Austin Myers would become the youngest death row inmate in Ohio this week if he is sentenced to die for the murder of an 18-year-old Navy recruit.
The 19-year-old Clayton man faces a death-penalty sentence or life in prison without parole when jurors begin penalty phase deliberations in Warren County.
“It’s certainly rare,” said Richard Dieter, executive director of the Death Penalty Information Center. “A year or two different, they would be exempted (as juveniles) from the death penalty completely.”
Myers is about five years younger than the youngest death row inmate currently in Ohio, Mark Pickens, 24, of Hamilton County, according to a review of Ohio Department of Rehabilitation and Corrections records by this newspaper. He also is about three years younger than the youngest inmate executed since the death penalty was reinstated in the U.S.
Last week, Myers was found guilty - with death penalty specifications - of murdering Justin Back, 18, during a burglary in January at Back’s home outside Waynesville and disposing of his body in woods in Preble County.
Judge Donald Oda II told jurors to be prepared to decide whether to sentence Myers to death as early as today.
Prosecutors agreed to drop death penalty specifications in the case of Myers’ co-defendant, Timothy Mosley, 19, of Clayton, in exchange for his testimony. Mosley testified that he stabbed Back 21 times while they wrestled on Back’s kitchen floor, but that Myers was the key planner.
Myers, Mosley’s classmate at Northmont High School, now could be sentenced to die for his crimes, amid a global debate on the death penalty.
Ohio is one of 32 U.S. states where the death penalty is legal, although a moratorium has stayed 11 inmates’ scheduled execution dates in Lucasville, at least until February.
Youths and death penalty
Though rare, teens have been executed in Ohio and around the country. In 1897, William Haas, a 17-year-old Hamilton County boy, was put to death — the first person executed by electric chair in the state.
The Ohio Supreme Court declared capital punishment unconstitutional in 1972, but it was reinstated in 1981.
Scott Carpenter, a 22-year-old executed in 1997 in Oklahoma, is the youngest put to death since reinstatement; the youngest Ohioans were both 28: Adremy Dennis on Oct. 13, 2004, and Darrell Ferguson on Aug. 8, 2006.
In addition, between reinstatement and 2005, when the U.S. Supreme Court struck down the the death penalty for juveniles, 22 people were executed in the U.S. for crimes they committed as youths, according to the Death Penalty Information Center.
In recent years, the amount of time between sentencing and execution has lengthened and currently averages about 15 years, according to Dieter.
Legal scholars continue to study the execution of young killers.
A recent study by Robert Smith, a professor at the University of North Carolina, of 100 recent executions in the U.S. found more than one-third were under 25 years old when they committed the capital offenses.
Some Ohio law makes allowances based on age, but death penalty law applies equally to everyone 18 or older.
Myers turns 20 on Jan. 4.
While Myers’ case is pending, Warren County Prosecutor David Fornshell has declined comment. Before the trial started, he said his view on capital punishment was irrelevant to the case.
“At the end of the day, we are asking for the death penalty against Austin Myers. That’s not my decision, that’s the citizens of Warren County,” Fornshell said.
Most death row inmates are older than Myers, but some are younger, including several in federal prison, according to Dieter.
Factors to consider
While not a factor in presenting the case for indictment, Myers’ youth is expected to be an issue as his lawyers offer evidence mitigating the murder and abuse of corpse, as well as his role in planning the crime.
In pre-trial motions, one of Myers’ lawyers, Gregory Howard, indicated they expect to introduce school and other juvenile records and possibly call a psychologist. It was unclear if Myers would testify.
Howard did not respond to questions about how he planned to raise the age issue.
After hearing more evidence, the jury will consider a range of factors, including prior criminal record, how much planning was done, as well the fact that Myers is only 19.
“That factor in and of itself is typically not going to be enough to prevent a court from imposing the death penalty if there are other aggravating factors,” said Lori Shaw, a law professor at the University of Dayton. “It’s an incredibly difficult call.”
There have been 1,389 executions since the death penalty was reinstated, according to the Death Penalty Information Center and the Ohio Department of Rehabilitation and Corrections.
Death penalty prosecutions have slowed, and now people with mental disabilities and juveniles are exempted.
Some appeals in Ohio are based on questions about whether the current two-drug protocol for lethal injections is “cruel and unusual punishment,” as prohibited by the constitution. A recent review by the Ohio Supreme Court also suggested changes to improve fairness in death penalty cases, but not abolishment.
On the other side of the debate, the Ohio Prosecuting Attorneys Association is proposing legislation to shield the identity pharmacists making drugs used in executions and to lessen regulation of doctors administering them, as well as legalize the use of single, compounded doses of pentobarbital in lethal injections.
Meanwhile, more than 3,000 inmates are awaiting execution around the U.S.: 139 in Ohio, including 138 men and one woman, according to the Ohio Department of Rehabilitation and Corrections.