Paul Pfeifer told state lawmakers two years ago that “abolishing the death penalty would be a needed improvement.” The Ohio Supreme Court justice added: “It will happen. Will it be today, tomorrow, or in this session of the General Assembly? More problematic. But the day will come when Ohio no longer has a death penalty.”
Did the state move closer to ending the death penalty in recent weeks, its messy execution of Dennis McGuire resonating globally?
Ohio has been among those states scrambling to revamp the mix of drugs for lethal injections. They have encountered resistance from drug manufacturers, especially in Europe, reluctant to be part of death sentences. Some states have sought help from lightly regulated compounding pharmacies. Some have aimed to draw a curtain around their pursuits.
The Guardian reported last week that six days before an execution scheduled for Wednesday, Louisiana still had not obtained the drugs for its lethal injection.
The execution of McGuire amounted to an experiment of sorts, Ohio trying a drug combination never before used in applying the death penalty. Witnesses reported McGuire gasping loudly for air, making snorting and choking sounds, the process of killing him taking longer than usual.
Few have any sympathy for McGuire, and understandably so. He raped and murdered Joy Stewart, who was 22 years old and 30 weeks pregnant. Some have responded to the complications involving lethal injection by advocating a return to firing squads, or the electric chair, or the gas chamber. Worth recalling is that states moved to lethal injection as part of achieving greater consistency in conducting the death penalty, as ordered by the U.S. Supreme Court.
Still, as Justice Pfeifer told lawmakers, concerns have been mounting about what he called “a death lottery.” He argued that too often the question of whether to pursue a death sentence turns on such variables as the location of the killing and the attitude of the prosecutor. More, racial disparities long have surfaced in its application.
“It is very difficult to conclude that the death penalty, as it exists today, is anything but a bad gamble,” the justice said.
Add to the concerns the expense of capital punishment. Weigh the costs against the benefits.
In 2008, California examined its use of the death penalty and arrived at an estimated cost of $137 million a year. It put the annual cost of a system with a maximum penalty of life in prison at $11.5 million. Around the same time, the Urban Institute found the average cost of a death sentence in Maryland was $3 million, or $1.9 million more than a comparable case without the death penalty. Maryland abolished capital punishment last year.
Kansas calculated that death penalty cases are 70 percent more expensive. It broke down the expense, the pretrial and trial activity the most costly, consuming 49 percent of the total, appeals taking up 29 percent, and incarceration and execution, 22 percent.
These and other analyses can be found at the Death Penalty Information Center (www.deathpenaltyinfo.org). One response to the high cost calls for acting more swiftly, especially reducing the years, even decades, of appeals. The difficulty is, the death penalty is so final, requiring the utmost care, no less than the Supreme Court insisting that it is “different.”
As the court held six years ago: “When the law punishes by death, it risks its own sudden descent into brutality, transgressing the commitment to decency and restraint.”
You don’t want to err.
Since 1973, 143 prisoners have been freed from death row, either acquitted, the charges dismissed or pardoned due to evidence. Six have been released in Ohio, most recently, Joe D’Ambrosio in 2012. The four freed since 2003 each spent more than 20 years on death row. And if the state had moved quickly to execute? It would have engaged in its own barbarity, killing a person who was wrongly convicted.
On Thursday, Dewey Jones walked free after nearly 20 years in prison, murder charges dismissed. Tyrone Noling has been on death row for nearly 18 years, as the case against him has collapsed. Better to have executed him long ago?
Chief Justice Maureen O’Connor has formed a task force to look for ways to improve the conduct of the death penalty in Ohio. Its purpose reflects a distinction at the core of capital punishment, between the brutality of the killer and our shared code of humanity. In other words, death may be necessary, but it must be done right.
Yet the question persists: Is capital punishment worth the cost and the risk? A death penalty doesn’t serve as much of a deterrent. The resources could be deployed elsewhere, local law enforcement, state prisons and other aspects of the criminal justice system coping with strained budgets.
Then, there is the tough, effective and less expensive alternative, life in prison without the possibility of parole, the punishment swift and without the many complications.
Douglas is the Beacon Journal editorial page editor. He can be reached at 330-996-3514, or emailed at email@example.com.