Law cannot persuade where it cannot punish.
An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and misapply even the best laws. He that would make his own liberty secure must guard even his enemy from oppression.
— Thomas Paine
From the earliest days of statehood in Ohio, the death penalty was an option as a punishment for serious crimes. Those early executions, generally carried out in the county where the crime occurred, were usually by hanging. In 1885, the state legislature required that all executions be carried out at the state penitentiary and in 1897 the switch was made from hanging to the electric chair.
In 1972 the United States Supreme Court struck down all death penalty statutes throughout the country. A rapid rise in the number of death penalty cases and concerns about the types of crimes for which the death penalty was being imposed led the court to render that 5-4 decision. Four years later, the Supreme Court gave the stamp of judicial approval to several new statutes and the machinery of state-sponsored executions was again operational.
One thing was clear from the Supreme Court’s decisions, however: There could be no automatic imposition of the death penalty. States would have to allow judges and juries some discretion and provide guidance in making capital punishment decisions.
In Ohio, the death penalty is now available for only one crime — aggravated murder. When a prosecutor’s office makes the decision to seek the death penalty in such a case, the indictment must specify at least one of 10 aggravating factors under Ohio Revised Code section 2929.04 and the Ohio Supreme Court must then be notified because, if a death sentence is imposed, the defendant has a right to an automatic appeal to the state’s highest court.
In a death penalty case, a “death-qualified” jury must be seated. That is, the jurors must agree that they have no philosophical or religious opposition to the death penalty and would follow the law in deciding whether to recommend the death penalty if the defendant is convicted. Also, the attorneys for the defendant must have received special training and be on a list of attorneys certified to defend death penalty cases.
If the defendant is convicted, the case then moves to a penalty phase. In that phase, the defendant may present evidence in mitigation of the death penalty — an attempt to convince the jury to impose life imprisonment without parole, or life imprisonment with parole eligibility after a set number of years. The jury then recommends a sentence to the judge, who ultimately makes the decision as to sentencing.
Among the factors that allow the imposition of the death penalty in Ohio are:
• That the offense was committed for hire.
• That the offense was committed to escape being punished for another offense.
• That the defendant had previously been convicted of the purposeful killing of another person.
• That the victim of the offense was a law enforcement officer.
• That the victim was a witness who was killed to prevent them from testifying.
• Or that, in the course of the offense, the defendant killed two or more persons.
A team of judges, lawyers, legislators and advocates recently prepared a series of recommendations on amendments to the death penalty process in Ohio. Several bills are now pending in the Ohio legislature in response to those proposals, including one from Republican Rep. Niraj Antani of Miamisburg, whose bill would abolish the use of the death penalty. Antani reports that a handful of other House Republicans support his efforts.
There are currently 144 men and one woman on death row in Ohio. Since 1976, there have been 53 executions in Ohio, bringing the total number of executions in the state to 491. There are a myriad of websites, both pro and con, dealing with the death penalty. A list of all Ohio death row inmates and their committing counties can be found at http://www.drc.ohio.gov/public/deathrow.htm.David Hejmanowski is the judge of the Probate/Juvenile Division of Delaware County Common Pleas Court.