“Damning.” That’s how Ohio Attorney General Dave Yost describes his own report on the state of Ohio’s capital punishment system. Yost paints a picture of a death penalty system that is “broken,” “enormously expensive,” and so sluggish inmates are “more likely to die of suicide or natural causes than execution.”
But Yost argues the death penalty itself isn’t the problem. Rather, it’s a capital punishment system that “makes promises of justice that it does not keep.” His solution? A new, controversial approach to kickstart executions.
The state of death row in Ohio
Currently there are 119 people on Ohio’s death row, and the state hasn’t carried out an execution since 2018. Because the state can’t get the drugs for its lethal injection protocol, Yost’s report acknowledges, none of those inmates face an imminent execution.
Already inmates spend more than 21 years on death row on average — a duration which has risen steadily since the early 2000s and seems likely to grow further. Yost chalks that up to the range of appeals in state and federal courts as well as through the governor’s clemency process.
It means death row inmates are dramatically more expensive than a typical inmate. While the exact cost of Ohio’s capital punishment system is difficult to quantify, Yost cites analysis prepared by the Ohio Legislative Service Commission suggesting death row inmates cost between $1 and $3 million more than life imprisonment; the researchers note that’s between two-and-a-half and five times as much as non-capital cases.
Yost’s back of the envelope math for Ohio puts the total added cost at $121 to $363 million.
“It’s a stunning amount of money to spend on a program that doesn’t achieve its purpose,” Yost’s report states.
Since Ohio enacted the death penalty in 1981, 336 people have received a death sentence, but only 56 of those sentences have been carried out. Yost portrays that track record as a failure to deliver justice. Meanwhile, the attorney general argues the 87 cases in which courts have reduced sentences or even released individuals due to ineffective counsel, prosecutorial misconduct, or successful appeals, don’t indicate shortcomings in Ohio’s capital punishment system. Instead, they depict an appeals process working properly.
“If we were starting from scratch to design a system for the ultimate punishment,” Yost writes, “whether that punishment is execution or, instead, life in prison without parole — neither death penalty opponents nor death penalty supporters would create anything like Ohio’s current system, which produces churn, waste, and endless lawsuits but nothing else.”
Despite all those hurdles, Yost stands by the death penalty.
“What is lacking is the political will to ensure that capital punishment is an effective tool for justice for those who perpetrate the most heinous crimes,” he argues in the report.
The Capital Journal asked Yost’s office for an interview or statement elaborating on why he still supports capital punishment in light of the system’s numerous challenges. They did not respond.
What to do about it?
Instead of starting from scratch, Yost offers a new path to the same destination. Back in January, he joined state Reps. Brian Stewart, R-Ashville and Phil Plummer, R-Dayton, as they introduced a measure directing state officials to use nitrogen hypoxia for executions if lethal injection is unavailable.
“Capital punishment is the law of the land today,” Stewart argued, “the law should be followed, and existing, duly-enacted capital punishment should be carried out to give the victims’ families the justice and finality that they deserve.”
The lawmakers introduced their proposal less than a week after the state of Alabama became the first in the country to execute someone by that method. According to the Associated Press, Kenneth Smith thrashed and gasped as Alabama officials administered the gas.
Ohio’s executions have not moved forward since 2018 because drug makers have refused to sell drugs for lethal injection to the state. Yost called it an “abdication of sovereignty of the state of Ohio” to let that refusal deter executions.
But in the wake of Alabama’s execution, the country’s three biggest nitrogen manufacturers have taken steps to ensure their gas isn’t used in executions.
Stewart and Plummer’s legislation attempts to address supply issues by reestablishing confidentiality provisions for suppliers of nitrogen gas and making any violations a fourth-degree misdemeanor. Citing the prevalence of nitrogen — there’s more of it in the air we breath than oxygen — Yost even floated the possibility of Ohio producing its own nitrogen gas.
Stewart said there are about 30 inmates on death row who have exhausted their appeal, and are waiting for an execution date. “And so if this bill were enacted, those executions could be carried out on the normal schedule.”
Yost argued, “This is not something that should be taken lightly, but at the same time, there are crimes that are so heinous, that are so against basic humanity, that they deserve the ultimate punishment.”
Still, the legislation doesn’t change anything about the legally-required appeals process, which Yost’s report repeatedly cites as a substantial driver of costs and delays. In the report, he criticizes the duration of the appeals process, but at the press conference argued those safeguards are worth it, to avoid making an “irreversible mistake.”
But at the same time he acknowledged the importance of the appeals process, Yost also cast doubt on exonerations.
“People use the word exoneration very loosely,” Yost argued. “In Ohio, you don’t have to prove actual innocence. The law now is simply that you have to prove that there was a fault.”
Those faults often take the form of prosecutorial misconduct, like Brady violations in which the prosecutor doesn’t share evidence with the defense that could support their case. While Yost insisted there’s no excuse for those violations, “that doesn’t mean the person was innocent.” Years after the fact, Yost argued, evidence or witnesses may no longer be available.
“So (prosecutors) fold their tent,” he said, “not because the person was actually innocent, but because they were technically innocent.”
Report reactions
While Yost lobbies for policy changes to spur the capital punishment system forward, some organizations question whether or how it can be salvaged.
The Catholic church for instance has been a steadfast opponent of the death penalty for years. Catholic Conference of Ohio Executive Director Brian Hickey argued the death penalty violates “the dignity of human life.” It’s a point on which the church is consistent. The same dignity of life argument underpins its opposition to abortion.
“Our position is there’s no humane way to carry out the death penalty,” Hickey argued. “There’s no humane way to strap down an individual who’s already in prison, and whether it’s nitrogen hypoxia, or some kind of drug, or even a firing squad, from our perspective it’s all inhumane.”
Hickey stressed the church stands with victims’ families and loved ones, ready to offer support directly and advocating for policy changes at the state level to help people heal.
“But at the same time, we’re very adamant that an execution can’t bring back the life of the person who was unjustly murdered,” he said, “and more violence and more taking a human life does not solve any problems.”
Robin Maher, who heads up the Death Penalty Information Center, explained her organization doesn’t take a position on capital punishment. Instead, it operates as a kind of clearing house for information about the death penalty, and if there are problems in how it’s applied the organization highlights them.
“It’s a bit bewildering,” she said, “to see a report that lays out all the ways in which the death penalty is not working correctly, and then conclude that the answer is to try to use it more.”
Maher argued the death penalty writ large sets up difficult expectations for victims’ families. After the sentence is reached, they obviously want to see justice carried out, but capital cases have a much more complex appeals process by necessity. Maher noted Ohio’s own track record of overturning earlier sentences illustrates the importance of that process, and she called Yost’s statements casting doubt on those decisions “surprising.”
She said that the mood around the death penalty has shifted substantially in the last 20 years, and potential jurors have significant doubts about its fairness, cost, and effectiveness.
“So when these cases are coming back, because of errors that were made, we’re finding the juries feel very differently,” she explained. “Even prosecutors feel differently about whether these cases are sufficiently death-worthy.”
That’s not an indication of guilty people being, as Yost described, “technically innocent,” Maher argued, but rather a societal change in what’s expected to reach a guilty verdict in a death penalty case.
Maher acknowledged the frustration Yost, Stewart, Plummer and other policymakers feel about the state of capital punishment. But she argued nitrogen hypoxia isn’t the solution they’re hoping it will be.
“(When) we talk about all of the problems with the death penalty, and the administration of the death penalty in Ohio, as it’s laid out in this report, pivoting to a new method of execution doesn’t solve any of those problems,” she explained.
“It seems to be a quick and easy solution, but it won’t be in practice,” she added. “It won’t solve any of the meaningful issues and problems that that this report identifies.”
This story was originally published by the Ohio Capital Journal and republished here with permission.
