Written by OJPC volunteer Lily Meyer
Ohio Senator Nickie Antonio, a Democrat representing the Cleveland suburb of Lakewood, has introduced legislation that would ban the state’s death penalty every General Assembly since she was elected in 2011. This year, though, something changed. In a press conference held via Zoom in February, a beaming Sen. Antonio declared proudly, “For the first time, we announced today a bipartisan team of legislators to abolish the death penalty in Ohio.” Not only is Sen. Antonio’s team bipartisan, it is bicameral: this spring, both the Ohio House and Senate are considering bills that, if passed, would make Ohio the 24th state in the nation to eliminate capital punishment. Needless to say, this legislation would be tremendously impactful in Ohio. It could also change the future of the death penalty in the United States as a whole.
In terms of population, Ohio is the seventh most populous state in the country; its death row is the fifth largest, with 134 prisoners awaiting execution. Since 1999, Ohio has executed 56 capital defendants, which is the 8th most in the nation. Ohio ranks fifth in its numbers of death row exonerations, when innocent people are freed, at 11. According to the state Attorney General, the average capital prisoner spends over 17 years on death row—a tortuous period of time, and one that costs taxpayers up to ten times more than a non-death-sentence case. As of 2019, Governor Mike DeWine has repeatedly suspended all executions through his reprieve powers, seeking a method that will not run afoul of a federal court ruling on the often-agonizing cocktail of lethal chemicals the state previously used. To abolition advocates, this pause in capital punishment presents a clear opportunity to prevent Ohio from ever executing another person.
Certainly there is reason to believe this can occur. In 2020, Ohio became the first state to ban executions for individuals with severe mental illness at the time of their crime. The nonprofit Death Penalty Information Center points out the significance of Ohio’s new law: their 2020 year-end report notes, “Every prisoner executed [nationally] in 2020 had one or more significant mental or emotional impairments… or was under age 21 at the time of the crime for which he was executed.” It bears noting that several states have functionally abolished the death penalty without rendering it illegal; the governors of California, Oregon, Pennsylvania, and now Ohio have issued moratoria on the death penalty without taking it off the books, and 12 states have now gone a decade without a single execution. Still, functional abolition is precarious. It leaves prisoners and their families in limbo, with the threat of execution ever present.
Ruth Friedman, the director of the Federal Capital Habeas Project, which represents defendants on federal death row, knows this threat well. Between 2003 and 2019, the U.S. government did not conduct a single execution; in 2019 and early 2020, the Justice Department, under William Barr, executed six men, making 2020 the first year in American history that the federal government carried out more capital punishments than every state in the country combined. To Friedman, legal—not functional—abolition is paramount. In an email, she told me that it would be “momentous” for Ohio’s legislature to pass a full ban. Not only does Ohio have one of the nation’s biggest death rows, she pointed out, it has “one of the highest rates of execution outside the south. And for every five of those executions an Ohio death row prisoner was found to be innocent. A painful majority of Ohio’s condemned prisoners are Black men. It is past time for the state to rid itself of a deeply-flawed practice that does not keep its citizens safe.”
Among the strongest arguments for death penalty abolition is the fundamental inequity of the practice. In Ohio, the majority of capital sentences come from courts in only five counties; though half the murder victims in the state are Black, more than 70 percent of capital defendants were convicted of killing a white person. Happenstance of race and geography, then, can be the difference between life and death. This flies in the face of basic concepts of fairness. To University of Baltimore law professor John Bessler, it violates the due process clause of the Constitution: how can the death penalty be fair, he asks, when it is so arbitrarily applied?
Bessler, who has written six books on capital punishment, also considers executions a violation of the Eighth Amendment, which bans cruel and unusual punishment. In his 2012 article “Tinkering Around the Edges: The Supreme Court’s Death Penalty Jurisprudence,” he writes that “the fundamental questions to be asked [now] are whether it is ‘cruel’ to intentionally inject an inmate with lethal chemicals and whether executions—in a factual sense—have become too ‘unusual’ to be allowed any longer.” If Ohio bans the death penalty in 2021, executions will become significantly more unusual. This, per Bessler, would increase pressure on the Supreme Court, which, he notes, “has not squarely confronted the death penalty’s constitutionality since the 1970s.”
Kevin Werner, the Ohio Justice and Policy Center’s policy director, predicts that the Court’s avoidance of capital punishment will end after 26 states abolish the death penalty. This renders Ohio, which could soon become the 24th, both symbolically and practically crucial. Aside from California, Ohio has long led non-Southern states in capital conviction rates and executions. Now, we have a chance to reverse our role. As the nonprofit Ohioans to Stop Executions puts it, “Ohio is critical to maintaining the momentum to repeal the death penalty [and] Ohioans have always been leaders, not followers.”
Our leadership on this front is integral. If we abolish the death penalty, we might well save lives nationwide.