“Arbitrary in Its Application?” Not Exactly.

By Guest Columnist May 12, 2009

by Andrew Grant-Thomas This past Saturday I moderated a panel called “Perspectives on Ohio’s Death Penalty” at the Moritz College of Law at the Ohio State University. Here’re some takeaways. Don’t kill a white person, don’t kill a woman, and definitely, positively don’t kill a white woman if you want to escape the death penalty. Stay away from the South, especially Texas, and stick to the stretch of states extending from Michigan west to North Dakota – no death penalty in those states. In Ohio, if you’re indicted on a capital charge in Hamilton County (Cincinnati) you’re five times more likely to end up on death row than if you’re indicted in Cuyahoga County (Cleveland). And if you find yourself before a 3-judge panel at the 6th circuit court of appeals, the main review panel for Ohio, pray that you draw at least two judges appointed by a Democrat. Panels controlled by Republican appointees uphold death penalty convictions three-quarters of the time. Panels controlled by Democratic appointees REVERSE the sentence three-quarters of the time. That means that half the time life or death rides, literally, on the luck of the draw. In Ohio, and across the country, who gets the death penalty isn’t exactly just about the facts of the case. The weight of the evidence says that the death penalty has little, if any, deterrence value. Many victim families reject the argument often made on their behalf that the death penalty helps with closure. In fact, when Ohio Governor Strickland granted clemency to death row inmate Jeffrey Hill this past February, the victim’s family called for it. So with all that, why, according to a recent Ohio Poll, do only one in four Ohioans want to abolish the death penalty, less than want to legalize marijuana (37%) or same-sex marriage (39%)? Here’re my guesses. For one, the pollsters asked a bad question. If the choice is between having and not having the death penalty, Americans want it. But if the choice is between the death penalty and life without parole – which is an option in Ohio — support for the death penalty goes way down. Second, even some people who agree that the death penalty should only be used rarely want to preserve it for really especially hideous crimes. But the link between the ugliness of the crime and the use of capital punishment is imperfect, at best. I suspect that the two biggest reasons we generally support the death penalty are related: we don’t know the facts very well and we don’t really care in any case. As one panelist said on Saturday, few of us expect to be in a position to be hurt by the system’s unfairness. I wonder how many of the 180 inmates on Ohio’s death row right now once felt the same way. Andrew Grant-Thomas is the deputy director for the Kirwan Institute for the Study of Race and Ethnicity.