On Wednesday December 14,  Ohio Supreme Court Justice Paul Pfeifer testified before the Ohio House Criminal Justice Committee in favor of a bill to abolish the death penalty and replace it with life without the possibility of parole.  The bill, House Bill 160, is sponsored by Democrats Ted Celeste of Columbus (brother of former governor Dick Celeste) and Nickie Antonio of suburban Cleveland.

 “The death penalty in Ohio has become what I call a death lottery,” Pfeifer told the House Criminal Justice Committee. “The application is hit or miss depending on where you happen to commit the crime and the attitude of the prosecutor in that county.”

He added: “I believe Ohio is no longer well served by our death-penalty statute. It should be repealed.”

At a press conference following his testimony, Pfeifer added the following observations:

• He absolutely can still be fair and impartial in death penalty appeals and has no intention of recusing himself from them.  He is constitutionally obligated to carry out the law as it now stands, and he will do so.
• Under the Ohio Code of Judicial Conduct, judges have a duty to come forward and advocate for changes they believe would improve the administration of justice.
• Because prosecutors in death penalty cases tend to use peremptory challenges to remove all jurors who disagree with the death penalty, even those who say they could be fair and impartial and follow the law, there is an inherent unfairness in the way death penalty cases are tried.
• Because of the enormous and unchecked prosecutorial discretion, there are significant differences in the death penalty from county to county (and he mentioned Hamilton Countyas one of the most pro-death penalty counties).
• The United States finds itself in very embarrassing company when it comes to countries that still use the death penalty—right up there with China, Saudi Arabia, and Iran.
• He thinks the next change from the U.S. Supreme Court will be to take another look at imposing the death penalty on the seriously mentally ill. 

Earlier this year, Pfeifer urged Gov. Kasich to follow the steps of Illinois Governor George Ryan and commute all death sentences to life without the possibility of parole.  Ryan did this in Illinois in January 2003.

Also earlier this year, in her first state of the judiciary speech as Chief Justice, Maureen O’Connor announced the formation of a joint task force with the Ohio State Bar Association to review the administration of Ohio’s death penalty.  She made it clear, however, that the task force was not going to consider whether Ohio should or should not have the death penalty.  When asked about this at the press conference following his testimony, Justice Pfeifer commented that there might be a minority report from this project.

Have we ever seen this kind of thing from a justice before?  Well, in February 1994, less than two months before he announced his retirement from the U.S. Supreme Court, Justice Harry Blackmun wrote this in an opinion dissenting from the U.S. Supreme Court’s decision denying review in  Callins v. Collins, a Texas death penalty case.

“From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored…to develop…rules that would lend more than the mere appearance of fairness to the death penalty endeavor…Rather than continue to coddle the court’s delusion that the desired level of fairness has been achieved…I feel…obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies… Perhaps one day this court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. I am more optimistic, though, that this court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness ‘in the infliction of [death] is so plainly doomed to failure that it and the death penalty must be abandoned altogether.’ (Godfrey v. Georgia, 1980) I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all.” 

If you are interested in this, read Linda Greenhouse’s wonderful book, Becoming Justice Blackmun.