice delayed. And it is the result of some bum in a robe substituting his/her own personal preferences for the law and the facts. "Review" should not need to take more than a few days. Not decades.
And you know it.
We've seen trial judges refuse to issue a death sentence in cases that certainly meet ALL the criteria, simply because of personal wishes. That is an open matter of the judge's substitution of PERSONAL opinion for law and for justice. Again, the judge has no right whatever to do this and his own opinion should have no more weight than that of the grocery clerk of your choice. If he's unable to work under those conditions, Wal-Mart is hiring. Though Wal-Mart expects associates to follow the company policies and procedures, and to be honest. Know very many lawyers that make that standard? Me neither, and I recall several local judges who were not exactly honest. You think that they get more honest at higher levels? Guess again.
Judicial Review has come to mean in fact rule by diktat of those who are too often unelected and unaccountable. That is inconsistent with a free country. Perhaps it might have flown in dynastic China or the Russian Empire. But not in the United States.
FIRE these bums! And make them wear clown suits with big red noses. Might engender some humility. Sorely needed.

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9lajoci(227 comments)posted 3 months, 1 week ago

Listen, martin: learn the meaning of the term "opinion" as it pertains to legal issues.

Law moving too slow for you? Tell that to the hundreds of convicted felons whose convictions were overturned for one reason or another, including many on death row.

Here's a flash for you: the death penalty is irreversible -- make a mistake there and "Whoops!" ain't gonna cut it.

By the way -- you have a real bug up your patooty about judges.

And you have the China-Russian Empire thingy backwards -- due process and judicial review are precisely what separates us from totalitarian states.

(You need to go back to school and pay attention in government class.)

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10steivo(510 comments)posted 3 months ago

What kind of due process did the victims get?

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11lajoci(227 comments)posted 3 months ago

What does that even mean, eivo?

So, what is your idea of process? Grab somebody and punish them?

Are you advocating for knee-jerk, mob rule, and a since-the-cops-arrested- them-they-must-be-guilty approach to crime and punishment?

Seriously!

Go read The Ox-Bow Incident for a gripping dramatization of the rush-to-judgement gone bad!

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