Republican State Representative Jean Schmidt on Her Efforts to Abolish the Death Penalty in Ohio

Ngozi Ndulue 0:01 

Hello, and welcome to Discussion with DPIC. I’m Ngozi Ndulue, Deputy Director of the Death Penalty Information Center. Today we’re talking about support for death penalty abolition in Ohio, with Ohio State Representative Jean Schmidt. Welcome, Representative Schmidt. 

Jean Schmidt 0:17 

Thank you and glad to be here. 

Ngozi Ndulue 0:19 

Representative Schmidt is a veteran public servant, who has previously served in the Ohio House of Representatives and the US House of Representatives for almost a decade. She was the first woman to serve southern Ohio in Congress, and has prioritized groundbreaking reforms in the criminal legal system, and right now is championing a bill to abolish the death penalty. So I want to just start with the work that you are doing this session on death penalty abolition. You started your legislative career as a strong supporter of the death penalty. And now you’re a primary sponsor of a bill to abolish the death penalty in Ohio. What changed your views? 

Jean Schmidt 1:01 

I saw the fact that whether we have the death penalty or not, it’s not going to erase the crime that occurred. It’s not going to erase the heartache that all the victims of the crime will feel for the rest of their life. I am pro-life, 100% pro-life, I believe that at conception that is a child and that it should not be changed until God decides the fate of the individual, conception to natural death. But for whatever reason, I allowed myself to believe that if you created a horrendous crime, there was an exception to that. And it was when I left Congress and heard Sister Helen Prejean speak in 2013, that my heart and my mind began to argue with each other ferociously. And then I met Joe D’Ambrosio, and realized there are really innocent people. And then I met Tyra Patterson, and realized that there are people that are wrongfully convicted because they are bullied into giving a false confession for a crime they didn’t commit, and how unfair and uneven the system is. And it’s not just a color of skin failure, it is also a socio-economic failure. If you don’t have a lot of money, you’re not going to be Robert Durst, or OJ Simpson, and walk away from a crime you may have committed. You’re going to be Tyra Patterson, or Joe D’Ambrosio, that neither had the funds available and were at the mercy of a public defender for the crimes that they were told they had made, and they didn’t. And I look at it and say, twenty years ago we housed these individuals like caged animals, death row inmates. I visited death row, in 1999 in Mansfield. They were isolated 23 hours a day. When they were allowed to go out in their very small yard for air, they were by themselves and I realized that had we given them a commutation and sentenced to life without parole, they’d be like the general population. Well, they’re like the general population today. Most of them are at Chillicothe. They’re in a separate wing, but they have the identical opportunities that a regular inmate has. Now, the food is brought to them, but everything else is the same, except the small cell that both have and their identical cells, whether you’re general or you’re death row, the death row only has one inmate per cell. And the cost, you look at the cost involved with death row, from the inception of the trial, there are so many things that have to happen on a death row capital punishment case, that don’t happen on a life without parole case, that add to the cost of the trial. Then you look at housing them, you have more guards per inmate, that adds to the cost. Tou have to deliver the meals to their area, that adds to the cost. The amount of appeals adds to the cost. Then you look at the emotional costs. You look at the emotional costs with the guards that get to know these inmates because they’re there for about 30 years. So now they’ve created a–I don’t want to say a friendship, but but it is a friendship. When you’re with somebody for 30 years or 20 years, however long you’re on death row, you get to know them as a person, regardless of the crime that they’ve committed. They still are a human being and there has to be some likability with everyone. We are God’s children. And so the social cost, the emotional cost when they leave death row can be very telling on those guards. The guards that have to put the individual to death. You look at the the social, psychological consequences of that individual. And there are some now speaking out in Georgia, about the horrible emotional costs that have happened to them over killing somebody. But you also look at the victims. And the victims are everybody–the killer’s family, they’re a victim as well. But let’s put that aside. Maybe some will say, well, who cares? I do care. But let’s look at the victims of the crime. And every time they think that they have lessened the edge of the sword that tugs at their heart, it comes back out, because they’re now going to court, again, over this individual’s right to live or die. We look at the fact that these victims not, not are always given kindness by the prosecutors. With some prosecutors, they dismiss their ability to understand these victims are now recreating that crime scene in their mind, as fresh as it happened 10 days ago, 10 years ago, 20 years ago. So there is a cost to those victims, an emotional cost, that we need to recognize. So putting them away for the rest of their life, where they’ll never see the light of day, in a prison system that is not a country club by any stretch of the imagination. I think it’s a fair and just punishment. 

Ngozi Ndulue 6:45 

You covered a lot of ground here and thank you for that answer. I want to kind of break these pieces down a little bit. And you started with your exonerations. And so Joe D’Ambrosio was one of the 11 death row, Ohio death row exoneres, and Tyra Patterson, who didn’t have a death sentence, but spent many years of her life in prison. So when we’re looking at the preventing wrongful convictions, how do you respond to arguments that, well, if we would just change things in criminal procedure, that would be satisfactory, that will be enough to address these issues? 

Jean Schmidt 7:23 

It’s interesting because The Supreme, The State Supreme Court over a decade ago, came out with a laundry list of ways to make sure that we get the right person convicted and in prison, whether it’s death row, or general population for a crime lesser than life in prison. Get the right person in prison. I don’t think we’ve done anything with that laundry list yet. So it’s an interesting, well, if we just change it, or well, DNA will prove it, well, maybe not. Look at Tony Apanovitch, Anthony Apanovitch is 33 years now on death row. And in 2008, it was discovered there was DNA. By the time his attorney got it to trial, it was 2016. DNA clearly showed he didn’t rape the woman, he didn’t rape the woman, he may not have killed her because it was a rape, murder trial and so he was let out. But the prosecutor came back, because it was never a full exoneration, and set so they could go back to trial and discovered that because Tony didn’t ask to have the DNA, it was something that was taken from him, it wasn’t admissible for release, he had to ask for it. And right now, the head of the prosecutor’s association, because I questioned him in committee last week regarding this case, he came back with a statement saying well, Tony wouldn’t do the DNA. That’s not the case. Tony never understood he needed to get another DNA test. He would have done it, but now he’s exhausted that appeal. So we have a person on death row, that there’s strong evidence to suggest he didn’t commit the crime. And because he messed up that appeals process, we may never get another swing at the bat. That’s what’s wrong with the system and I’m trying to find a way to correct it through legislation, but even so I may not be able to make it retroactive because of our Ohio constitution where it can’t, retroactivity can’t cause harm to somebody. So with taxes, you can make it retroactive because who’s it going to hurt, you’re going to pay less taxes, okay. Not going to hurt anybody if I reduce everybody’s taxes and make it retroactive. But the fact that I would ask for this to apply to Tony and you have victims out there, they may think that they’re harmed. The prosecutor may think that he’s harmed, he or she is harmed. So, even though I can get this loophole in the law corrected, it may not help him. That’s the problem with the system. 

Ngozi Ndulue 10:13 

One thing that you’re talking a lot about is the procedure and how long it takes to actually get an official exoneration. We know that at least five Ohio death row exonerees, it took 25 years between conviction and exoneration. What would you say as far as the question about cost being because of all of you know, these appeals and all the litigation that happens in death penalty cases? 

Jean Schmidt 10:44 

Some people say, well, let’s quicken it, let’s shorten it. We need to make sure we got the right person. Joe D’Ambrosio was 25 years, had we shortened it to 15, Hannah’s mother hadn’t died and Father Neil Kookoothe hadn’t come to prison to tell him, you know, I had come celebrated your mom’s mass, you know, do you want to cry on my shoulder? And Joe’s going, hey, I’m innocent, I’m innocent. And Father Neil is saying, Well, I’m just a priest, but he wasn’t a priest. He had been a surgical nurse. He had been a lawyer. And when he, when Joe forced him to look at his files, which was a three day trial for a death penalty case, he realized that the way they described the murder couldn’t have happened. And then he was able to get him one of the best rock star law firms in the country, Jones Day, and it still took five years to convince them that he was innocent. And to this day, the Cuyahoga County prosecutor’s office says he still did the crime. We have a problem with the legal system that the accountability, there is no accountability for prosecutors or detectives who withhold evidence, malign issues. There’s no accountability. And the reluctance of a prosecutor to say, hey, I screwed up, I’m sorry, for whatever reason, they feel they can’t do it, because they run the risk of not getting elected or appointed to their position. That’s hogwash. We all make mistakes. And so we should, we should allow for that breath of fresh air, have I screwed up, to happen. You know, we’re seeing it right now in that the Wisconsin case where the prosecutor at the last minute showed video that they withheld from the defense. Now, whether this guy is innocent or guilty, you don’t do that. If you have the video, you’ve got to give it to the defendant. 

Ngozi Ndulue 12:46 

That question about prosecutorial misconduct has come up when we’re looking at exonerations where we know that all of the Cuyahoga exonerations case, cases, had some sort of official misconduct or was alleged at some point. And we know that there are a number of people who, after the fact, we recognize that prosecutorial misconduct was a, had a role in a wrongful conviction. But we also see prosecutors who are thinking differently about public safety, including some veteran Ohio prosecutors who are who’ve really come out to say that they’ve changed their view after seeing how the death penalty system operates. Why do you think that is? 

Jean Schmidt 13:36 

I don’t know. I mean, I think you, the older we get, the broader our lens becomes on life, which is why conservatives tend to have a little softer heart and liberals tend to have a little bit of a harder heart in some areas. I don’t know how to say it gracefully. But I think that as we continue down the road of life, we see more of life and it gives us a better view of life. And for prosecutors, we all want the right outcome. So you want that right person behind bars and let’s find a way to make sure that we’re doing it appropriately. One of the things that we’ve talked about on the House is forcing interrogations to be filmed. And I love it when a small department says, oh, we can’t afford it. Everybody’s got a cell phone. You have, you have somebody being stopped for an arrest, you got fifteen different people with their cameras out. The Boston bomber, Dzhokhar Tsarnaev, we knew that he ran over his brother because the college kids in Watertown filmed it. And that was in 2013, that’s almost 10 years ago. So we know that you can film this stuff. Let’s at least get it on film. What’s going on on that Q&A, and making sure that well, they can find a way to make you tell the truth, that they don’t bully you into saying something that didn’t happen. 

Ngozi Ndulue 15:11 

And I wanted to focus a little bit more on conservative support for abolition. We’re seeing growing conservative support for the abolition of the death penalty. Why do you think that is? 

Jean Schmidt 15:26 

I think part of it’s cost. It’s cheaper to keep them than to kill them. And so from a conservative perspective, we usually look at the wallet, and we say, hey, if it costs less to keep them for the rest of their life in prison, then maybe that’s what we should have happen. But I also think that this isn’t about a conservative or a liberal issue. This is a human rights issue. And if we value life, and many conservatives are pro-life, then how do you dissect the death penalty from that? If you’re pro-life, you’re pro-life, you’re either pregnant or you’re not. There’s no half pregnancy there. That’s what I had to grapple with. You look at statistics in Ohio, 48% of Republicans. Now if you, if you say, Do you want to throw the death penalty out and give them a minimal option? You’re gonna have a large majority saying oh no, keep it. But when you say, What if we remove the death penalty, and make them stay in prison for the rest of their life? 48% of Republicans say that’s a better option. 37% want the death penalty. So when I hear my Republican colleagues say, well, the majority, you know, it’s less than a majority. No, the majority of Republicans want to end the death penalty. A minority of Republicans want to keep it when you frame it, they ain’t getting out of prison, they’re staying there for the rest of their life. 

Ngozi Ndulue 17:01 

And that change over time, we’ve seen in some of our ads and statements that we’ve gotten from our legislators who were in the legislature when the 1981 death penalty bill was enacted. We’ve seen that from former Attorney General, Jim Pietro. We’ve seen that from former Supreme Court, the Ohio Supreme Court justices. Do you think that we’re at a moment where there’s kind of a sea change or rising momentum towards death penalty abolition? 

Jean Schmidt 17:33 

Yes, I do. I mean, there’s the time is right for things in society. And this is ripe for change. I just think people are looking at it and saying this isn’t working. We don’t have the drugs. The only alternative that would not violate the the Eighth Amendment would be to hang them or to shoot them. That doesn’t play well on the soccer field, nor should it play well on the soccer field. Because then you have to think about the individual that’s going to string them up, or the firing squad knowing there’s a live bullet, how do they go to bed at night? The death penalty is creating more victims than the crime itself. And I think that’s the key statement. The death penalty creates more victims than the crime itself. And the fact that we’ve had so many media, television death row series that was out about five years ago, people watched it. The show, the movie Conviction, about that gal that became the lawyer to get her brother out. People are realizing we have innocent people in prison, whether they’re on death row, or in the general population, because we haven’t been playing totally fair with the system. And that leads them to be cautious about ending somebody’s life. 

Ngozi Ndulue 19:01 

You brought up the the methods of execution. In 2014, you know the execution of Dennis McGuire with a new drug combination took 24 minutes. During the execution his chest heaved, he gasped for air and struggled. After three more years of litigation the state executes another person and the state hasn’t executed anyone since 2018. And Ohio Governor Mike DeWine has said that there was an unofficial moratorium on executions because of issues with procuring lethal injection drugs. So how does Ohio’s experience with executions inform your views on the future of the death penalty? 

Jean Schmidt 19:42

Well, first off, we created it, not me but the past legislature did something that you never do. Ends never justify the means. Ever. I taught morality years ago. Ends never justify the means. But, we didn’t have the drug, because the pharmaceutical companies no longer believe in the death penalty and they took it off the market. And so we had to create our own drug. Well, how do you do it? Well, you got to have a compounding pharmacy. And you’ve got to have a doctor write the script. So let’s do that. Well, then you got a problem with that because compounding pharmacy, I mean, you know, if I, if I’m the pharmacy that we have in our district. I don’t want to mention their name. But if I’m that pharmacy, if I’m Jones Pharmacy, and people know I’m creating the drug for the death penalty, and you have people that are against the death penalty, they’re not going to come into Jones pharmacy. And then you’ve got the doctor who took a Hippocratic Oath, and now, are they violating that because they’re now creating an opportunity to kill somebody? So we’ll give them immunity and we’ll make them anonymous. Well, now the ends are justifying the means. That’s the wrong way you do things. It may be the way some legislation happens, and it should never happen that way. But by God, when you’re talking about somebody’s life, you don’t have ends justifying the means creating the opportunity to end that life. And that’s where the problem is. So we know that even with that drug, they still had some problems with it. And so again, the only sure way to kill them, is to shoot them, because it doesn’t violate the Eighth Amendment. But that’s a horrible thought. 

Ngozi Ndulue 21:34 

So do your views on the death penalty, really tie into questions of human dignity and how the criminal justice system really respects human dignity? 

Jean Schmidt 21:50 

Yes, because the cont-, our constitutional fathers were really concerned about criminal justice. When you look at the 10 amendments, when I taught it I called them the 10 commandments, four, five, six, seven and eight are about criminal justice. Your right to remain silent. Cruel and unusual punishment. Come on. They were dead clear about this. Even in the original Constitution, they had two issues: one was bill of attainder, and the other was housing, forcible housing that was in the original structure of the Constitution, because they understood the overreach the British had on their lives and they didn’t want that to happen to us. They, they had an understanding that you would get a fair trial, maybe not a fair outcome, but by God, you’d get a fair trial. And when we say that people are not always getting a fair trial, I mean the structure. You’ve got a prosecution’s office, they’ve got a bunch of prosecutors in there. Now they have a limited budget, but they can take all those eggs and put them into one basket for a capital punishment case. Then you got this, this poor person out there, whether they were a horrible criminal or falsely identified, either way, they’re now the defendant, and they have a public defender. Might be a brilliant individual, but they’re constrained by their own small office, the fact that we pay them up to $60 an hour, I pay, $60 an hour, are you kidding me? My physical therapist is $75 an hour, my massage is $75 an hour and my facial is more than that. I am paying somebody to defend my life, or the state is paying somebody to defend my life for $60 an hour. In my county, we pay a full time public defender $80,000 a year. Overtime at Amazon, you can make that much and I’m not kidding. Think about that. This is somebody that you’re just gonna have, your life is in their hands and the fact that they have to ask permission for expert witnesses? That they’re constrained by an artificial $25,000 amount of money to do the case? And that prosecutor can cry poor mouth, but he or she has the ability to take that entire staff and put them in this corner for a personal, for a point of time. It’s not fair. But didn’t our constitution say you get a fair trial? 

Ngozi Ndulue 24:31 

You covered a lot of ground again on that as far as a lot of what’s going on with the criminal justice system and the way that we are getting death penalty cases. You have talked about kind of social economics and how that affects who gets the death penalty. Could you talk a little bit about what struck you about Joe D’Ambrosio’s case as one of the 11 Ohio Death Row exonerees and why you felt that his case was an example of one of the, some of the issues with the death penalty system? 

Jean Schmidt 25:06 

He’s white. He was seven years in the military. He gets a job as a part time job at a construction company. He’s home in bed, sleeping, all by himself, and the murder takes place. And the individual that did the murder, lied about it, and put him at the scene of the crime. And he gets, he has no money, he’d just gotten out of the military, they’re from a very blue collar Italian family, he knows he’s innocent and so he thinks, well, this isn’t gonna affect me, I’m gonna get out of here. And he falls inside the trap of saying things, being open and he gets a public defender and a three day trial. Think about that, a three day trial, and he’s going to be executed. False identification, the public defender didn’t have the knowledge to understand that when you slit a throat, you can’t really scream help me, help me help me, that the evidence show that where they said the crime occurred, it didn’t occur, all of those factors. That, and I’m not saying that that lawyer was incapable, he didn’t have the ability to ferret out the issues, he didn’t have the resources necessary to make sure that what was being presented was, in fact, true. 

Ngozi Ndulue 26:42 

And so I think that that ties into the treatment of people with intellectual disability in Ohio and making sure that those folks don’t get executed. We’re seeing in some of the recent executions that even though the United States Supreme Court has said that you can’t execute people with intellectual disability, that people were still getting executed, because, you know, they brought their, you know, petition at the wrong time or at the time that they brought their petition, the courts were applying a different standard. Do you see some similarities between that and the procedural issues that you were talking about in, you know, DNA and exoneration that are facing Ohio prisoners? 

Jean Schmidt 27:25 

Yes. I mean, when you when you change a law regarding the ability to get a new trial? It does, it’s not retroactive. And we are an imperfect society. In the case of Tony Apanovitch — I think I’ve seen his name correctly, I could be saying it incorrectly — he, he didn’t realize he had to retake the DNA. He would have done it. Now, now he can’t get that evidence out there. That evidence that clearly had a judge say you can go back home. Cuyahoga County, you can retry him, but he’s going back home for the moment. And he’s home for three years, and then federal agents show up at his doorstep and say, you’re a fugitive of justice and now he’s back in the hell that he was in before, only he had three years of freedom, got married to an age appropriate woman with grandchildren that they were raising, had the time of his life, feeling, you know, the freedom that he believed he deserved. And now he’s back where he was before. 

Ngozi Ndulue 28:30 

So you’ve sponsored a number of bills where you’re really working to support victims of crime. How do you see the legislature’s consideration of the death penalty connecting to the interests of victims of crime and murder victims? 

Jean Schmidt 28:49 

Well, I would hope that people realize that the victims of crime is a lot, a wide swath of people. It’s the person who lost their loved one. They are the first victim, probably the most important victim, but you also have the the defendant, and if they have truly done it, his family or her family, they’re also victims. We also have the guards at the prison that become victims because they’ve developed a relationship with these inmates. You know, they’re there 24/7, they get to know them and if they have any likability about them at all, they’re going to have a part of themselves that like that individual. Cautious, do their job, but still realize that they’re a human being. And then you have the victim and that’s the person that has to put them to death. So there’s a lot of victims in this. And we know that for the guards in prison, we offer them the opportunity to have some psychological counseling. For those who put the victim to the criminals to death, they get that opportunity. The victims on the outside, not so much. It depends upon how the crime occurred. There’s a case where there’s an individual whose father was brutally murdered, but the father had drugs in his system. So that family wasn’t afforded the opportunity to have any help. Well, he’s an innocent bystander, his father was brutally murdered and just because his father had drugs in his system, we say, You don’t get any help? Come on. Let’s understand there are people out here that are really hurting through all of this, and do deserve our help. 

Ngozi Ndulue 30:41 

I want to kind of end about thinking about public safety. We know that this is a focus of the legislature. We know that folks in law enforcement, the former attorney generals, who have talked about the death penalty, have an interest in ensuring that we’re continuing to protect public safety. How do you see your work on this bill connecting to that work of creating a safe community? 

Jean Schmidt 31:07 

Well, first off, if we got the right person behind bars, they’re not going anywhere. They’re not getting out of prison. I love the false narrative, well, that’s going to be the next step. Uh, not with me. I want him to sit there. I want him to think about their crime. I want them to come to terms with themselves and God, and maybe start praying for the victims themselves. You know, I look at Dzhokhar Tsarnaev and I will, I will go explain this a little bit. I stood at the finish line in Boston, April 15, 2013. I finished the race, waited for my sister, saw those bombs go off, saw those people go into the medical tent because it is literally right behind, right behind the finish line. And I saw, I watched the trial, and I was angry and I was upset and I was thrilled at the time that he got the death penalty, now I’ve changed my mind on it. But he’s not going anywhere. Dzhokhar Tsarnaev is never going to see the light of day. Now if you end his life or not, don’t end his life quicker than God wants it, he’s never going to see the light of day. He’s in that prison until he dies, period. And that’s what happens if you remove the death penalty in Ohio. If they truly done it, they are in prison until the day they die. And if we’ve made a mistake, we’ve got — and I hate not, I hope it’s not 39 years — but we got the opportunity to get them out. And we found that it took 39 years to get that one of those Cleveland Three out, I forget which one it was. But it, sometimes it takes that long. But as long as they have a pulse, we can have, we can give them the right that they deserve to have a life that’s free. 

Ngozi Ndulue 32:53 

Thank you so much for talking with me today. 

Jean Schmidt 32:54 

You’re welcome. 

Ngozi Ndulue 32:55 

To learn more about the death penalty, you can visit the DPIC website at deathpenaltyinfo.org. And to make sure you never miss an episode of our podcast, you can subscribe to Discussions with DPIC on your podcast app of choice.