Ohio’s Death Penalty – Not Exactly Arbitrary

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This past Saturday I moderated a panel called “Perspectives on Ohio’s Death Penalty” at the Moritz College of Law at OSU.

Here’re some takeaways.

Don’t kill a white person, don’t kill a woman, and definitely, absolutely don’t kill a white woman if you want to escape the death penalty.

Stay away from the South, especially Texas, and stick to the stretch of states extending from Michigan west to North Dakota – no death penalty in those states.

In Ohio, if you’re indicted on a capital charge in Hamilton County you’re five times more likely to end up on death row than if you’re indicted in Cuyahoga County. And if you find yourself before a 3-judge panel at the 6th circuit court of appeals, the main review panel for Ohio, pray that you draw at least two judges appointed by a Democrat. Panels controlled by Republican appointees uphold death penalty convictions 3-quarters of the time. Panels controlled by Democratic appointees REVERSE the sentence 3-quarters of the time. That means that half the time life or death rides, literally, on the luck of the draw.

In Ohio, and across the country, who gets the death penalty isn’t exactly just about the facts of the case.

The weight of the evidence says that the death penalty has little deterrence value, if any. Many victim families reject the argument we often made on their behalf that the death penalty helps with closure. In a recent Ohio case that drew national attention, the parents of Emily Murray spoke out against the death penalty for their daughter’s killer, both because Emily had opposed the death penalty and because, according to Mrs. Murray, knowing the murderer could instead spend the rest of his life in prison would give her less reason to think about him than killing him.

So with all that, why, according to a recent Ohio Poll, do only one in four Ohioans want to abolish the death penalty, less than want to legalize marijuana or same-sex marriage?

Here’re my guesses.

For one, the pollsters asked a bad question. If the choice is between having and not having the death penalty, Americans want it. But if the choice is between the death penalty and life without parole – which is an option in Ohio — support for the death penalty goes way down.

Second, even some people who agree that the death penalty should only be used rarely want to preserve it for really especially hideous crimes. But the link between the ugliness of the crime and the use of capital punishment is weak.

I suspect that the two biggest reasons we generally support the death penalty are related: we don’t know the facts very well and we don’t really care in any case. As one panelist said on Saturday, few of us expect to be in a position to be hurt by the system’s unfairness.

I wonder how many of the 180 inmates on Ohio’s death row right now once felt the same way.

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