DaytonDailyNews.com

The everlasting American and Ohio debate about the death penalty, Vol. 2007:

A committee of the American Bar Association has trashed Ohio's approach to executions, proposing a moratorium on them. Specifically, it says the state only complies with four of 93 useful standards in applying the ultimate punishment.

Examples: The state doesn't require that all DNA evidence be preserved for the entire time a convict is on death row. And it doesn't do enough to assure that defendants have competent lawyers, or enough to assure that claims of innocence are fully considered upon appeal.

The committee also finds that the death penalty is applied inconsistently. The report singles out Hamilton County Prosecutor Joe Deters as a particularly aggressive seeker of executions. It says that a convicted murderer in his domain is 6.2 times more likely to be sentenced to die than one in Franklin County, and several times more likely than one in Cuyahoga County.

Mr. Deters responds, in part, that the bar committee was made up of a bunch of death-penalty opponents and liberals, which seems largely true, and that it had no prosecutors.

Mark Godsey, of the University of Cincinnati's Ohio Innocence Project, which has helped free some inmates, was a member.

However, he also has been a federal prosecutor; another member (who abstained on the vote about the moratorium) prosecuted Terry Nichols in the Oklahoma City bombing case. Also a member: U.S. Rep. Stephanie Tubbs Jones, a Democrat and former prosecutor from Cleveland.

From Dayton, Judge Michael Merz, a Republican and chief magistrate at the federal district court, also served. He abstained from the vote on the moratorium, on the grounds that a sitting judge shouldn't be doing that sort of thing. However, he agrees with the critique that the committee makes of Ohio's system.

He handles all the capital cases for Montgomery, Hamilton and other nearby counties when they involve federal appeals, as they all do unless the convict wants to be executed. He says the various counties differ a lot as to the kinds of cases in which the prosecutor seeks the death penalty.

(Judge Merz does personally oppose the death penalty as a policy choice, but he notes that he has made decisions upholding the penalty in specific cases.)

Ultimately, the question to be asked about the bar association's proposal is not about who was on the committee, but whether the facts are right. The committee has enough credibility that the state government ought to be expected to at least reply in a serious way.

Nothing will resolve the issue forever. Debate goes on and on, for example, as to whether the death penalty is a deterrent. Several studies in this decade have concluded it is, but some fair-minded people believe the findings are murky, or worse.

Even if it is a deterrent, though, there's at least one more question to be asked: Can the same deterrence be achieved through mandatory life sentences without the possibility of parole? In recent years, a lot of states have adopted such sentences.

The case for the death penalty has been undermined in recent years by the revelation that DNA evidence proves some death-row inmates innocent; by the fact that most advanced societies abjure executions, yet keep their crime rates down; by evidence (reiterated by the bar committee) that racial issues (especially as to race of the victim) influence verdicts; by the malfunctioning and resulting ugliness of death-by-injection systems, such as Ohio's (which is being challenged in court); and by growing public skepticism.

At the very least, a state ought to be able to demonstrate adherence to reasonable rules before putting people to death, and a certain, consistent logic as to when it will — and won't — do that.