The death penalty called into question

Ohio Supreme Court Justice Paul E Pfeifer has recently been calling for the creation of a commission to review the cases of 160 death row inmates. The question it would need to ask is simply: does this person need to be on death row?

Now, it is clear that anybody blogging on this website will always ask that question and respond with a negative answer each time. We have as many reasons as there are cases and probably more besides.

But this is not just another abolitionist calling for change, but a state Supreme Court Justice who was one of the very architects of the Ohio death penalty laws 30 years ago. Three interesting issues arise when we look at this.

First, there is the relationship between politics and law, especially death penalty law. Second, it highlights the importance of clemency and its underlying tension with the ideas of consistency. Finally, it shows the tension between people and public that change and laws that do not.

It is important to look at Pfeifer’s political context in understanding this apparently courageous recommendation. He can make it because he runs for election unopposed. But few decisions are made in quite the same vacuum. Pfeifer himself freely acknowledges this and he suggests that the commission be convened as soon after the November elections as is possible. Why? Because it would otherwise provide political ammunition for opponents. A review of death penalty cases would be painted as being “soft on crime” or out of touch with victims' rights.

The call for review is not uncontroversial. Some have complained that using clemency to commute sentences undermines any sense of justice afforded by the law. The convicted are being “let off” the sentences the law demands. There is undoubtedly a tension here. If the law is “right” every time, if its decision should be final, why reserve an option, outside the law, to stop a sentence being carried out? The option of clemency outside the courts suggests the law doesn’t always get it right, that mistakes are made which might need to be corrected. Given that lives are at stake, this is a pretty colossal admission. In addition, clemency can only be given by state governors who are often running for further election -- the same problem discussed above.  So while there is an implicit admission that the law and courts don’t always get it right because the option of clemency exists, the person exercising that option is constrained by his own political career. The decision for clemency is a political one rather than one about fairness or morality.

There is also an explicit sensitivity to changing public opinion. There has been a reduction in the number sentenced to death since the mid '90s, and Pfeifer attributes this to the changing attitudes of prosecutors and Ohio citizens. This is incongruent with the rising number of executions; Ohio is on course to beat its own unsavoury record this year. Public defender Tom Young is even clearer on the discord between the law and public opinion stating:

“These cases 20 years ago that were indicted death penalty would not be indicted today.”

The bottom line seems to be that the law is out of touch with public reality. Life has changed, but the law hasn’t changed with it. It may be that it is time not just to review individual cases, but the very law that determines them.

What is most remarkable about the whole thing is the simple expression of doubt. The law is wrong or not doing what it was supposed to do. Some people on death row simply shouldn’t be there. When the stakes are literally life and death, this is deeply worrying. On the other hand, this expression of doubt should be applauded. These are the architects of the law looking critically at its effects and its relationship with society, all with an awareness of the corrupting influence of politics. This inquiry has led to calls for review of death sentences in individual cases, but, if pursued to its end, could arguably lead to a review of the use of the death penalty as a whole. This is probably far beyond what Pfeifer intends. However, what he proposes is a start at least.