JUSTICE PFEIFER TELLS HOUSE PANEL PROPOSED REVIEW 
OF DEATH PENALTY IS APPROPRIATE AT THIS TIME

A Republican Ohio Supreme Court justice who as a state senator two decades ago guided enactment of Ohio's death penalty law told a House panel Thursday now would be an appropriate time for a study and review of issues surrounding its application. 

Justice Paul Pfeifer outlined his views before the House Judiciary Committee on a proposal (HB 172) which Rep. Shirley Smith (D-Cleveland) introduced to create an 18-member Capital Case Commission to conduct an analysis of the capital punishment system and recommend improvements. 

As a member of the Senate, Justice Pfeifer chaired the Judiciary Committee which crafted the death penalty law in 1981. "From my historical perspective I think 20 years after (enacting) a statute as important to the structure of the criminal justice system as the death penalty is would be an appropriate time to review it to determine that we have complete confidence in the trends of its applications to the citizens of this state," he said. 

Justice Pfeifer said he does not believe Ohio has the kind of problems with its capital punishment law as other states such as Illinois or Texas. He said that during his decade-long tenure on the Supreme Court he can recall only a couple of cases in which there was any doubt that a defendant in a capital case had in fact caused the death of the victim. 

"I don't believe that we have in any substantial degree folks sitting on death row who maintain claims of innocence. I'm sure there are a few but it would be the rare exception, innocence in the terms of they did not cause the death of the person," he said. 

Justice Pfeifer indicated the proposed commission could collect the kind of statistical information needed to answer questions raised about application of the death penalty based on race or geography. 

"The principal argument that I'm aware of that's been advanced in terms of disproportionate application of the death penalty according to race relates to the race of the victim rather than the race of the defendant," he said, noting some academics argue a disproportionate number of cases in which prosecutors sought the death penalty involved white victims. 

"I think the most troubling thing I've heard with regard to the death penalty is that if your victim is black you may be less likely to receive the death penalty than if your victim is white," Justice Pfeifer said. "We do not have the data that would make it possible to make a determination about the proportionality of the application of the death penalty on the basis of race." 

As for geographic disparities, Justice Pfeifer acknowledged the Supreme Court sees "a fair number" of death penalty cases from Hamilton County. "But I will tell you maybe there's a reason why they have the view they have about the death penalty in Hamilton County, because some of the most grotesque, horrific death cases that we receive come out of Hamilton County," he said. "I don't think you're going to find it's disproportionately geographically applied." 

He noted changes in the U.S. Supreme Court and society itself over the last two decades, pointing to a recent federal court ruling that blocked executions of the mentally retarded. "I don't recall in 1981 anyone raising or discussing...do we really want to apply the death penalty to persons who are mentally retarded? I don't think the Legislature thought about it," he said. "So that's an example of how our level of consciousness sort of changes with time." 

Justice Pfeifer said it is "critically important" for capital punishment to be seen as "fair and just and equally applied to all" if the public is to have confidence in the criminal justice system. 

Criminal defense attorney David Stebbins of Columbus, testifying in support of the bill on behalf of the Ohio Association of Criminal Defense Lawyers, said problems remain in how the death penalty is applied in the state. As of May 12, there were 207 men on death row, the sixth largest in the country. African-Americans, who represent 12% of the state's population, make up 51% of inmates on death row. 

Mr. Stebbins said that of the 207 men on death row, 23% were sent there from Hamilton County, and 18% from Cuyahoga County. "The fact that Hamilton County, the third most populous county in the state, has sent to death row almost one quarter of its inmates, suggests that there exists some reason to examine this disproportionality," he said. 

Professor Margery Koosed of the University of Akron Law School delivered to the committee a summary of a 1997 Ohio State Bar Association report calling for review of the death penalty system. Among its conclusions: poor capital defendants must be provided with appointed attorneys whose effectiveness is not undermined by inadequate compensation and inadequate compensation for experts. "Everybody else around the country has come to the conclusion there's room for improvement," Ms. Koosed said. 

Greg Meyers of the Ohio Public Defender's Office said seven executions have taken place in Ohio under the 1981 law and two more may occur this month. He said the proposed commission could provide the kind of data necessary needed to properly evaluate the system. "No one in Ohio has the answers...this bill will yield," he said. 

Source: Gongwer News Service - Ohio Report No. 108, Volume 72 - June 05, 2003