Dealing with life and death issues in the state’s criminal justice system should not be left to the discretion of county prosecutors.
That is the position of the man who helped write Ohio’s death penalty laws — Ohio Supreme Court Justice Paul F. Pfeifer — and is a view some of Summit County’s leading legal professionals also hold.
In urging the repeal of Ohio’s capital punishment law during testimony in Columbus last week before the House Criminal Justice Committee, Pfeifer said the law “does not work the way we expected.”
“What has enfolded is an application that is hit-or-miss, depending on where you commit the crime and the attitude of the prosecutor in that county,” Pfeifer testified.
The law is fraught with such inequity that he has come to call it “a death lottery,” he said.
Pfeifer, a moderate Republican, urged the committee to approve a bill that would scrap the 30-year-old law. He said laws enacted in 1996 and 2005, providing the option of life in prison without parole, have made capital punishment unnecessary.
Democratic state Reps. Ted Celeste of Columbus and Nickie Antonio of suburban Cleveland are sponsoring an anti-death penalty bill.
Akron defense attorney Brian M. Pierce, who has been practicing law here since 1994 and is certified by the state to serve as lead counsel in death penalty cases, has handled 10 such cases in his career. He said he agrees with Pfeifer’s position that the law should be repealed — for many of the same reasons.
“The irony of it is that Pfeifer is the one who wrote the death penalty law when he was a state senator,” Pierce said. “I think that’s pretty telling.”
Pierce said a most troubling aspect of the law is that it places what he described as “an enormous amount of discretion in the hands of county prosecutors, who are elected officials.”
“They’re politicians,” he said. “And I think sometimes cases become death penalty cases for the wrong reasons. Part of the problem is there’s no consistency, because we have 88 counties in Ohio and 88 different prosecutors.
“Every murder is egregious, but a murder in one jurisdiction is a death penalty case, and in another, it’s not.”
The distinction often has political or economic undertones, he said.
“As most people are aware, to prosecute one of these capital cases takes a huge toll on the county budget,” Pierce said.
Summit County Common Pleas Judge Elinore Marsh Stormer, who has handled two death penalty cases during her seven-year tenure on the bench, said it would be inappropriate to comment about Pfeifer’s views. However, she did talk about one of her concerns.
“It’s very expensive, and the state already has an $8 billion budget shortfall,” she said, referring to the gap Ohio faced in balancing its most recent two-year budget, which began July 1.
Stormer said she has seen legal studies placing the cost at $2 million or more from the beginning of a death penalty case to its end.
A 2009 report by the Death Penalty Information Center in Washington, D.C., concluded states waste hundreds of millions of dollars on the death penalty, draining state budgets during the economic crisis and diverting funds from more effective anti-violence measures, such as more police officers on city streets.
Citing a nationwide poll of police chiefs by RT Strategies, a bipartisan public affairs research firm in Washington, the center found that chiefs ranked the death penalty last among their crime-fighting priorities.
The poll also found the police chiefs do not believe capital punishment deters murder.
Pfeifer expressed the same opinion in his testimony in Columbus, referring to the state’s use of lethal injection.
“A comfortable, easy death is less punishment than life in prison without parole,” Pfeifer told the committee.
Summit Prosecutor Sherri Bevan Walsh, who has said her office will seek the death penalty against the suspect in the Craigslist slayings, declined to comment about Pfeifer’s testimony.
Chances of repeal slim
The chances of repealing the law appear to be slim, given continued support for capital punishment in Ohio by both Republicans and Democrats.
The committee chairman, Rep. Lynn Slaby, a Republican, a former appeals court judge and one of Walsh’s predecessors as prosecutor, said he didn’t know whether there would be another hearing on the issue.
“I would still support the death penalty as an option as far as penalty is concerned for the worst of the worst,” Slaby said after the three-hour hearing.
Pfeifer’s testimony took the spotlight after Chief Justice Maureen O’Connor’s decision to convene a state task force to study the law to make sure it works as it should.
But O’Connor, who also held office as Summit prosecutor, has made it clear the task force should not consider a ban on capital punishment.
Nevertheless, University of Akron law professor J. Dean Carro, head of the school’s appellate law division, said Pfeifer’s views “are becoming — more and more — mainstream views around the country.” He cited several reasons for the shift in thinking.
“In some cases, unless the government does DNA testing, there is a degree of uncertainty as to the reliability of the conviction,” Carro said.
The second reason is there is a different standard for judging death in some counties as opposed to others, he said, “and that feeds into the argument that where you commit the aggravated murder will dictate whether you face the death penalty.”
It is the crux of Pfeifer’s argument for doing away with the law, Carro said.
Ed Meyer can be reached at 330-996-3784 or firstname.lastname@example.org.