Ohio and California: a new dawn for abolitionism?

This year, both Ohio and California have issued two bills replacing the death penalty with life imprisonment without parole.

In 2010, with eight executions, Ohio placed itself on the second rank of the ignominious podium of US retentionist states, preceded only by Texas. In March 2011, the General Assembly of the State of Ohio approved House Bill (HB) n.160, envisaging the abolishment of the death penalty and its replacement with life imprisonment with possibility of parole after serving 20 or 30 years of imprisonment or without possibility of parole, depending on the case. Although still waiting to go through the following stages before becoming a law, HB n.160 may represent something more than an isolated attempt to reverse the state’s death penalty record.

Two further developments in Ohio’s administration of penal justice are worth noting. In July 2011, US District Judge Gregory L. Frost issued a ruling granting a stay of execution for Kenneth Smith and putting on hold all the executions scheduled for an indefinite period of time. The ruling states that Ohio’s failure to follow death penalty protocols during the lethal injection process was an “embarrassment” and created a “haphazard application” of the policies themselves. Already in March 2011, Ohio had adopted a one-drug inhumane protocol of execution using pentobarbital to compensate for sodium thiopental shortages. Reprieve played an important role in this battle, conducing a strenuous yet successful battle to stop the Danish manufacturer Lundbeck, the sole producer of pentobarbital, from supplying the drug to US Departments of Corrections and Rehabilitation. In September 2011, the Ohio Supreme Court Chief Justice Maureen O'Connor announced that the Court will establish a Joint Task Force to study how the death penalty is administered in Ohio. Even if none of these measures explicitly question the constitutionality of the death penalty per se, together they might give more breathing space to the discussions about capital punishment in Ohio at both an institutional and public opinion level.

California is following a similar path. Executions have been on hold in the Golden State since 2006 on the ground that the three-drug lethal injection process may be unconstitutional, violating the VIII Amendment of the US Constitution, which bans “cruel and unusual punishment”. This gap has left room to new abolitionist initiatives. Democratic Senator Loni Hancock sponsored in February 2011 Senate Bill (SB) n.490, promoting the substitution of the death penalty with permanent imprisonment. The bill would become effective once submitted to and approved by the electors at next year’s statewide general election and, currently, is still being discussed by the appropriate commission. This initiative is strongly supported in California by Taxpayers for Justice, which launched the Safe California campaign aiming at the replacement of the death penalty with life in prison without possibility of parole.

Whether or not HB n.160 and SB n.490 represent a symptom of a wider trend of dissatisfaction with the death penalty across the US is not easy to determine. On the one hand, the crucial months preceding the 2012 presidential race will inevitably bring questions such as unemployment, taxes and immigration to the fore, thus leaving the death penalty issue on the background. On the other hand, the death penalty issue still plays a crucial role in the electoral debate, both for “traditional” ethical reasons and for contingent economic reasons. It is indeed noteworthy that – following the pernicious effects of the economic crisis – the argument of the unbearable costs of the death penalty system is gaining strength. Finally, to add substantial weight to the abolitionist cause, last month’s execution of Troy Davis has contributed to further ignite the debate about the reform of the US penal system and about the abolition of the death penalty. According to a Gallup Poll taken on 3-6 October, 35% of the Americans interviewed oppose the death penalty. It is the highest opposition since 1972 and hopefully a first step towards an important change.