It's been more than three years since Ohio last executed a convicted killer. Unfortunately, the state is poised to resume the barbaric practice next week despite serious questions over respect for constitutional protections and the basic fairness of how the state administers the capital punishment system itself.
Capital punishment had been halted in the wake of a botched execution. In early 2014, the state had converted to a new, untested two-drug lethal injection protocol — the sedative midazolam followed by hydromorphone, a painkiller — because it no longer could find suppliers for pentobarbital or sodium thiopental, the more powerful barbiturates it previously used in both single- and three-drug protocols.
Critics warned that midazolam wouldn't sedate inmate Dennis McGuire sufficiently, and, indeed, witnesses reported that McGuire "snorted, gasped and struggled" during a procedure that dragged on for 26 minutes, more than 10 minutes longer than lethal-injection executions usually take. (Midazalom does not have the same anesthetic effect as a barbiturate; an expert in pharmacology and toxicology offers a good overview of execution drugs here.)
That grotesque killing led the state and, later, a federal judge to halt executions until officials could figure out what went wrong, and how to fix it.
Ohio already was reexamining its capital punishment system, and three months after McGuire's execution, the Joint Task Force to Review the Administration of Ohio's Death Penalty issued 56 recommendations aimed at insuring defendants' rights were protected and that the innocent were not executed.
But to date, "the most substantive of our recommendations to the Legislature lay idle," retired state Judge James Brogan, who chaired the task force, complained Wednesday. "This lack of action is disconcerting and will enable the core problems we identified to continue and potentially lead to wrongful death penalty convictions."
The safeguards range from expanding defendant access to legal help, to barring death sentences unless specific biological evidence or a voluntary recorded confession link the suspect to the murder, to removing the death penalty from specific types of felony murder (committed in the commission of another crime).
Yet Ohio intends to forge ahead anyway, despite a dodgy history of wrongful convictions. Nine death row inmates in Ohio have been exonerated since 1979, four of them in the past four years. All but two of the nine had served at least a quarter-century before their exonerations, and three had served 39 years in prison. That is a pretty high failure rate in a state with 140 people on death row, and 53 executions since 1999.
The prospect that Ohio might resume killing the condemned before fixing the flaws spotlighted by the task force (I doubt they can be fixed) has sparked outrage, and a campaign is underway urging Gov. John Kasich to reinstate a moratorium.
This, of course, puts Kasich, a once and possibly future presidential contender, in a bit of a corner. Kasich is pro-death penalty, Still, his decision here shouldn't be couched in terms of political popularity, but in terms of morality and good governance. It is immoral to kill, especially so for a state to kill its own citizens.
More prosaically, capital punishment, once administered, cannot be undone, but the system that delivers it is rife with errors, leading to wrongful convictions. It also is inherently unjust in that it falls disproportionately on the poor and minorities. And it is a massively expensive system to maintain, a cost that becomes harder to defend when you factor in the wrongful convictions — making it an expensive and failed system.
Rather than rushing back into the immorality of executions, Ohio ought to move in the opposite direction, and take steps to end the practice altogether.