VOICES: The death penalty is arbitrary and should be repealed

In 2010 as a Montgomery County Common Pleas Court judge, I was assigned a death penalty case. I couldn’t do it. I refused to hear the case because I believed Ohio’s death penalty laws did not meet the demands of our state and federal Constitutions.

At the time, I issued an explanation for my recusal, which I summarize here as a plea to Ohio’s legislative bodies that have before them House Bill 183 and Senate Bill 103, both of which propose to abolish the death penalty in Ohio.

The Declaration of Independence, upon which this country was founded, declared life to be an unalienable right. The Fifth and Fourteenth Amendments to the United States Constitution gave life, liberty and property a special level of protection. Article I, §1 of Ohio’s Constitution declares that enjoying and defending life is an inalienable right. These documents do not specifically prohibit capital punishment, but they accord “life” as a special right with a special protection.

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In 1972, the death penalty was declared unconstitutional by the United States Supreme Court in Furman vs. Georgia due to the arbitrariness of capital punishment laws. In his concurring opinion, Justice Potter Stewart wrote: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”

After Furman, state legislatures, including Ohio, went to work passing new death penalty laws based on less arbitrary language developed by the American Law Institute (ALI). So far, the arbitrariness has not disappeared. In fact, in 2010 the ALI disavowed the language they had created, saying, “[T]he Institute withdraws Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

Perhaps Justice Harold Blackmun expressed this point best. When dissenting in Callins v. Collins, he stated: “It is virtually self-evident to me now that no combination of procedural rules or substantive regulations can ever save the death penalty from its inherent constitutional deficiencies . . . The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.”

Here are just a few of many examples of arbitrariness.

The death penalty is arbitrary by race. Almost every county prosecutor in Ohio is white, as is almost every Common Pleas Court judge, and most of every jury. It may not be intentional, but it is no surprise that the Ohio Death Penalty Assessment Report showed that those who kill whites are 3.8 times more likely to receive a death sentence than those who kill African-Americans.

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The death penalty is almost exclusive to larger counties that can afford to prosecute death cases. Since 1982, around half of Ohio’s counties have not put someone on death row. Getting away with being put to death very much depends on where the murder occurred.

Capital punishment is unreliable when we have convicted and sentenced 11 innocent people to die. For every five executions Ohio has carried out, one innocent person has been exonerated from death row. It is not a deterrent. States with the death penalty tend to have the most murders, while states without capital punishment have the fewest.

Justice isn’t just when it is random or unevenly applied. Justice requires passage of HB183 and SB103.

A.J. Wagner is a retired Montgomery County Common Pleas Court judge and currently president and co-founder of the ButterflyPAC.