There has been a lot of recent press coverage about Governor DeWine’s forthcoming announcement on the death penalty and whether his position has evolved over the years. Amid these headlines and speculation, it is important to understand an Ohio governor’s authority over the state’s capital punishment system under the Ohio Constitution and the Ohio Revised Code.
The Ohio Constitution (Article III, to be precise) grants the Governor a variety of powers and responsibilities, as does the Ohio Revised Code. Among the most significant of these are spelled out in Article III, Section 11—specifically, the Governor’s powers of reprieves, commutations, and pardons. Together, these powers comprise the Governor’s clemency authority, although this explainer primarily focuses on commutations. First, though, it is important to define these terms.
What are reprieves, commutations, and pardons?
A reprieve is a temporary delay of a death row inmate’s scheduled execution to a future date. Gov. Mike DeWine repeatedly has reprieved scheduled execution dates since entering office in 2019 given the state’s ongoing inability to procure the drugs required to carry out Ohio’s lethal injection protocol. This has resulted in an unofficial moratorium on capital punishment in Ohio.
A commutation is the reduction of a criminal penalty to a lesser sentence (e.g. from life without parole to a specified number of years). Gov. DeWine recently issued a commutation to a woman who had served 31 years on a sentence of 15 years up to life in prison for a 1993 conviction.
A pardon forgives entirely the person’s remaining criminal sentence, allowing their release from prison.
Clemency and death row
Nationwide, governors (and three former presidents) have issued 367 commutations for inmates on death row, including 21 commutations by Ohio governors of both parties. Most recently, former Gov. John Kasich commuted seven sentences during his two terms, the most of any Ohio governor. Kasich also oversaw 15 executions, including Ohio’s most recent execution in July 2018.
His two final commutations illustrate how the process can work and what factors a governor might consider in exercising this authority. In the case of William Montgomery, whose sentence Kasich commuted in March 2018, Kasich’s commutation followed a recommendation of the Ohio Parole Board, which voted 6-4 to recommend clemency for Montgomery after reviewing his clemency application.
Meanwhile, in the case of Raymond Tibbetts, whose sentence Kasich commuted in July 2018, Kasich cited “fundamental flaws in the sentencing phase of his trial.” In fact, those concerns came directly from a juror in Tibbetts’ case, who felt the jury was misled by the prosecution. While the parole board was unmoved and voted 8-1 against clemency for Tibbetts, Kasich was.
What needs to happen before the Governor can grant clemency?
While Article III, Section 11 of the Ohio Constitution is clear that the Ohio General Assembly cannot infringe on the Governor’s use of clemency authority, the General Assembly does have the power to determine the way in which inmates may apply for clemency. Accordingly, Ohio law requires the following before the Governor can issue a commutation:
- First, the inmate must submit a written application for clemency to the parole board. Alternatively, the Governor can direct the parole board to conduct a review of a case (or multiple cases).
- Following either of those steps, the parole board must conduct its review and submit to the Governor a written report containing a statement of facts, the recommendation either for or against the clemency requested, the justification for that recommendation, and the records or minutes relating to the case.
- During this process the board also must comply with applicable victim notification laws.
Importantly, as demonstrated by Raymond Tibbetts’ commutation, the Governor does not need to follow the parole board’s recommendation. The law merely requires that the parole board submit one to the Governor before the Governor can issue a commutation.
The bottom line
Needless to say, clemency is of particular urgency for death row inmates. Clemency is a last resort remedy for those who have exhausted all appeals in the courts, one final lifeline before the ultimate, irreversible sentence is carried out.
Recently, Elwood Jones become Ohio’s 12th death row exoneree when Hamilton County Prosecutor Connie Pillich dismissed his case. Jones spent more than 25 years on death row until a judge granted him a new trial in December 2022, finding that the prosecution had withheld key evidence from his attorneys with key evidence. Were it not for both decisions, though, Jones still would be serving time on death row unjustly. Executive clemency would have been his only path to justice.
A system that gives 12 people death sentences for crimes for which they should not have been convicted is a system broken beyond repair, not to mention the outrageous cost, racial disparities, and geographical arbitrariness of the death penalty.
For these reasons and more, the ACLU of Ohio believes that Ohio must never conduct another execution and leave capital punishment in the dustbin of history—whether by legislative repeal, executive clemency, or a combination of both. Governor DeWine’s forthcoming announcement on his position is central to the future of this conversation.
