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Ohio resumes executions, but concerns remain
SHERRY KARABIN
Legal News Reporter
Published: August 25, 2017
The first of more than 20 planned executions has taken place in Ohio, but questions concerning how and when the death penalty is imposed and whether it is employed equitably continue.
The July 26 execution of Akron child killer Ronald Phillips was the first to take place in the state in more than three years.
Prior to his execution, American Bar Association President Linda A. Klein issued a statement urging Gov. John Kasich to delay resuming executions until all the reforms recommended in the ABA’s 2007 Ohio Death Penalty Assessment Report had been implemented.
The American Bar Association, which does not take a position on the use of the death penalty as a means of punishment, worked with a team of Ohio legal experts, including the late Ohio Supreme Court Justice J. Craig Wright, to produce the report.
According to Klein’s statement, the team found a number of problems, including significant geographic and racial bias that “resulted in an inconsistent and unfair administration of the state’s death penalty and inadequate protections for individuals with mental illnesses.”
Klein said a handful of reforms have been passed in Ohio over the last two years and several important bills are pending in the legislature, adding “some individual prosecutors have taken the initiative to implement important reforms to improve the fairness of capital litigation in their counties.”
However she said, “Despite this progress, the majority of the assessment’s recommendations have not been adopted statewide. Delaying the planned executions until all needed reforms have been implemented will not result in the release of death row inmates, but it will allow time to ensure that Ohio’s death penalty system comports with due process.”
Ohio Attorney General Mike DeWine’s office declined to comment on the American Bar Association statement.
JoEllen Smith, communications chief for the Ohio Department of Rehabilitation and Correction, sent the following email to the Akron Legal News, stating “Ohio intends to continue to fulfill its statutory obligation of carrying out court-ordered executions in a lawful, humane and dignified manner.”
The last execution to take place in Ohio was in January 2014, when the state used a never-before-tried two-drug combination that witnesses said left inmate Dennis McGuire gasping for air and struggling for about 26 minutes.
In response, the state abandoned the protocol and executions were halted by a federal judge and later by the governor as officials sought to determine what went wrong and come up with a new option.
The moratorium continued for more than three years as Ohio officials encountered difficulties acquiring the drugs needed to carry out the executions and lawsuits were filed over plans to use a new three-drug protocol, which death row inmates argued constituted “cruel and unusual punishment.”
The three-drug combination used to execute Phillips reportedly included midazolam, rocuronium bromide and potassium chloride.
The 43-year-old death row inmate was convicted of the 1993 rape and murder of his Akron girlfriend’s 3-year-old daughter, Sheila Marie Evans.
According to reports, it took approximately 10 minutes for Phillips to die and there were no signs of distress. This after his execution was delayed several times, including because of court battles challenging the state’s use of the sedative midazolam, employed in some problematic executions in Ohio and other states.
Ronald Kopp, immediate past president of the Ohio State Bar Association, said the execution of Phillips could pave the way for the full resumption of the death penalty in state.
Twenty-six executions are scheduled through 2020, with the next one expected to take place on Sept. 13.
“The state has had a lot of problems finding the right drug combination that would keep the inmate from suffering during the execution,” said Kopp, administrative partner at Roetzel & Andress.
“The public defender who worked on the Phillips case has said that just because Phillips did not appear to be suffering does not mean that he was not in pain,” said Kopp.
“I believe more research needs to be done on the use of the new drug combination before more executions take place.”
The American Bar Association’s attempt to stop executions from resuming in Ohio had nothing to do with the drugs used to carry out the process.
“The recommendations in the 2007 report dealt with its (death penalty) equitable and fair use,” said Kopp. “Some of the suggested changes have been implemented in Ohio.
“However the ABA position was that they want to see all of the recommendations addressed.
“The Ohio State Bar Association has not taken a position as to each recommendation, but instead assesses positions as to respective issues as they come forward,” said Kopp.
The OSBA has also not taken a formal position on whether the state should have a death penalty.
Maggie Ostrowski, director of public and media relations for the OSBA, said “that question wasn’t even on the table when the Joint Task Force on the Administration of the Death Penalty met and completed its work.
In an emailed statement, she explains “Our members universally agree that as long as the death penalty is in effect in Ohio, it must be administered fairly, but as evidenced by the Dissent to the joint task force report, there are vastly differing opinions within the legal community we represent as to the best way to achieve that goal.
“We endorsed Senator Bill Seitz’s legislation last year regarding post-conviction relief procedures that resulted from the Task Force’s recommendations. We have also consistently pushed for additional funding for the Public Defender’s Office. We will continue to consider other proposals as they come before the Ohio General Assembly and the Ohio Supreme Court.”
John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said the organization supports Gov. Kasich’s decision to resume executions.
“First of all, we believe that the 2007 report was biased,” said Murphy. “There were no Ohio prosecutors on the committee that issued the report.
“With respect to the recommendation to create a board to review all convictions, my response was that we already have one: The court system.
“Our justice system is one that is full of due process protections,” he said. “It takes years to litigate every death penalty case. Every case is reviewed by the Ohio Supreme Court and usually by the federal courts as well, sometimes repeatedly.
“Some of the report’s recommendations have been implemented. Many of the others are unnecessary,” said Murphy.