News: Law Group: Stop the Killing

ABA says Ohio's death penalty is unfair

Sep 26, 2007 at 2:06 pm

A person convicted of capital murder in Hamilton County is 6.2 times more likely to get a death sentence than someone convicted in Franklin County and 3.7 times more likely than in Cuyahoga County, according to the American Bar Association (ABA).

The attorneys' group released a report Sept. 24 — "Evaluating Fairness and Accuracy in State Death Penalty Systems: The Ohio Death Penalty Assessment Report" ( — that concludes the system of capital punishment used in the Buckeye State is "flawed." The report calls for a moratorium on executions until the system is fixed.

"The state of Ohio cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought or imposed," the report says. "It is therefore the conclusion of the members of the Ohio Death Penalty Assessment team that the state of Ohio should impose a temporary suspension of executions until such time as the state is able to address issues and recommendations throughout this report."

That might not be so easy. The governor of Ohio believes the same death penalty system is fair.

"Given his knowledge of the system, the governor thinks the death penalty is administered fairly and effectively here in Ohio," says Keith Daily, spokesman for Gov. Ted Strickland. "He wouldn't support the death penalty here in Ohio if he didn't think it was administered fairly and effectively."

Asked how Strickland came to this conclusion — through research, personal experience or specific sources of data used for a thorough assessment of the death penalty process — Daily didn't respond.

"After the governor and his legal team have the opportunity review the report's findings and recommendations, he will be able to respond directly to them," Daily says. "It would be irresponsible not to consider the report, so he intends to look at it very carefully."

Race matters
Assuming Strickland has access to the same information the ABA has, he should already know that the Ohio Supreme Court and Ohio Bar Association created the Commission on Racial Fairness to study every aspect of the court system. Its conclusion, cited in the ABA report, is that a "perpetrator is geometrically more likely to end up on Death Row if the homicide victim is white rather than black." The ABA assessment "confirms the existence of racial bias. ... Those who kill whites are 3.8 times more likely to receive a death sentence than those who kill blacks."

Jeff Gamso, legal director for the American Civil Liberties Union of Ohio (ACLU) says he's not surprised by these findings or any of the 10 major criticisms of capital punishment in Ohio.

"The ABA told us what we knew," Gamso says. "There are geographic and racial disparities. We knew that anecdotally, but we didn't necessarily know how things worked statewide."

Started in 2001, the ABA's Death Penalty Moratorium Implementation Project collects and reviews data on international and domestic death penalties. It analyzes governmental and judicial responses to the administration of the death penalty and encourages states to examine their laws and processes.

When reviewing a state's use of capital punishment, the project creates a board of experts to look at a host of data, including law enforcement tools and techniques, prosecutors and their activities, DNA testing and labs, defense services, jury instruction, Death Row demographics and appeals processes.

The Ohio team put forward criticisms that prove what Sister Alice Gerdeman, president of Ohioans to Stop Executions, already believes — Ohio's system is in bad shape.

"If this was a school report, this would be called failure," she says. "This is not a system we can fail at. This is people's lives."

In Ohio, the ABA notes, Death Row inmates and their attorneys aren't even permitted to use public-records requests to gain access to materials the general public can get.

"It certainly struck me as being totally ridiculous and making the state of Ohio not look very compassionate, nor fair," Gerdeman says.

The ABA says Ohio has what the organization calls a "virtually nonexistent discovery process" following a murder conviction. Even though the state requires inmates to prove grounds for being granted relief after a conviction, "the state denies petitioners access to the discovery procedures necessary to develop those claims."

Stacked deck
The ABA report criticizes the Ohio Supreme Court for, among other things, failing to conduct a meaningful review to show death sentences are appropriate when ordered.

"Death sentences should be reserved for the very worst offenses and offenders, however, the Ohio Supreme Court does not engage in a meaningful comparison of death-eligible and death-imposed cases to ensure that similar defendants who commit similar crimes are receiving proportional sentences," the report says.

A recent case, Ohio v. Tenace, proves this, according to Gamso, attorney for Troy Tenace (see "Making a Killing," issue of July 12, 2006). The state supreme court threw out Tenace's death penalty because of childhood abuse he endured — being prostituted by parents for drugs, forced to steal to support a parent's drug habit and suffering serious mental health issues. But many Death Row inmates with similar childhoods haven't had their death sentences changed to life in prison, as Tenace's was, Gamso says.

Additional criticisms levied by the ABA include:

· death sentences carried out on people with severe mental disabilities,

· inadequate procedures to protect the innocent,

· inadequate access to experts and investigators and

· inadequate qualifications for defense counsel.

The ABA also points to insufficient compensation for lawyers representing indigent clients. Noting that the Ohio Public Defender sets a statewide maximum hourly rate and caps fees on cases, the report fails to mention that there are no caps for the cases presented by prosecutors. Both sides are funded with taxpayer money, stacking the deck in favor of the prosecution.

The ABA makes specific recommendations for each of the weaknesses identified. Gerdeman has just one suggestion.

"I would like to see a thorough study of the report, and then I would like to see the state legislature, the governor (and) the attorney general look at this together and say, 'The ABA's respected — and if they see major problems in fairness in the state, we will put together a blue ribbon committee that can look at this from all different angles, and we do not want to risk more mistakes. While that committee is working, we will not execute.' " ©