Death penalty overhaul weighed

Changes expected to be the most widespread in 30 years.


A high-profile task force is getting ready to pitch the most extensive overhaul of capital punishment Ohio has seen in more than 30 years.

Although major reforms appear to be in store, the group is not expected to recommend a halt to executions in Ohio.

The Ohio Supreme Court and Ohio State Bar Association’s death penalty task force hopes to issue its report early next year. Those involved say it will recommend more safeguards to ensure that defendants in capital cases receive fair trials and effective legal counsel.

Perhaps its most controversial recommendation will be to require prosecutors to get approval from a statewide panel before bringing charges against a defendant for which execution is a potential penalty.

The task force, led by retired 2nd District Appeals Court Judge James Brogan, met regularly for two years, chewed over both mundane and meaty issues to determine how the state could administer capital punishment in the most fair and judicious manner.

From the outset, though, task force members had to agree that they would not debate abolishing or putting a temporary hold on capital punishment.

“We were specifically required to agree we wouldn’t make a recommendation on whether we should or shouldn’t have the death penalty,” said Ohio Public Defender Tim Young, a task force member.

Brogan said he will write a report to Ohio Supreme Court Justice Maureen O’Connor and the Ohio State Bar Association early next year and he hopes lawmakers will adopt its recommendations. Dissenting opinions – most likely from prosecutors – will be included, Brogan said.

Among the items likely to be recommended:

  • Ohio should no longer execute offenders who suffered from serious mental illness at the time of the crime;
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    Ohio should eliminate felony murder – in which someone is killed during the commission of another felony such as a robbery — as a death penalty eligible crime;

  •  

    Juries should be drawn from voter registration and licensed driver lists who are U.S. citizens, not just voter lists, and jury instructions should be revised to be in “plain English”;

  •  

    There should be a statewide public defender system for representing indigent defendants in capital cases; and

  •  

    Death sentences cannot be considered or imposed unless strong evidence is presented such as DNA linking the defendant to the homicide or a videotaped, voluntary confession.

 

Brogan and others said the most controversial recommendation calls for creating a death penalty review panel in the state attorney general’s office. Essentially, prosecutors would have to receive approval from the panel before they could bring charges for which the death penalty is a potential punishment.

State Sen. Bill Seitz, R-Cincinnati, a task force member and legislative leader on criminal justice issues, said that proposal is vehemently opposed by prosecutors, and it is not likely to be adopted by the General Assembly.

If the General Assembly were to adopt most of the recommendations, it would be the most comprehensive overhaul of Ohio’s death penalty statutes since 1981 when the current law took effect.

Franklin County Prosecutor Ron O’Brien, who is president of the Ohio Prosecuting Attorneys Association and a task force member, predicts that a death penalty reform law could open the door to all sorts of changes.

“The big problem is and the reason the Legislature has decided not to go in that direction over the years is once you open it up there is 42 amendments to each proposal, and some are to make it impossible — even if you had Timothy McVey — to get a death sentence,” said O’Brien, referring to the 1995 Oklahoma City bomber who was the first federal prisoner executed in 2001 in nearly four decades.

The task force included law professors, defense attorneys, judges, prosecutors and others. Minutes show that the prosecutors opposed certain recommendations, and some of their proposals did not win majority support from the task force members.

O’Brien said county prosecutors will likely push lawmakers to consider, including their proposals in a death penalty reform bill. He pointed out that during the mitigation phase of sentencing in a death penalty case, the defense is allowed to present testimony about the offender’s difficult childhood, drug use or other mitigating factors, but victim impact statements are not admissible. Prosecutors want those to be allowed, he said.

O’Brien said capital punishment is still merited in Ohio.

“I think there are those cases that should be death eligible and the two I always point to are Timothy McVey and the people up at the Boston Marathon bombing,” O’Brien said. “It should be judiciously and rarely exercised with the protections that this group is talking about.”

A national report released earlier this month from the Death Penalty Information Center said 39 people were executed in America in 2013, which is only the second time in 19 years that fewer than 40 have been put to death, and the number of new death sentences was near its lowest level since capital punishment was reinstated.

The number of executions and death sentences peaked in the mid-1990s but have been declining since then. Nine states executed inmates in 2013 with Texas topping the list with 16 and Ohio ranking fourth with three, according to the report.

Ohio has used capital punishment since its early days of statehood. Between 1803 and 1885, executions were carried out by public hanging in counties where the crimes occurred and later executions were moved to the state penitentiary in Columbus. In 1897, Ohio started using the electric chair.

In 1972, the U.S. Supreme Court ruled executions unconstitutional so Ohio revised its death penalty statutes but the high court rejected the new law in 1978. Lawmakers again revised it and adopted the current law, which took effect in 1981. In 1993, death row inmates were given a choice between lethal injection and the electric chair. The chair, infamously nicknamed Old Sparky, was later retired and taken away as an option.

In February 1999, Ohio resumed executions for the first time since 1963. In its history, Ohio has executed 391 convicted murderers. There are 140 inmates presently on Ohio’s death row.

According to the Death Penalty Information Center, 143 death row inmates have been exonerated nationwide since 1973, including six in Ohio.

Meanwhile, Democratic state representatives Nickie Antonio of Lakewood and Dan Ramos of Lorain introduced a bill this month calling for abolishing the death penalty.

“I’d like to see Ohio move to abolish the death penalty and instead use life without parole as the most extreme punishment given,” Antonio said. “This is an opportunity to ask members of the General Assembly – given where we are, given what we know, given that 18 states have abolished the death penalty – is it time we take a look?”



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