The ACLU opposes capital punishment because it violates the constitutional ban on cruel and unusual punishment, is administered arbitrarily and unfairly, and fails to deter crime or improve public safety.
What's Happening in Ohio
The United States Public Health Service’s Division of Import Operation has alerted Ohio’s Department of Rehabilitation and Correction that if Ohio seeks an offshore source for the execution drug sodium thiopental, it will be in violation a U.S. District Court ruling that prohibits its importation.
The reason cited is the absence of Food and Drug Administration (FDA) approval for the use of sodium thiopental. The state previously had a Drug Enforcement Administration license to import the drug, but it also needs FDA’s consent before it can do so.
Ohio legislators passed an “execution secrecy law” in late 2014; they hoped it would convince small drug makers (so-called “compounding pharmacies”) to sell sodium thiopental to the state. But the American Pharmacists Association, as well as many Ohio compounding pharmacists, have declined to make and sell execution drugs.
The law also was criticized for hiding important public business. Ohio Public Defender Tim Young called the plan as “an obviously illegal attempt to obtain drugs in a way that is banned for every other American.”
Ohio hasn’t conducted an execution since early 2014 when the process took almost a half hour and many labeled it as “botched.” The next execution in our state is scheduled for January 2016.
UPDATE: On November 19, 2014, the House Policy and Legislative Oversight Committee voted 9 to 4 to approve House Bill 663. The bill then went before the full Ohio House of Representatives on November 20, 2014, where it passed 61 to 25. The Senate Criminal Justice Committee voted to approve the bill on December, 11, 2014. Key majority party legislators were replaced on the committee in order to pass the bill. Although the bill was greatly amended during the committee process by removing several unjust components, the secrecy provisions still remain in place and the ACLU of Ohio remains adamantly opposed. The full Senate passed the amended bill on December, 11, 2014 with a vote of 20 to 10. HB 663 will now be sent back to the full House for a vote.
It’s no secret that Ohio has had major problems with executions. In under a decade, there have been four botched executions. Now legislators want to make sure the public and certain legal counsel will be kept in the dark about what happens in the execution chamber, shrouding all aspects of lethal injections in secrecy.
Whether you agree with the death penalty or not, we all must agree that executions must adhere to our Constitution and basic human decency. By removing all transparency and accountability, it will be impossible for us to know whether lethal injections are humane and legal.
For more information, please read ACLU of Ohio Testimony against House Bill 663 before the Ohio House Policy and Legislative Oversight Committee, and listen to The Civil Liberties Minute: Secret Executions in America podcast.
Secrecy only undermines public trust. The stakes are especially high because Ohio wants to use unregulated compounding pharmacies to supply lethal injection drugs. These companies’ drugs are not monitored for safety and efficacy, meaning another botched execution is even more likely.
We don’t need more problems with our executions and a hastily passed secrecy bill is a recipe for disaster.
After more than two years of investigation, a joint taskforce of judges, prosecutors, criminal defense attorneys, legal scholars, and legislators assembled by Ohio Supreme Court Chief Justice Maureen O’Connor have delivered a report with 56 recommendations for reforming Capital punishment in Ohio.
These recommendations include:
- banning the use of capital punishment for individuals with a serious mental illness;
- removing certain crimes where death was not intended from those eligible for the death penalty;
- requiring a higher level of physical evidence, such as DNA or a videotaped confession, to guard against wrongful convictions;
- prohibiting death penalty convictions based solely on jailhouse “snitch” testimony;
- passing racial justice legislation to prevent biased prosecution and jury selection practices; and;
- creating an impartial review committee through the Attorney General’s office to guard against racial discrimination and prosecutorial misconduct.
The taskforce was specifically charged with examining how the death penalty is being administered and not with questioning whether the state should continue its use of capital punishment.
Read the Ohio Supreme Court taskforce’s report on capital punishment.
Nevertheless, this report arrives amidst serious questions about Ohio’s application of the death penalty. State authorities have botched four executions in six years, granted clemency to a number of severely mentally ill prisoners, and face a growing list of officials—including two Ohio Supreme Court justices and a former corrections chief—who have turned against the system.
These recommendations should be welcome news, even for death penalty supporters. At the very least, Ohioans should not tolerate a system that executes people with mental illness, risks executing the innocent, and perpetuates unfair discrimination in our justice system.
For more than two decades, Siddique Hasan, Jason Robb, George Skatzes, Keith LaMar and Greg Curry have claimed they are innocent of the crimes attributed to them during the 1993 prison uprising at Southern Ohio Correctional Facility (SOCF).
These five men accuse the state of coercing false testimony from other SOCF prisoners in order to convict them. They have spent years in solitary confinement, soliciting media attention in an attempt to convince the public—and ultimately the court system—that they do not belong where they are.
In response, the Ohio Department of Rehabilitation and Correction (ODRC) has created a de-facto ban on face-to-face media contact with these men, arguing that they are too much of a security risk to be allowed to tell their stories in person.
In late 2013, the ACLU of Ohio filed a lawsuit challenging this ban.
On April 2, 2014, Ohioans to Stop Executions (OTSE) released a new report entitled The Death Lottery:” How Race and Geography Determine Who Goes to Ohio’s Death Row. The report was released a day after Ohio Attorney General Mike DeWine issued the state’s 2013 Capital Crimes Report.
The term “death lottery” is borrowed language from Ohio Supreme Court Justice Paul Pfeiffer, who has turned against the system of capital punishment he helped design.
Ohio’s capital crimes report presents a wealth of hard data, but The Death Lottery digs deeper, analyzing that data to show how the race of the victim and the location of the crime have the most impact on who goes to death row in Ohio.
Here are a few highlights from the report:
- Overall, the death penalty is declining in popularity. In 2013, Ohio prosecutors filed the fewest number of capital indictments since the death penalty was reinstated in 1981.
- Ohioans convicted of killing a white victim are much more likely to be sentenced to death than those convicted of the same crime against a victim of color, even though people of color represent two thirds of all murder victims.
- 40 percent of Ohio death sentences originate from Cuyahoga County.
- Six men have been sentenced to death in Ohio only to be exonerated and released from prison years later.
- Ohio has proven unable to administer the death penalty without error. The state recently changed its execution protocol for the sixth time in four years and continues to have difficulty adhering to written procedures and obtaining drugs to execute prisoners. This is a problem with no easy solution, and it has led to four botched executions since 2006.
The Death Lottery shows once again that capital punishment is an arbitrary and fundamentally flawed system of justice. It is time to heed the words of Ohio Supreme Court Justice William O’Neill and “end this outdated form of punishment.”
Amid public outcry, Ohio Governor John Kasich has delayed the March 19 execution of Gregory Lott until November 2014. This temporary reprieve will give officials time to complete a full investigation into the controversial execution of Dennis McGuire. On January 16, 2014, Ohio conducted its fourth botched execution since 2006, killing death row inmate Dennis McGuire using an experimental drug cocktail that left him clenching his fists and gasping for air for more than 20 minutes before he finally died.
Read the January 19, 2014 letter from ACLU of Ohio Executive Director Christine Link and Board President Jack Guttenberg to Governor Kasich.
The Governor’s action to delay the execution proves that our collective voices are powerful. However, Ohio still has three executions scheduled for 2014, possibly using the same flawed drug combination.
It has never been clearer that this system is broken. Continue telling Governor Kasich to stop the next botched execution by putting an immediate halt on all executions.
Staughton and Alice Lynd have been married for 60 years, and have been prominent activists for nearly as long. They are also longtime friends and partners of the ACLU of Ohio.
The Lynds moved to Ohio in 1976 and were profoundly affected by the 1993 Lucasville prison uprising and its aftermath. Staughton Lynd served as ACLU cooperating council in the appeals of Siddique Abdullah Hasan, who was sentenced to death for allegedly killing a corrections officer during the uprising. Lynd argued that prosecutors presented false evidence in Hasan’s case. In 2007, the ACLU presented a statewide tour of Staughton Lynd’s play on the subject, entitled Lucasville: The Untold Story of a Prison Uprising.
The Lynds also served as ACLU cooperating attorneys in 2001, assisting in a successful class action lawsuit that challenged the constitutionality of conditions in the then-new “super-max” prison facility in Youngstown.
The State of Ohio will not appeal a judge’s decision to stay the execution of Kenneth Smith, who was scheduled to be executed on July 19, 2011. In the decision, U.S. Court Judge Gregory Frost noted, “Ohio pays lip service to standards it then often ignores without valid reasons, sometimes with no physical ramifications and sometimes with what have been described as messy if not botched executions.”
As a result of the stay, Governor Kasich granted reprieve to two other people, but then resumed executions in November 2011.
However, in early 2012 Judge Frost once again stopped the executions of Charles Lorraine and Michael Webb because of the states execution protocols.
The state is appealing the decision, and also creating updated policies.
This is not the first time Ohio’s haphazard execution protocols have been challenged. In 2008, the ACLU of Ohio won a judgment in Lorain County Common Pleas Court in the case of State of Ohio v. Rivera. The Court ruled that the state’s lethal injection protocols violated state law that executions should be ‘quick and painless.’ Read the execution protocols from the case here.
Ohio’s executions have been plagued by problems that even those who had supported the death penalty recognize. Ohio Supreme Court Justice Paul Pfeifer, the architect of Ohio’s current death penalty statute, has called for an end to the death penalty in Ohio, as has former Ohio Department of Rehabilitation and Correction Director Terry Collins.
As the 2011 Ohio legislative session came to an end, Pfeifer stood before lawmakers and predicted that it is only a matter of time before the death-penalty legislation he helped write 30 years ago is abolished. He gave testimony on behalf of HB 160, a bill which would abolish the death penalty in Ohio and explained how he turned away from the death penalty after seeing how the location of crimes and the attitudes of prosecutors turn the system into a “death lottery.” The ACLU of Ohio also offered testimony in support of House Bill 160.
As lawmakers heard testimony on the fundamental injustice of the death penalty, The Dayton Daily News reported that Ohio currently holds the nation’s third highest execution rate, despite a six month hiatus and the fact that U.S. courts issued fewer death sentences this year than they have since capital punishment was reinstated in 1976.
A 2011 Death Penalty Information Center Report highlights that factors unrelated to the crime are better predictors of who will be put to death than the crime itself. Quality of legal representation, the prosecutor’s decision to pursue capital sentencing, and the victim’s race all affect who is put to death and who is not.
Call Governor Kasich to stop executions now!
On August 25, 2011, the U. S. Sixth Circuit Court of Appeals voted 2-1 to reverse the decision of the U. S. District Court in the case of Kelly Foust.
The court vacated Foust’s death sentence, and ordered a new sentencing hearing.
Judge Karen Nelson Moore explained in the court’s opinion that Foust’s trial lawyers’ near total failure to gather records and investigate the horrific circumstances of Foust’s life effectively deprived the trial court of the information it needed for a fair sentencing proceeding.
Even granting the “double deference” federal courts are required to afford the decisions of state courts in these matters, the decision of the Ohio courts denying Foust a new sentencing was not only wrong, it was unreasonably wrong and violated his constitutional rights.
On April 4, 2011, Attorney General Mike DeWine released the state’s annual report on death row and capital punishment statistics.
Nearly one execution each month is scheduled between now and September 2013. For a complete listing, click here.
The ACLU of Ohio has litigated on behalf of a number of death row inmates. For more information about our cases, please visit our legal docket.