Inability to Execute Prisoner Highlights Unsolvable Problems in Administering the Death Penalty in Ohio

Sitting in a conference room listening to a speakerphone linked to the Death House at the Southern Ohio Correctional Facility during executions was the worst part of my former job as Attorney General of Ohio.

The process as it has developed over the years that Ohio has embraced the Death Penalty attempts to objectify and dehumanize the inherently unobjective emotional and ultimately horrifying process of carrying out  state action to put a human being to death. Conventions designed to make those of us participating feel removed from true nature of what transpired included a rigid adherence to a preset schedule, and a constantly updated documentation log with an entry for each small step taken in the process (i.e.”inmate takes a sip of water”) and attempts to maintain anonymity for the staff ultimately charged with carrying out the physical acts required to accomplish lethal injection.

In my experience all those efforts only served to underscore the fact that it is impossible to “normalize” the process of putting a human being to death.

The experience earlier this week during the scheduled execution of Romell Broom when corrections staff spent literally hours trying to find a vein to inject the lethal cocktail is not unique.  Part of the reason is that doctors and nurses, those best trained to insert needles into veins in the most humane way possible are prohibited by their professional ethics from participating in executions.  The result of this fact is that the individuals charged with inserting the needles generally only do so on the rare event of an execution.

The State of Ohio and other states have successfully persuaded courts, including the United States Supreme Court, that lethal injection is the least inhumane method for the state to put people to death.  The inescapable problem is that the very act of a government putting a person to death is inherently inhumane.

But there is an even bigger problem in the Ohio’s ongoing struggle with the Death Penalty. It is the arbitrary and often absurd results of the all or nothing litigation that is constitutionally required when a death sentenced is issued in Ohio.  The problems begin with wide disparity that death penalty defendants face in seeking representation. The socio-economic and racial factors that affect the quality of representation in Death Penalty cases have been well documented.  One needs to look no further that the most recent completed execution in Ohio to see proof of that disparity. Jason Getsy was the trigger man in a murder for hire scheme, the bottom of the economic pecking order in committing a heinous crime just a few miles from my own home. He was executed even though the Ohio Parole Board recommended clemency because the others involved in the scheme were spared the death penalty. Yet at the end of the day the poorest guy in the scheme was executed and the rest were spared.

A 2007 ABA Study further details the economic and geographic disparity that plagues the administration of the death penalty in Ohio.   The ABA study found that between 1981 and 2001, “…that those who kill Whites are 3.8 times more likely to receive a death sentence than those who kill Blacks and that  the chances of a death sentence in Hamilton County are 2.7 times higher than in the rest of the state, 3.7 times higher than in Cuyahoga County, and 6.2 times higher than in Franklin County.”

There is also an argument that Ohio’s embrace of the Death Penalty makes us less safe.

Appeals and Habeas Corpus claims related to  death penalty convictions diverts millions of dollars of taxpayer money dedicated to litigation in the both the State and Federal Courts from other criminal justice purposes.  Reversals of death sentences on technicalities often force retrial of cases decades after the crime is committed allowing dangerous criminals to walk away when prosecutors are unable to reconstruct evidence or key witness are no longer available.

The idea of punishing the most heinous murders and rapists in Ohio by putting them to death is very satisfying to victims of crime and the rest of us who care about justice for those victims. The reality of the  death penalty in Ohio and elsewhere unfortunately is much less satisfying. The State’s inability to execute  Romell Broomearlier this week provides an excellent opportunity for Ohioans to reconsider the reality of the death penalty in our state and to weigh its costs and benefits.

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