Ohio Republican Representative John Becker of the 65th District, near Cincinnati
recently proposed legislation in the Ohio House of Representatives that
would extend the potential use of the death penalty as an option in cases
involving certain sexually oriented offenses.
The proposed legislation seeks to amend a multitude of sections of the
Ohio Revised Code that would create the statutory authority for imposing
a sentence of death by lethal injection for rape, sexual battery, and
unlawful sexual conduct with a minor when the offense is committed by
someone who previously has been convicted of, pleaded guilty to, or been
adjudicated a delinquent child for committing any of those offenses or
the former offense of felonious sexual penetration. The proposed law also
seeks to re-name those offenses when committed by such an offender aggravated
rape, aggravated rape of a child, aggravated sexual battery, aggravated
sexual battery of a child, and aggravated unlawful sexual conduct with
a minor and classify them as felonies of the first degree and capital offenses.
This new and wholly reactionary piece of legislation comes on the heels
of the Ariel Castro case out of Cleveland in which the Defendant - now
sentenced to life plus many more years in prison - kidnapped and raped
several women for many years. Sadly, it provides a prosecutor the ability
to use an individual's prior childhood adjudication as a means of
creating the aggravating circumstances necessary for the death penalty
to apply. But, even more interesting, is that House Bill 244 was introduced
in the shadows of an Ohio Supreme Court Task Force charged with reviewing
capital punishment in Ohio and developing a report to present to the Ohio
legislature that will include recommendations for fixing and improving
the death penalty system in Ohio. In case the reader is wondering, the
Task Force is not charged and is explicitly prohibited from discussing
the abolition of or moratorium of the death penalty in this State.
Under these circumstances, it is well to take a step back from the moral
arguments for and against the death penalty, and look at the practical
realities of the system. It is costly. So costly, in fact, that one Ohio
Supreme Court Justice, Senior Justice Paul Pfeifer has publicly voiced
his opposition to its continued use in Ohio. Through the state appellate
process and, in many cases, through the federal habeas corpus proceedings,
the Defendant's right to counsel continues until nearly the day of
execution. A good example of the cost to taxpayers can be found right
here in Bucyrus, Ohio.
In 1994, Kevin Keith was found guilty of multiple counts of aggravated
murder and subsequently sentenced to death. Over the course of sixteen
(16) years of appeals - at the taxpayers' expense - Mr. Keith's
death sentence was eventually commuted to life without parole after the
death warrant was issued for his life. Even to this day, a review of the
trial court's docket in Crawford County, Ohio demonstrates that Mr.
Keith continues to seek a new trial in this case through his public defender
at public expense.
In addition, death penalty litigation takes time. Years and years are spent
in state and federal habeas proceedings, as the Kevin Keith case demonstrates.
All the while, victims' families (and the Defendants' families)
are left to relive the crime over and over again with no sense of finality
- no ability to grieve and begin to move forward with their lives.
Essentially, Representative Becker's proposed bill seeks to expand
the ultimate sentence to more crimes, and thus, expand all of the constitutional
rights of counsel and state and federal appeals. Without arguing the essential
human rights and constitutional issues underlying the proposed legislation,
the brunt of the proposed amendments will be borne by the taxpayers in
the place that hurts them the most - their wallets. Even more disconcerting
is that when we begin to expand the use of the death penalty, we open
ourselves to greater room for error.
Through the great work of the Innocence Project - with offices right here
in Ohio - wrongfully convicted individuals are being set free on almost
a regular basis. In fact, as of August 20, 2013, the Innocence Project
has exonerated 311 people from prison. This demonstrates a flaw our death
penalty system, which is so fragile that a single mistake can result in
the State funded murder of an innocent person. Sadly, this also means
that a killer remains on the streets.
Furthermore, expanding the scope of the death penalty will do no more to
deter crime, more specifically, sex offenses that it does to deter murders
(turn on your nightly news for the answer to that query). It will increase
costs to the everyday taxpayer and will result in longer, drawn out litigation
that hurts only the parties involved. Finally, it opens we, as a society
up to a greater opportunity for error; and, no matter how egregious the
crime, there is no justice in taking an innocent man's life regardless
of whether it was intentional, unintentional - by an individual or by
It is this form of thoughtless, sad reactionary legislation that creates
bad law, and bad law results in injustice. In reading House Bill 244,
I cannot help but remember the Ohio-born "Attorney for the Damned,"
Clarence Darrow's closing in the famous Leopold and Loeb case:
...I know that every step in the progress of humanity has been met and
opposed by prosecutors, and many times by courts. I know that when poaching
and petty larceny was punishable by death in England, juries refused to
convict. They were too humane to obey the law; and judges refused to sentence.
I know that when the delusion of witchcraft was spreading over Europe,
claiming its victims by the millions, many a judge so shaped his cases
that no crime of witchcraft could be punished in his court. I know that
these trials were stopped in America because juries would no longer convict...
"Do I need to argue to Your Honor that cruelty only breeds cruelty?
That hatred only causes hatred; that if there is any way to soften this
human heart which is hard enough at its best, if there is any way to kill
evil and hatred and all that goes with it, it is not through evil and
hatred and cruelty; it is through charity, and love, and understanding?
I am not pleading so much for these boys as I am for the infinite number
of others to follow, those who perhaps cannot be as well defended as these
have been, those who may go down in the storm, and the tempest, without
aid. It is of them I am thinking, and for them I am begging of this court
not to turn backward toward the barbarous and cruel past...
Ohio must heed Darrow's call made nearly 100 years ago in a Cook County,
Illinois courtroom and make a step in the progress of humanity and oppose
this legislation for whatever reason and any reason and every reason.