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.
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.
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.
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