Food For Thought on Ohio’s Death Penalty

Death penalty decisions from the Ohio Supreme Court are long, depressing, and different. Long because the defendants raise every conceivable argument they can, even if the issues they raise have been decided many times. Depressing because of the facts and circumstances of the cases and the horror involved. Different because there is no denying it—a death sentence is different from any other form of punishment.

Death penalty appeals are also different in another, more procedural way. Most other types of appeals to the Ohio high court are what are known as discretionary appeals. That means the Court decides whether or not to accept the case, upon a vote of a majority of the justices. But a death penalty case automatically comes to the Ohio Supreme Court.

Before 1995, death penalty cases did not go directly to the Supreme Court. They were first appealed to the state’s intermediate courts of appeals—like the one I sat on. But there was much public discontent about how long death penalty cases were taking to be resolved, and a seeming lack of closure for families of the victims. So in 1994, the voters overwhelmingly approved an amendment to the Ohio Constitution to eliminate that second step, and send death penalty appeals directly to the Supreme Court of Ohio for all offenses that occurred after January 1, 1995. It certainly made my life less stressful as an appellate judge. I’m not at all sure that change was helpful to the Ohio Supreme Court justices, however. Intermediate courts of appeals do important groundwork for the state’s high court.

The procedure in a capital case (as death penalty cases are called) has two parts—a guilt phase, and then if necessary, a penalty phase. During the penalty phase, the defendant’s lawyer is entitled to put on any mitigating evidence about the defendant, which is weighed against the aggravating circumstances of the crime.

The case of State v. Lang, released by the Supreme Court of Ohio this past August, is typical of a death penalty appeal. In appeals in other kinds of cases, a lawyer will generally present two or three changes in the law the lawyer proposes for the court to consider. Lang presented 22 of these– typical of death penalty appeals.

Lang was convicted of the murder of two men in a drug deal gone sour. During the sentencing phase of trial, evidence of Lang’s mental health was admitted. Throughout his childhood he had taken anti-depressants and anti-psychotic drugs, and sought frequent treatment in psychiatric facilities, although the exact diagnosis of his mental illness was never specified. When Lang was 10, he was abducted by his father, who prevented Lang from returning home to his mother for two years. As a result of the severe abuse and trauma suffered at the hands of his father during this time, Lang’s mental health issues got progressively worse in the years leading up to the murder.

The jury recommended the death penalty for Lang in the case of one of the two victims, and life in prison with no possibility of parole in the other. The trial court accepted the jury’s recommendations and sentenced him accordingly.

The Supreme Court of Ohio unanimously upheld Lang’s conviction and sentence. The Court found no significant link between Lang’s mental illness and the murders. But Justice Evelyn Lundberg Stratton wrote a separate opinion on the sentencing phase of this case that turned a lot of heads. She argued that it is time to re-examine whether “we as a society should administer the death penalty to a person with a serious mental illness.” Justice Stratton raised the same issue five years earlier in a different death penalty case, to no avail.

Much has been happening on the national scene about who we as a society should execute. The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment. Back in 1958, then Chief Justice Earl Warren wrote in a decision that this prohibition must “draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

In 2002, the U.S. Supreme Court used that evolving standards of decency test to ban the execution of the mentally retarded. In 2005, the U.S. Supreme Court applied that standard again to ban the execution of defendants who were juveniles at the time they committed their crimes. In the Lang case, while recognizing that the U.S. Supreme Court has not yet done this, Justice Stratton proposed that the same “evolving standards of decency” which prohibits the execution of juveniles and the mentally retarded should prohibit the execution of the severely mentally ill.

Justice Stratton acknowledged that it’s not so easy to define who is severely mentally ill enough to be spared execution. Unlike mental retardation and juvenile offenders, in which a number on an IQ test and age are determinative factors, mental illness is a “much broader category with wide ranges of diagnoses and periods of decompensation and remission.” But, she says that it is time to start the conversation. And Justice Stratton has some hefty support for her position from the professionals. The American Bar Association, the American Psychiatric Association, the American Psychological Association, the National Alliance on Mental Illness, and Mental Health America all have adopted policy statements recommending banning the execution of persons who were mentally ill at the time of the offense.

Connecticut is the first state thus far to prohibit such punishment. State legislatures in Kentucky, North Carolina, Indiana and Tennessee are examining the issue. Stratton urges the Ohio General Assembly to do so, as well.

Five years ago, only Justice Paul Pfeifer joined Justice Stratton in her views on executing the mentally ill. But in the Lang case, she has also picked up the vote of the Court’s newest Justice, Yvette McGee Brown, to her position. That’s three out of seven.

There’s more possible changes in the wind on the death penalty. On September 8, in her first State of the Judiciary speech as Chief Justice, Maureen O’Connor announced the creation of a joint task force between the Ohio Supreme Court and the Ohio State Bar Association to review the administration (but not the wisdom) of the death penalty in Ohio. O’Connor said that “if we are to support trust and confidence in the judicial system, there is arguably no issue more important than ensuring that justice is served when the state imposes the ultimate form of punishment.” She said she wants to ensure that the death penalty is administered in the “most fair, efficient, judicious manner possible.” There are plenty of people who think that is impossible. That conversation will have to await another day.

Afterword—on September 26 Governor Kasich commuted the death sentence of Joseph Murphy who had been scheduled to be executed on October 18, to life in prison without the possibility of parole. The governor cited the position of the National Association of Mental Illness as one of the bases for his decision.