COLUMBUS — It has been more than a year since Robert J. Van Hook went to the state’s lethal injection gurney at the Southern Ohio Correctional Institution for the brutal stabbing of David Self in Cincinnati.
His execution was the last on then Gov. John Kasich’s watch.
Since taking office, current Gov. Mike DeWine has issued reprieves for every death row inmate scheduled to die so far this year, in some cases twice. No decision has been made on the next scheduled execution on Dec. 11 — that of James Galen Hanna, convicted of killing his cellmate in 1997 while serving a life sentence for a West Toledo murder.
The holdup is caused by the state’s inability to obtain the drugs it prefers to use to execute convicted killers. It’s also partly because of a federal judge’s ruling that Ohio’s method of execution constitutes cruel and unusual punishment, even though that finding was later overturned on appeal.
Still the delay in carrying out death sentences has raised the question: Is Ohio’s death penalty dying a slow death?
“I think at some point the governor has to let us know whether or not there’s a reasonable prospect of getting the drugs,” state Rep. Bill Seitz (R., Cincinnati) said. “If that cannot be done, he needs to let us know that and then invite us into consultation with him and prosecutors to come up with an alternative method. That’s something I’m perfectly willing to do.”
As attorney general for the prior eight years, Mr. DeWine’s office was usually successful in getting courts to overturn lower decisions blocking the path to the execution chamber in Lucasville.
But as governor, the Republican in February pointed to an opinion rendered by federal Magistrate Judge Michael Merz in Dayton who compared Ohio’s three-drug process for putting inmates to death to “waterboarding.”
“Ohio is not going to execute someone on my watch when a federal judge has found it to be cruel and unusual punishment,” Mr. DeWine said. He ordered the Department of Rehabilitation and Correction to come up with a new protocol that would pass constitutional muster.
He has stopped short, however, of issuing a general moratorium on executions.
Mr. DeWine is staunchly pro-life in regards to abortion, but he co-sponsored Ohio’s law reviving the death penalty while he was a state senator.
As attorney general, his office convinced the Cincinnati-based U.S. 6th Circuit Court of Appeals to overturn a prior ruling by Magistrate Judge Merz that also held Ohio’s method of execution was cruel and unusual.
Last month the appeals court overturned Magistrate Judge Merz’s latest opinion that served as part of the basis for Mr. DeWine’s reprieves. The appeals court found that while Ohio’s method may be painful, it is not unconstitutionally cruel and unusual punishment.
But Abe Bonowitz, co-director of Death Penalty Action, said questions about the death penalty in Ohio should not come down to simply how the state should kill people. They should focus on whether or not it should.
Mr. Bonowitz, though he noted he has not spoken to the governor, said he hopes Mr. DeWine is now viewing the death penalty through a new lens, given his role as Ohio’s top elected executive.
“He’s no longer a legislator,” Mr. Bonowitz said. “He’s no longer attorney general. He did his job as attorney general, and now he’s looking at this with fresh eyes.”
Lingering over all of this has been the state’s struggles to obtain the drugs needed to carry out the only method of execution allowed under Ohio law.
The state’s current protocol — the one criticized by Magistrate Judge Merz — calls for using the sedative midazolam to render an inmate unconscious followed by the paralytic rocuronium bromide to shut down breathing and then potassium chloride to trigger cardiac arrest.
The federal judge based his opinion on testimony suggesting that midazolam does not induce sufficient and lasting unconsciousness to prevent the condemned from feeling pain as the follow-up drugs take effect.
The foreign and domestic owners of such drugs have objected to their use in executions and have refused to make them available for that purpose.
“The drug companies have said that if you use our products as part of the execution protocol we will stop doing business with the state altogether,” DeWine spokesman Dan Tierney said. “That endangers their product being taken away for legitimate use in state hospitals and for people who are in state custody in DRC or (the Department of Youth Services)…”
The governor cited that problem as one of the reasons that he recently delayed the execution of Cleveland Jackson that had been scheduled for November. With his half-brother Jeronique Cunningham, Jackson opened fire on a crowded kitchen in a Lima apartment during a drug-related robbery, killing two girls, ages 3 and 17.
The primary reason for the reprieve, however, was the filing of a disciplinary complaint against Jackson’s prior two lawyers who are accused of all but abandoning him.
The execution is now set for Jan. 13, 2021.
Rob Dunham, executive director of the Washington-based Death Penalty Information Center, noted that every state in the country to the east and north of Ohio either has no death penalty or has placed it on hold. The ODIC is a non-profit organization that gathers statistical, legal, demographic, and other information on the death penalty, but it does not take a position on execution itself.
“We’re seeing the death penalty disappear in whole parts of the country,” Mr. Dunham said. “Literally, no one is left in New England who still has the death penalty on its books. Pennsylvania is the only state in the northeast with the death penalty, and it has a moratorium.”
Even Ohio’s two neighbors with the death penalty, Indiana and Kentucky, have not used it in about a decade. The number of states with the death penalty has slowly fallen to 29 from 38 in 2001.
Mr. Dunham said the fading of the death penalty is further evidenced by the fact that fewer people nationally are being sentenced to death in the first place.
The Ohio House earlier this year voted overwhelmingly to take the death penalty off the table for offenders deemed seriously mentally ill at the time of their crimes, even if not ill enough to trigger a verdict of not guilty by reason of insanity.
That was one of dozens of reforms that were recommended several years ago by a task force convened by Ohio Supreme Court Chief Justice Maureen O’Connor. The vast majority of those recommendations have not been implemented.
As lawmakers work to refine the application of the death penalty — narrowing the “strike zone” as Mr. Seitz puts it — the lawmaker said he could see revisiting the method for putting people to death in Ohio as part of that discussion.
“There are methods that have already been blessed by the U.S. Supreme Court — hanging, firing squad, and the electric chair,” he said. “We’re on sound ground to include any of those options — at least from a constitutional perspective.
“If we try something new, that will mean further delays and appeals,” Mr. Seitz said. “We’ve heard talk of nitrous oxide, but that would mean a new round of appeals.”
One lawmaker had floated the idea of using fentanyl seized from drug traffickers. The potent synthetic opioid painkiller responsible for thousands of accidental overdose fatalities each year was used in an execution in Nebraska.
But Mr. DeWine swiftly shot that idea down as unlikely to survive constitutional scrutiny. There are concerns about guaranteeing the quality of illicit fentanyl obtained through drug raids as well the possibility that access to the legal painkiller could again be cut off by its manufacturers.
Mr. Dunham said there has been discussion in some states about finding a new method of execution.
“In some states, yes. In most states, no,” he said. “Part of that is there is diminished public support for capital punishment, so legislators are happy to just let it lie. Secondly, legislators who want to bring back dormant death penalty methods don’t want botched executions or drugs obtained illegally. When you look at what Americans think of other methods, it’s not something that most states can stomach.”
Lethal injection has been Ohio’s sole legal method since 2001. Previously, inmates could choose between the electric chair and lethal injection, but lawmakers moved swiftly to remove the electric chair as a choice when a condemned inmate announced he would choose electrocution in order to make his death as uncomfortable as possible for the state.
Dubbed “Old Sparky,” the state’s electric chair is now on display at the Ohio Reformatory Museum in Mansfield.
Bills have been repeatedly introduced over the years to abolish the death penalty in Ohio, but they’ve gone nowhere.
Mr. DeWine has steered clear of talking about his personal feelings on the death penalty.
“The governor is still having conversations with the legal team and [the department of corrections] to determine where we are on things,” Mr. Tierney said. “If a new protocol is put in place, it has to satisfy the constitution and legal concerns and comply with Ohio law. Ohio law does restrict the death penalty to lethal injection.”
Source: toledoblade.com, Jim Provance, October 13, 2019
⚑ | Report an error, an omission, a typo; suggest a story or a new angle to an existing story; submit a piece, a comment; recommend a resource; contact the webmaster, contact us:
deathpenaltynews@gmail.com.
Opposed to Capital Punishment? Help us keep this blog up and running! DONATE!
"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
