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Ohio

Ohio Governor Commutes Death Sentence Based on Jurors Concerns About Unfair Sentencing

Ohio Governor John Kasich (pictured, left) has commuted the death sentence imposed on Raymond Tibbetts (pictured, right) to life without parole, in response to a juror's concerns about the unfairness of the sentencing proceedings in the case. It was the seventh time Kasich had commuted a prisoner's death sentence. The July 20, 2018, news release announcing the commutation explained that Kasich had granted clemency because "fundamental flaws in [the] sentencing phase of [Tibbetts’s] trial … [had] prevented the jury from making an informed decision about whether Tibbetts deserved the death penalty." Kasich had previously issued Tibbetts a reprieve, delaying his scheduled February 13 execution until October 17, after receiving a detailed letter from juror Ross Geiger asking him "to show mercy" to Tibbetts. Geiger's January 30 letter alerted the governor to serious flaws in the trial that misled jurors to sentence Tibbetts to death, including defense counsel's failure to present critical mitigating evidence about Tibbetts's horrific upbringing and the prosecution's misrepresentation of important details of Tibbetts's family history. "If I had known all the facts," Geiger wrote, "if the prosecutors had been honest and forthcoming about the horrors [Tibbetts] and his siblings experienced in the foster care system, and if we had an accurate understanding of the effects of Mr. Tibbetts' severe drug and alcohol addiction and his improper opioid prescription, I would have voted for life without parole over death." As part of his order granting the reprieve, Gov. Kasich directed the Ohio Parole Board to reconvene to hear Geiger's concerns and to reconsider Tibbetts's request for clemency. However, even after hearing from Geiger, the parole board voted 8-1 to recommend against clemency. In a statement by Tibbetts's lawyers praising the commutation, Erin Barnhart said, "Governor Kasich acted in the interests of fairness and justice by recognizing that Mr. Tibbetts’ death sentence was fundamentally unreliable. The jury was deprived of crucial information about the abusive and traumatic upbringing and the long-term impact it had on Mr. Tibbetts and his siblings. These circumstances provided compelling reasons for the exercise of clemency to correct the failures in the legal process in this case." Kasich also granted a reprieve to Ohio death-row prisoner Cleveland Jackson, pushing back his execution by nine months to "allow his newly appointed legal counsel sufficient time to review the case and properly prepare for his clemency hearing before the Parole Board." Jackson’s September 13 execution is now rescheduled for May 29, 2019.

Retired Warden, Former Judge and Prosecutor Urge Ohio to Grant Clemency to Raymond Tibbetts

The Ohio Parole Board held a hearing on June 14, 2018 to consider clemency for death-row prisoner Raymond Tibbetts, whose February 13 execution was halted by Governor John Kasich to consider a juror's request that Tibbets be spared. Ross Geiger, one of the twelve jurors who sentenced Tibbetts to death in 1997, wrote to Governor Kasich on January 30 expressing “deep concerns” about a “very flawed” trial and saying he “would not have recommended the death penalty” had the jury been provided complete information about Tibbetts’ upbringing. Tibbetts’ clemency application has been buoyed by the support of two criminal justice experts, Judge James A. Brogan (pictured), a former prosecutor and past chief justice of the Ohio Courts of Appeals Judges Association who chaired the Ohio Supreme Court's Joint Task Force to Review the Administration of Ohio’s Death Penalty, and George D. Alexander, a former Ohio prison warden and prison chaplain. Geiger wrote that the jury had voted for death after the prosecution had led them to believe that Tibbetts and his siblings had lived normal lives and his siblings ”had turned out fine.” He later learned that Tibbetts’ trial lawyer had failed to present evidence that Tibbetts had been abandoned at age 2, then abused and malnourished in foster care, and that “of Mr. Tibbetts’ four siblings, one committed suicide, one also spent time in prison, one is essentially homeless and unemployed, and only his sister is now doing well, despite having had a very turbulent younger life.” In a guest column in the Columbus Dispatch, Judge Brogan lauded Governor John Kasich’s decision in February to grant Tibbetts a reprieve so that Geiger could present his case to spare Tibbetts to the parole board. Brogan noted that the vote of just one juror is enough to prevent the imposition of a death sentence. “Fundamental flaws in the trial process deprived the jury of key facts that would have prevented this juror from voting in favor of death,” he wrote. “These truly extraordinary circumstances cry out for a clemency recommendation rather than an execution.” Alexander, the former prison warden and chaplain, added that Tibbetts has shown remarkable rehabilitation during his time in prison. “By all accounts, by the grace of God, Tibbetts has experienced a radical transformation,” Alexander wrote in a commentary published in the Akron Beacon-Journal. “He is no longer the troubled criminal, addicted to drugs and alcohol, as he was when he entered death row 20 years ago. He is remorseful, reflective and reformed.” The parole board will make a recommendation for or against clemency, but the ultimate decision rests with Governor Kasich. [UPDATE: On June 22, the Ohio parole board recommended that Governor Kasich deny clemency to Mr. Tibbetts.]

Aging of Death Row Raises Humanitarian and Practical Concerns, As Alabama Executes 83-Year Old Prisoner

Death row is aging and increasingly infirm and, as a series of recent death warrants suggest, that phenomenon is raising legal, practical, and humanitarian concerns. One year after executing 75-year-old Thomas ArthurAlabama on April 19 executed 83-year-old Walter Moody (pictured, left), the oldest person and only octogenarian put to death in the United States since executions resumed in 1977. Attempts to execute prisoners debilitated by physical and cognitive impairments exacerbated by aging have proven problematic and inhumane. After canceling his previously scheduled cancer surgery to issue a death warrant, Alabama failed for 2 1/2 hours to set an intravenous line to execute gravely ill 61-year-old Doyle Hamm on February 22. His lawyer moved to bar the state from trying a second time, describing the failed attempt as "torture." Ohio tried and failed to execute terminally ill 69-year-old Alva Campbell (pictured, center) in November 2017. He then died of his terminal illness on March 3. And in late January 2018, the U.S. Supreme Court halted Alabama's scheduled execution of 67-year-old Vernon Madison (pictured, right), who is legally blind, incontinent, and unable to walk independently, and suffers from vascular dementia caused by strokes that have left him with no memory of the offense for which he was sentenced to death. The Court on February 26 agreed to review his claim that his illness leaves him mentally incompetent to be executed. A Washington Post review of Department of Justice data reported that the percentage of death-row prisoners aged sixty or older has more than doubled this century, up from 5.8 percent of U.S. death rows in 2007 to 12.2 percent in 2013. The aging of the row has also affected executions. An Associated Press review of the Death Penalty Information Center execution database found that the median age of an executed prisoner in the U.S. rose from 34 to 46 between 1983 and 2017. A DPIC analysis of U.S. execution data found that only two of the 933 prisoners executed in the United States between 1977 and 2004 were aged 65 or older. That total was matched in a single 35-day period this year between March 15 and April 19, when Georgia executed 67-year-old Carlton Gary and Alabama executed Mr. Moody. In 23 years of executions between 1977 and the close of the 20th century, ten prisoners aged 60 or older were executed. Thirty-six have already been executed this decade, 13 since 2015 alone. The aging of death row raises humanitarian issues, separate and apart from the risk of botched executions. Speaking to Associated Press, DPIC Executive Director Robert Dunham noted that, while many of the prisoners facing execution have been convicted of terrible crimes, the public is "torn between wanting to punish [them] severely and the belief it is beneath us as a nation to kill a frail person who is already dying. It’s a challenge to our morality and our sense of humanity,” Dunham said. The attempts to execute the infirm also have attracted international attention and approbation. When Alabama sought to execute Madison, David O'Sullivan, the European Union's Ambassador to the United States, wrote "an urgent humanitarian appeal" to Alabama Governor Kay Ivey not to execute him. The Ambassador's letter reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." When Ohio sought to execute Campbell, his lawyer, assistant federal defender David Stebbins, predicted that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. In a statement that applies to more and more prisoners facing death warrants, Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, summed up the issue: “Killing a fragile man suffering from dementia," he said, "is unnecessary and cruel.”

Ohio Governor Commutes Death Sentence of William Montgomery

Ohio Governor John Kasich has commuted the death sentence of 52-year-old William Montgomery (pictured) to life without the possibility of parole. Montgomery was scheduled to be executed on April 11. The one-page proclamation granting clemency (pictured right, click to enlarge) did not specify the grounds for Kasich's action and was not accompanied by a news release or statement to the media. The order, issued March 26, stated simply, "after consideration of all relevant factors, I ... have concluded that a commutation of the death sentence of William T.  Montgomery is warranted." Faced with issues of prosecutorial misconduct and questionable forensic evidence, the Ohio Parole Board voted 6-4 on March 16, 2018 to recommend that Kasich grant executive clemency to Montgomery, who was convicted and sentence to death in 1986 for two murders he maintains he did not commit. Lucas County Prosecutor Julia Bates opposed Montgomery's clemency application. An Ohio federal district court, affirmed by a federal appeals court panel, overturned Montgomery's conviction in 2007 because prosecutors had suppressed evidence and witness statements that undermined the state's version of how the crime occurred, but the full U.S. Court of Appeals for the Sixth Circuit reinstated the conviction in 2009, with five judges dissenting. Montgomery's supporters argued to the parole board that there was too much doubt about his guilt to risk executing a potentially innocent man. Prosecutors in the case withheld from the defense evidence that multiple witnesses had seen Debra Ogle, one of the women Montomgery was found guilty of murdering, alive four days after the date prosecutors said Montgomery had killed her and left her body in the woods. An independent review of the autopsy report showed that Ogle's body likely had been discovered within hours of her death. Adding to the doubt in the case, Montgomery's co-defendant, Glover Heard, told police five different stories before settling on a version of events that fit the prosecution's theory, and instead of facing the death penalty, he was sentenced to a term of years with eligibility for parole. The clemency grant was the sixth time Kasich had commuted a death sentence to life without parole. It was the second time a governor commuted a death sentence in 2018. Texas Governor Greg Abbott commuted Thomas "Bart" Whitaker's sentence on February 22, less than an hour before he was scheduled to be executed. There have been 287 grants of clemency to death-row prisoners in the United States on humanitarian grounds since 1976. Ohio governors have granted clemency to death-row prisoners twenty times in that time period.

Ohio Parole Board Recommends Clemency for Death-Row Prisoner William Montgomery

Faced with doubts about prosecutorial misconduct and the accuracy of forensic evidence, the Ohio Parole Board has recommended that Governor John Kasich grant executive clemency to William T. Montgomery (pictured), scheduled to be executed on April 11. Montgomery was convicted and sentence to death in 1986 for two murders he has long maintained he did not commit. An Ohio federal district court, affirmed by a federal appeals court panel, overturned his conviction in 2007 because prosecutors had suppressed evidence and witness statements that undermined its version of how the crime occurred, but with five judges dissenting, the full U.S. Court of Appeals for the Sixth Circuit reinstated the conviction. Montgomery's supporters argued to the parole board that there was too much doubt about his guilt to risk executing a potentially innocent man. Prosecutors argued at trial that Montgomery murdered Debra Ogle and then killed her roommate, Cynthia Tincher to prevent her from testifying against him, then dumped Ms. Ogle's body in the woods where it was not discovered for four days. However, prosecutors withheld from the defense evidence that multiple witnesses had seen Ms. Ogle alive four days after she supposedly had been killed and an independent review of the autopsy report showed that Ms. Ogle's body likely had been discovered within hours of her death. The report noted that a body left in the woods for four days in above-freezing temperatures would have shown signs of decomposition, insect infestation, and animal predation, none of which were present, and the body's state of lividity indicated death had occurred within twelve hours of its discovery. Adding to the doubt in the case, Montgomery's co-defendant, Glover Heard told police five different stories before settling on a version of events that fit the prosecution's theory and, instead of facing the death penalty, was sentenced to a term of years with eligibility for parole. Montgomery’s lawyers also presented the parole board with affidavits that undermined its confidence in the jury verdict, including one from a juror who was confused as to what the law required, another from a juror who had doubts about Montgomery’s guilt, and a third juror whose psychiatric behavior raised questions about her ability to serve. The Board majority cited both the State’s failure to disclose the witness reports that Ms. Ogle was alive after the State claimed she had been killed and the jurors’ affidavits as reasons for recommending commutation. Four Board members opposed commutation, arguing that the information presented was insufficient to overturn the jury verdict and finding no “manifest injustice” in the case that they believed warranted clemency. In an op-ed in the Toledo Blade, Phyllis Crocker, Dean of the University of Detroit Mercy School of Law and a former member of the Ohio Supreme Court Joint Task on the Administration of Ohio’s Death Penalty, wrote: "At best, Montgomery was convicted on a false set of facts and at worst, he may be actually innocent. In death penalty cases there must be no doubt whatsoever. There is too much doubt to allow this execution." Montgomery's lawyer, Jon Oebker, reiterated that his client's assertion of innocence and said the defense plans to "explore every avenue we can." Governor Kasich must issue a decision on the pardons board's recommendation before the April 11 execution date.

Human Rights Advocates: Prisoner's Rare Medical Condition Risks Gruesome Botched Execution in Missouri

Human rights advocates are warning that the impending execution of Russell Bucklew (pictured) in Missouri on March 20 presents a “substantially increase[d] risk of a gruesome and botched execution.” Court pleadings and a March 14 letter from the American Civil Liberties Union to the Inter-American Commission on Human Rights (IACHR) say that Bucklew suffers from congenital cavernous hemangioma, a rare and severe blood-vessel condition that his lawyers and doctors say compromises his veins and makes lethal injection inappropriate and potentially torturous. Bucklew’s medical condition causes large tumors of malformed blood vessels to grow on his head, face, and neck, including a vascular tumor that obstructs his airway. Dr. Joel Zivot, a board-certified anesthesiologist who reviewed Bucklew’s medical records for defense lawyers in the case, said his compromised veins will likely prevent the pentobarbital Missouri uses in executions from circulating through his bloodstream as intended, risking a “prolonged and extremely painful” execution. Zivot says there is a substantial risk that Bucklew’s throat tumor may burst during the execution and that he will suffocate, choking on his own blood. Missouri first sought to execute Bucklew on May 21, 2014. At that time, his lawyers filed a challenge to the state’s lethal-injection process based on Bucklew's medical condition, and the ACLU filed a petition in the IACHR seeking precautionary measures—the international equivalent of an injunction—against the execution. The IACHR petition argued that the execution would violate international human rights proscriptions against cruel and inhumane treatment and torture. On May 19, 2014, the Missouri federal district court denied Bucklew’s execution challenge and his motion to stay his execution. A divided panel of the U.S. Court of Appeals for the Eighth Circuit granted him a stay of execution so it could consider his lethal-injection claim, but the full court, sitting en banc, vacated the stay. Bucklew then sought review in the U.S. Supreme Court, which stayed his execution pending the outcome of the lethal-injection appeal in the Eighth Circuit. While the case was working its way through the federal courts, the IACHR issued precautionary measures against the United States on May 20, 2014, requesting that the U.S. comply with its human rights obligations under the charter of the Organization of American States and the American Convention on Human Rights. The IACHR directive asked the U.S. to “abstain from executing Russell Bucklew” until the human rights body could hear his case. On March 6, 2018, the Eighth Circuit Court of Appeals rejected Bucklew’s appeal and affirmed the district court’s ruling, concluding that “Bucklew has failed to establish that lethal injection, as applied to him, constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments.” The ACLU then requested that the IACHR “immediately intervene” to halt Bucklew’s execution, and the human rights commission informed the U.S. government that its precautionary measures were still in effect. “This execution should not move forward,” ACLU’s Human Rights Program Director Jamil Dakwar told Newsweek. “Because the state is pursuing lethal injection, that will most certainly cause severe pain and suffering which under international law is considered torture.” Bucklew’s scheduled execution comes on the heels of two failed executions of gravely ill prisoners in which states ignored warnings that the prisoners’ medical conditions had compromised their veins and would make it impossible for executioners to set intravenous execution lines. Nonetheless, Ohio tried and failed to execute Alva Campbell and Alabama called off the execution of Doyle Hamm after failing for more than 2 1/2 hours to obtain venous access in his lower extremities. Campbell subsequently died of his terminal illness and Hamm has sued to bar Alabama from attempting to execute him again. On March 15, Bucklew’s lawyers filed pleadings in the U.S. Supreme Court asking the Court to stay his execution and review his case.

Alva Campbell, Terminally Ill Prisoner Who Survived Botched Execution Attempt, Dies on Ohio Death Row

Alva Campbell (pictured), the terminally ill death-row prisoner who survived a botched execution attempt by the state of Ohio on November 15, 2017, has died. Campbell, 69, was afflicted with lung cancer, chronic obstructive pulmonary disease, respiratory failure, prostate cancer, and severe pneumonia; he relied on a colostomy bag, needed oxygen treatments four times a day, and required a walker for even limited mobility. He was found unresponsive in his cell at Chillicothe Correctional Institution in Ross County in the predawn hours of March 3 and was pronounced dead at a local hospital at 5:24 a.m. Ohio corrections personnel were aware prior to the failed execution attempt that Campbell was gravely ill and physically debilitated. Campbell’s lawyers unsuccessfully argued in court that Campbell's medical condition had compromised his veins, making IV access problematic and creating the risk that any lethal-injection execution would be unconstitutionally torturous. Lead counsel, assistant federal public defender David Stebbins, warned that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. Calling Campbell “an old and frail man who is no longer a threat to anyone,” Stebbins said that "[k]illing Alva Campbell is simply not necessary.” Ohio's attempt to put Campbell to death was delayed for nearly an hour as executioners assessed his veins. Witnesses then watched for another half hour as prison personnel used an ultraviolet light to probe Campbell's arm for a vein, repeatedly sticking his arms and legs. Columbus Dispatch reporter Marty Schladen, a media witness to the execution attempt, reported that when he was stuck in the leg, “Campbell threw his head back and appeared to cry out in pain.” After failing four times to find a suitable vein in which to set an intravenous execution line, Ohio called off the execution and Governor John Kasich granted Campbell a temporary reprieve and rescheduled his execution for June 2019. The botched execution attempt was the fourth time in twelve years that executioners in Ohio had prolonged difficulty in setting an execution IV, and the second time in which an execution attempt was halted. The failure highlights the growing problem states face in attempting to execute an aging and increasingly infirm death-row population.

On February 22, 2018, Alabama attempted to execute Doyle Hamm, a 60-year-old death-row prisoner with terminal cranial and lymphatic cancer that his lawyer had warned rendered his veins unusable for lethal injection. In a failed execution that media reports described as “horribly botched,” executioners repeatedly punctured Hamm’s legs and groin in unsuccessful attempts, spanning more than two-and-a-half hours, to set an IV line. Four days later, the U.S. Supreme Court stayed the execution of Vernon Madison, a 67-year-old Alabama death-row prisoner with vascular dementia caused by strokes that have left him legally blind, incontinent, unable to walk independently, and with no memory of the offense for which he was sentenced to death. Alabama is scheduled to execute 83-year-old Walter Leroy Moody on April 19.

OUTLIER COUNTIES: Death Sentences, Executions More Likely in Hamilton County Than Elsewhere in Ohio

With 24 prisoners currently condemned to die, Hamilton County—home to Cincinnati—has the largest death row of any county in Ohio, despite a smaller population and a lower murder rate than other parts of the state. Ten of the 55 prisoners executed in the state since the 1970s were sentenced to death in Hamilton County, again more than any other Ohio county. In a recent pair of articles in The Cincinnati Enquirer, reporter Dan Horn describes the county's long history with the death penalty and reports that the county's current aggressive use of the death penalty stems from the county's culture and politics. According to Horn's analysis of Death Penalty Information Center data, Hamilton County's death row is currently the 22nd largest county death row in the country. While Hamilton is not among the nation's seventy largest counties, it ranks among the fewer than 1 percent of U.S. counties that the Enquirer found now account for 40 percent of all death-row prisoners in the country. Of counties with 20 or more death-row prisoners, Hamilton has the seventh largest death row, per capita. “There’s no question Hamilton County is and definitely was a conservative county,” said Andrew Welsh-Huggins, the author of the book No Winners Here Tonight—a comprehensive analysis of Ohio's death penalty. “A conservative county is going to elect conservative prosecutors, and they’re going to take their cues from that," Welsh-Huggins told Horn. Hamilton County prosecutor Joe Deters exemplifies that characterization, saying, "People in really bad cases want the death penalty. There are certain cases that are so hideous they are just evil." Welsh-Huggins's book—and his earlier 2005 capital punishment study for Associated Press—documented Ohio's on-going unequal application of the death penalty, with race-of-victim, geography, and plea-bargains all affecting death sentencing. The AP study showed that while 8.5% of capitally charged defendants had received death sentences in Cuyahoga County (including the city of Cleveland), 43% had been sentenced to death in Hamilton. Today, two other Ohio counties with larger populations and more murders than Hamilton have fewer people on death row: Cuyahoga has 21 and Franklin County 11. Welsh-Huggins summarized the cause of such geographic disparities, telling Horn: “The law is prosecuted differently depending on who is the elected prosecutor. Your chances of going to death row depend on where you committed the crime.”

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