According to a new study released by the American Bar Association, Ohio’s cap­i­tal pun­ish­ment sys­tem is so flawed that it should be sus­pend­ed while the state con­ducts a thor­ough review of its fair­ness and accu­ra­cy. The study, con­duct­ed by a 10-mem­ber pan­el of Ohio attor­neys appoint­ed by the ABA, found that the state’s death penal­ty is prone to racial and geo­graph­ic imbal­ances and that it meets only four of the 93 ABA rec­om­men­da­tions to ensure a fair cap­i­tal pun­ish­ment sys­tem. ​“Regardless of one’s views of the moral­i­ty of the death penal­ty, it is beyond ques­tion that if Ohio is to have a death penal­ty it needs to be one that is fair, accu­rate and pro­vides due process to all cap­i­tal defen­dants and those on death row. Unfortunately, this is not the case,” said Phyllis Crocker, a Cleveland State University law pro­fes­sor and mem­ber of the Ohio review team.

Among the pan­el’s key rec­om­men­da­tions were the following:

  • Ohio should ensure that it pro­vides ade­quate oppor­tu­ni­ties for death row inmates to prove their inno­cence. This includes improved preser­va­tion of bio­log­i­cal evi­dence while inmates are incar­cer­at­ed, cre­ation of nation­al­ly-cer­ti­fied crime lab­o­ra­to­ries, video­tap­ing of all inter­ro­ga­tions in poten­tial­ly cap­i­tal cas­es, and imple­men­ta­tion of line­up pro­ce­dures that pro­tect against incor­rect eye­wit­ness iden­ti­fi­ca­tion. In addi­tion, the report rec­om­mends that Ohio Governor Ted Strickland sup­ple­ment the state’s cur­rent clemen­cy process by appoint­ing a com­mis­sion to con­duct inves­ti­ga­tions, hold hear­ings, and test evi­dence, to review cas­es of fac­tu­al inno­cence in capital cases.
  • Ohio should ensure that all cap­i­tal defen­dants and death row inmates who are poor receive com­pe­tent lawyers. The pan­el not­ed that Ohio does not have safe­guards in place to ensure com­pe­tent rep­re­sen­ta­tion in all cas­es. It urged com­pli­ance with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. It also urged law­mak­ers to bet­ter com­pen­sate defense attor­neys to ensure high qual­i­ty rep­re­sen­ta­tion, and to pro­vide defense teams with suf­fi­cient funds for access to experts and investigators.
  • Ohio should exempt peo­ple with severe men­tal dis­abil­i­ties from the death penal­ty. The pan­el found that while Ohio does pro­tect those with men­tal retar­da­tion from fac­ing the death penal­ty, it does not extend this pro­tec­tion to those with oth­er types of seri­ous mental disorders.
  • Ohio should elim­i­nate racial and geo­graph­ic bias from its death penal­ty sys­tem. As part of its assess­ment, the ABA con­duct­ed a racial and geo­graph­ic dis­par­i­ty study which looked at death sen­tences in Ohio between 1981 and 2000. The review found that those who kill white vic­tims are 3.8 times more like­ly to receive a death sen­tence than those who kill black vic­tims. It also found that the chances of receiv­ing a death sen­tence in Hamilton County are 2.7 times high­er than in the rest of the state, 3.7 times high­er than in Cuyahoga County, and 6.2 times high­er than in Franklin County.
  • Ohio should pro­vide increased dis­cov­ery in state post-con­vic­tion appeals. The pan­el not­ed that Ohio denies peti­tion­ers access to dis­cov­ery pro­ce­dures nec­es­sary to devel­op post-con­vic­tion claims. The ABA crit­i­cized an exist­ing pol­i­cy that allows reporters and oth­er mem­bers of the pub­lic to use the pub­lic records law to obtain mate­ri­als in sup­port of post-con­vic­tion claims, but pro­hibits a peti­tion­er from using this law to obtain these same documents.

A spokesper­son for Gov. Strickland said that he is review­ing the report and its rec­om­men­da­tions.
(Associated Press, September 25, 2007, and ABA Death Penalty Moratorium Implementation Project Ohio Death Penalty Assessment Report, September 2007). Read the report and sup­port­ing doc­u­ments. See also Arbitrariness, Race, Representation, Mental Illness, Innocence, and Studies.

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