The man who created Ohio’s 1981 death penalty law says it’s likely that the state’s last execution ever has already happened.
Ohio’s most recent lethal injection happened 18 months ago, in July 2018. The state is scheduled to execute its next next death row inmate in July, but that seems unlikely: Since taking office last year, Gov. Mike DeWine has issued eight execution delays.
But the death penalty is still the law of the land. Last year, juries across Ohio handed down six new death sentences.
Lou Tobin with the Ohio Prosecuting Attorneys Association said he’s concerned what would happen if the death penalty were officially repealed.
“All of the challenges that we see to the death penalty right now will switch to life without parole,” Tobin said. “And the next thing you know, we won't have life without parole either.”
Polls are mixed on public backing of the death penalty, and some conservative Republicans, including House Speaker Larry Householder (R-Glenford), say their support of the death penalty is wavering.
Former Ohio Supreme Court Justice Paul Pfeifer wrote Ohio’s death penalty law, but now says he opposes the way it’s used. Pfeifer said he highly doubts lawmakers would abolish it entirely.
“I think it'll be a tough sell to get the legislature to repeal the death penalty that’s on the books," Pfeifer said.
Pfeifer, now with the Ohio Judicial Conference, admitted the death penalty has been good for one thing: plea bargains, to avoid trials that are painful for the victims’ survivors and costly for the courts.
Tobin agrees. He suggested that to make sure Ohio follows through on its death sentences, lawmakers should look for new ways to carry out executions.
“The statute should provide for lethal injection, any other method of execution that's been found to be constitutional,” Tobin says. “And I think we should explore the possibility of using nitrogen gas, a protocol that Oklahoma is exploring right now.”
Tobin also suggested the federal government or other capital punishment states could help Ohio get lethal injection drugs, or that Ohio should once again allow pharmacies to make those drugs and be shielded from public disclosure. The last time that was permitted, no pharmacies offered to do so.
DeWine has cited drug access problems as the reasons for delaying executions – saying that pharmaceutical companies don’t want their products used in lethal injections. In December, Householder says the death penalty law may be unenforceable and he sees no obvious options to replace lethal injections.
Pfeifer said ultimately it’s up to the governor, who can delay sentences or commute to life without parole. He recalled a similar situation with the late Ohio governor who oversaw the state’s last two executions before the U.S. Supreme Court struck down capital punishment in 1972.
Pfeifer noted there was a nine-year gap between those executions in 1963 and the court’s ruling.
“Jim Rhodes was governor of this state for four terms, for 16 years. But there were two executions when he was brand new [as] governor and then no more happened,” Pfeifer said. “He never said he was against the death penalty. It just didn't magically happen.”
Does Pfeifer think that’s what’s happening now with DeWine? Pfeifer said he can’t say for sure.
“I don't want to presume to know what our current governor thinks personally. My guess is that he does not welcome the thought – he is a devout Catholic. The Catholic Church is opposed to the death penalty," Pfeifer said. "I would think that he does not welcome the thought of having an execution occur on his watch and it wouldn't surprise me that it just does not happen.”
There have been 56 executions since the state resumed the death penalty in 1999, after the 1981 statute Pfeifer helped create. The state is eighth in the country in total number of executions.
Pfeifer said he thinks Ohio has already seen its last execution – which he believes is a good thing.
