Ohio's Death Penalty: History and Current Developments

• Author: David L. Hoeffel
• Pages: 659-690

Page 659

I Introduction

This comment will take a comprehensive look at the death penalty in Ohio. First, it will discuss the background and history of the death penalty in the state. Second, it will focus on the factors and influences which have shaped the current death penalty policy in Ohio, and the re-emergence of executions within the state over the last several years. Third, the comment will discuss several recent developments surrounding the death penalty in Ohio. This includes issues presented by the executions which resumed in 1999, a recent amendment to Ohio's death penalty statute to eliminate the electric chair as a choice for execution, and current legislative and judicial efforts to prohibit the execution of mentally retarded criminals in Ohio. Finally, the comment will analyze these current developments and proposals in light of current state and national attitudes and trends to predict the likely course Ohio's death penalty policy will take in the future.

This comment is both important and relevant because Ohio's death penalty statute has become a controversial topic since Ohio began executing death row inmates again in 1999.¹ In addition, several legislative proposals are currently under review in Ohio and major developments are also taking shape on the national front.² This comment will be informative to attorneys and other individuals interested in the current state of Ohio's death penalty policy, as well as the most prominent influences that will shape Ohio's death penalty policy in the future. Furthermore, a thorough review of current issues and attitudes surrounding the death penalty in Ohio serves as a microcosm of the development of death penalty issues on the national scene. Page 660

A Death Penalty in Ohio

The history of Ohio's death penalty dates back to Ohio's earliest days of statehood.³ From the time Ohio was established as a state in 1803 until 1885, executions were carried out by public hanging in the county where the crime was committed.⁴ In 1885, Ohio's state legislature enacted the first statewide statute regulating the administration of executions in the state.⁵ Hanging remained the sole method of execution for Ohio prisoners sentenced to death, but the new statute centralized the operation of capital punishment in Ohio by requiring all executions to be carried out at the state penitentiary in Columbus, Ohio.⁶ Between 1885 and 1897, a total of twenty-eight convicted murderers were executed by hanging at the state penitentiary in Columbus.⁷ Page 661

In 1897, a new era of capital punishment began in Ohio, as the electric chair was introduced and touted as a more humane method of executing convicted criminals sentenced to death.⁸ The concept for the electric chair came about several years earlier when Alfred Southwick, a dentist in Buffalo, New York, proposed the idea after watching a drunken man stagger into an electrical generator and die both quickly and apparently painlessly.⁹ Subsequently, New York was the first state to adopt the electric chair, and the device was first used in 1890 in a prison in Auburn, New York to execute William Kemmler, a convicted murderer from Buffalo who had butchered his wife with an ax.¹⁰ Eyewitness accounts state that the first jolt left Kemmler twitching and alive, and that he was not successfully put to death until a second sustained charge was applied to his body.¹¹ Nevertheless, the electric chair was perceived at the time as advancement in the area of humane executions, and its use expanded rapidly to a majority of states as a replacement for the traditional methods of death by hanging and firing squad.¹²

Between the adoption of the electric chair as Ohio's sole method of execution in 1897 and the final death by electrocution in 1963, a total of 312 men and women were put to death by the electric chair.¹³ William Haas, a seventeen year-old man from Hamilton County, was the first person to be executed in Ohio's electric chair in 1897.¹⁴ Charles Justice, a broom maker incarcerated at the penitentiary for robbery and burglary, was asked to assist with the assembly of Ohio's electric chair because he possessed some basic knowledge of electricity.¹⁵ Ironically, Mr. Justice was later convicted of murder and put to death in the same electric chair he had helped create.¹⁶ In fact, the chair was never replaced, and was still in use when Donald L. Reinbolt, a twenty-nine year old man from Franklin Page 662 County, became the last death row prisoner to be executed in Ohio?s electric chair in 1963.¹⁷

Ohio's death penalty statute remained largely unchanged until 1972, when the United States Supreme Court declared the current operation of death penalty statutes in several states unconstitutional in its landmark decision in Furman v. Georgia.¹⁸ The Court in Furman reviewed the death penalty laws in Georgia¹⁹ and Texas,²⁰ pursuant to which persons convicted of capital offenses could be sentenced to death at the discretion of the judge or jury.²¹ In a per curium opinion, the Court held that "the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments."²² Because the Court's opinion contains separate opinions from each of the nine Justices, the only clear holding that came from the case was that several members of the majority were concerned with the arbitrary and capricious manner in which the death penalty can be imposed under laws giving complete discretion in sentencing to the judge or jury.²³

Although Ohio's death penalty statute was not directly struck down by Furman, the Ohio death penalty statute in effect at that time, like the Georgia and Texas statutes reviewed by the Court in Furman, also gave complete discretion to the judge or jury in deciding whether to impose the death penalty.²⁴ The only exception to this was that in the case of killing certain public officials, the death penalty appeared to be mandatory upon conviction.²⁵ Soon after Furman, the Ohio Supreme Court held Ohio's death penalty statute to be unconstitutional, at least with respect to its non- mandatory provisions, in the case State v. Leigh.²⁶ In Leigh, the jury returned a verdict without a recommendation of mercy for the defendant, John Leigh, who was convicted of killing four people during his robbery of Page 663 a Hamilton County bank.²⁷ The Ohio Supreme Court, reviewing only the question of the degree of the penalty, was compelled to find the imposition of the death penalty unconstitutional in light of Furman, and therefore reduced John Leigh's sentence to life in prison.²⁸

However, at the time the Court handed down its ruling in Furman, as well as at the time the Ohio Supreme Court decided Leigh, the Ohio legislature had already begun work on a new death penalty statute which was eventually adopted in December of 1972 and took effect on January 1, 1974.²⁹ In an attempt to cure the defect in the previous statute giving complete discretion to the judge and jury in deciding whether to impose the death penalty, the new statute laid out seven aggravating circumstances³⁰ Page 664 and three mitigating factors.³¹ Under this new death penalty statute, a defendant convicted of aggravated murder with at least one of the seven aggravating circumstances present would be sentenced to death, unless one or more of the three mitigating circumstances was proven by a preponderance of the evidence.³²

In 1976, the United States Supreme Court further clarified its holding in Furman by laying out specific requirements for a constitutionally sound capital sentencing scheme in the case Gregg v. Georgia.³³ First, the Court made clear that the death penalty is not a per se violation of the Eighth and Fourteenth Amendments.³⁴ Next, the Court explained that the imposition of the death penalty is not in violation of the Eighth and Fourteenth Amendments as long as an appropriate capital sentencing scheme is put in place by states to ensure that the death penalty is not administered in an arbitrary and capricious manner.³⁵ Furthermore, the Court explained that in order for a capital sentencing scheme to be constitutional it must contain the following three elements: 1) the guilt and sentencing phases of the trial must be bifurcated; 2) the jury must be instructed on the factors of aggravation and mitigation to be considered in deciding whether to apply Page 665 the death penalty; and 3) the state's highest court must review each sentence of death for proportionality.³⁶

Ohio's 1974 death penalty statute came close to meeting the three criteria laid out by the Court in Gregg, but the statute nevertheless fell just short and was declared unconstitutional by the United States Supreme Court in the 1978 case Lockett v. Ohio.³⁷ The Court explained in its holding that sentencing authorities must have the discretion to consider every possible mitigating factor that might render the death penalty an inappropriate sentence for each convicted criminal, rather than being limited to a specific list of factors to consider.³⁸ Thus, the Court concluded that the Eighth and Fourteenth Amendments require that the sentencing authority not be precluded from considering as a mitigating factor any aspect of the defendant's character or record, and any of the circumstances of the offense that the defendant proffers...