Fairness and equality

Ohio's death penalty system is arbitrary and biased. Since 1983, fewer than 1% of Ohio’s 15,000-plus murders resulted in a death sentence. But are those individuals truly Ohio’s “worst of the worst,” or simply those with the worst lawyers, the wrong skin color, or the wrong geographic location?

Three decades after the United States Supreme Court approved sentencing guidelines designed to reduce arbitrariness, the death penalty is still unpredictably applied to a small number of defendants. Some of the most heinous murders result in life sentences, while less heinous crimes are punished by death. Meanwhile, race, geography, poverty, and other factors continue to determine who lives and who dies under Ohio’s capital punishment system.

A Lottery of Geography

Where a crime occurs in Ohio plays as significant a role in the defendant’s outcome as the nature of the crime. Consider the following:

There are 88 counties in Ohio, but 54% of all death row inmates come from just 5 counties (Cuyahoga, Franklin, Hamilton, Lucas and Summit Counties). The remaining 83 counties account for 46% of death row inmates. In addition, 60% of counties have no prisoners on death row.

Almost a quarter of Ohio’s death row inmates come from Hamilton County. By contrast, only 9% of Ohio’s murders take place in Hamilton County.

According to a 2007 report by the American Bar Association, a defendant is 2.7 times more likely to receive a death sentence in Hamilton County than the rest of Ohio, 6.2 times more likely than in Franklin County, and 3.7 times more likely than in Cuyahoga County.

Forty-three percent (43) of those charged with a capital crime in Hamilton County received a death sentence, but only 8% of those charged in Cuyahoga County were so unlucky.

From 1981 to 2011, more than 3,200 capital indictments were filed by county prosecutors, resulting in 265 death sentences. Cuyahoga County has filed more than 1,240 indictments. The next highest indicting county is Franklin at 497, followed by Hamilton at 167. Five Ohio counties have never filed a capital indictment.

According to data from the Ohio Supreme Court, nearly 64% of all Ohio counties have filed fewer than 10 capital indictments since 1981.

Since death penalty cases are significantly more expensive, prosecutors in counties with strained budgets do not seek the death penalty. As a result, the combination of geography and finances affect whether a defendant is sentenced to live or die

National picture: As in Ohio, the death penalty is used in a handful of U.S. counties in states where it exists. Below is a map of the 15 highest death penalty counties in the country since 1976. Source: Death penalty Information Center.

The Troubling Role of Race

"The numbers speak for themselves. A perpetrator is geometrically more likely to end up on death row if the homicide victim is white rather than black."

-Ohio Commission on Racial Fairness 1999

The race of the defendant and the race of the victim have a profound effect on whether or not the death penalty is issued. In Ohio and across the nation, African Americans have been executed at a rate disproportionately higher than Caucasians.

On death row in Ohio, 66% of the inmates are there for killing white victims and 31% are there for murdering black victims.

Race impacts death sentencing at every stage of the death penalty process, often in ways that are hidden or unintentional. Cross-racial eyewitness identification, for example, is much less reliable than eyewitness identification from within the same race or ethnicity. White jurors are less likely to be receptive to mitigating evidence like a history of abuse and more likely to find future dangerousness when the defendant is black – even when such jurors are not overtly racist.

Since Ohio’s current death penalty law took effect in 1981, 48% of those receiving a death sentence were African American, even though African Americans account for less than 12% of Ohio’s population.

Defendants who allegedly killed Caucasians are 3.86 times more likely to receive a death sentence than those who killed African Americans.

Since 2008, in Ohio cases resulting in executions, three quarters of the victims of the underlying murder were white. By contrast, African Americans generally account for about two-thirds of murder victims throughout the state.

When the public sees this level of disparity played out in the state’s death penalty, it compromises the integrity of the entire criminal justice system, sending a message that some lives are more valuable while others are more expendable.

Justice For A Few – Poor Defendants Dealt Incompetent Lawyers

“When a criminal defendant is forced to pay with his life for his lawyer’s errors, the effectiveness of the criminal justice system as a whole is compromised.”

-William Sessions, former FBI Director under President Ronald Reagan

Across the country, over 90% of those facing capital charges were too poor to afford their own attorneys. Capital defense is significantly more time-consuming and complicated than any other criminal defense work, requiring highly trained and experienced lawyers receiving adequate compensation for hundreds of hours of work. Although caps on court appointed attorney fees vary from county to county, the overall result of strained budgets is a poorly paid defense counsel. Thus, many defendants end up with inadequate representation because few qualified attorneys are willing to work so much for very low pay.

A 2000 study found that between 1973 and 1995, courts undertaking reviews of capital cases found errors that were sufficient enough to require a new trial or a new sentence in over two thirds of the cases.

Poor legal counsel has accounted for 61% of the Sixth Circuit Court of Appeals’ decisions to overturn death sentences since 1981.

Ohio only requires that defense counsel complete 12 hours of training, continuing legal education and professional development every other year. There is no additional training or requirement for those defense attorneys who work on capital defense cases. Furthermore, there is no statewide, independent authority to evaluate, observe, train or even select the defense counsel who represents indigent clients in capital cases.

The cap on attorney fees varies by county in Ohio, ranging from $3,000 to $50,000. A defendant’s constitutional right to counsel is therefore limited by a cap set by county commissioners. This can hardly be considered just.

The amount Ohio pays to reimburse individual counties for indigent defense is on a downward trend, according to a study by the Associated Press.

Even in cases where extraordinary fees are allowed, courts often approve the costs only after the proceedings are completed, requiring defense lawyers to work for weeks, months or even years without knowing how much they will be paid. This, coupled with already low fees, puts capital defense attorneys in a position to have to choose to work without pay or neglect to zealously represent their clients.

A 2007 report by the American Bar Association found that Hamilton County, the county with the most death row inmates, fails to provide constitutional protections to its indigent defendants.

Broad and Arbitrary

Individual prosecutors have broad discretion whether to seek the death penalty in a death-eligible case. Indeed, prosecutoral discretion is one of the hallmarks of our nation’s criminal justice system. However, in Ohio, the definition of “death eligible” has continued to broaden over the years, providing virtually no limitations for prosecutors in determining which crimes are truly the “worst of the worst.”

Study after study has found that states increase the risk of wrongful convictions and unfairness when their death penalty statutes allow for broad application. One of the most comprehensive state death penalty studies in the country (Illinois) recommended limiting the law to only the most extreme cases by using five eligibility factors. Yet nearly half of Ohio’s death row would not have been eligible for death if similar factors were used here.

The broad use of aggravating factors and special circumstances making a case death-eligible has raised particular concerns among researchers studying arbitrariness and bias in death sentencing. Many crimes that would not otherwise be considered "the worst of the worst" easily fall into the category of felony murder, creating a death penalty with broad discretion and lots of room for seemingly random outcomes. Such broadness paves the way for other factors like race, geography or gender to creep into death penalty decision-making. Many researchers, death penalty proponents among them, have recommended eliminating the felony-murder aggravator, but Ohio continues to use it.