Capital punishment faces an uncertain future in Ohio

Matthew T. Mangino
The Youngstown Vindicator
January 4, 2015
Nearly a year ago, Dennis McGuire’s execution in Ohio took an inordinate amount of time. A procedure that typically took 10 minutes lasted more than 25 minutes. During the prolonged execution McGuire gasped and snorted.
His family said that Ohio’s new lethal injection protocol amounted to cruel and unusual punishment. McGuire’s family filed a federal lawsuit, alleging that the drug maker that produced the medications illegally allowed the drugs to be used for an execution and should be prohibited from making them available for capital punishment.
There has not been an execution in Ohio since, although prior to McGuire’s execution, Ohio was second to only Texas in the number of executions carried out since 2010.
With an execution scheduled for Feb. 11, and federal Judge Gregory L. Frost’s moratorium ripe for rescission, another lawsuit has been filed in Ohio with an eye toward stopping executions. This lawsuit filed by four death-row inmates doesn’t challenge the inmates’ convictions; the morality of the death penalty; or whether lethal injection is cruel and unusual punishment.
Secrecy rules
The four death-row inmates are challenging the constitutionality of Ohio’s new execution secrecy rules.
The federal lawsuit claims the new law, which shields the identities of most participants in Ohio’s execution process, violates their rights to free speech and due process, reported The Plain Dealer of Cleveland.
Gov. John Kasich signed the bill into law in December. Supporters of the new law contend it is needed to protect individuals involved with Ohio executions from harassment and potential harm.
That reasoning seems to fly in the face of the U.S. Constitution. Prosecutors who pursue the death penalty are not shielded from identification for their protection. Trial judges and jurors are exposed to the public during trial. The appellate judges who make countless decisions about whether executions should proceed actually sign their names to their decisions.
Yet, the manufacturer of the execution drugs — companies who make a profit on the drugs — can remain anonymous. The identity of doctors and prison officials who participate in executions shall be sealed forever?
Secret identities
Other states have pursued secrecy to protect those involved in executions. In Florida, executioners’ identities are kept secret. Ohio’s response to an execution that had gone awry is a glimpse into what appears to be the beginning of the end for the death penalty in Ohio and across the country.
The problem is about more than secrecy — it’s about the slow undoing of the death penalty. There were only 35 executions carried out across the country in 2014. Only eight states carried out those executions, in fact three states — Texas, Missouri and Florida — were responsible for 28 of the 35 executions.
There are 32 states that have capital punishment on the books. Although governors in Oregon, Colorado and Washington have imposed moratoriums on executions. Ohio has Judge Frost’s moratorium. In seven other states with the death penalty, there has not been an execution carried out in at least 10 years.
Eight executions scheduled for December were postponed by court order. Three of those postponed executions were to take place in Pennsylvania. The Commonwealth of Pennsylvania has executed three people since 1977, and all three volunteered to be executed. Pennsylvania has not involuntarily executed a condemned inmate since 1962.
Declining numbers
The 35 executions carried out last year are the fewest in 20 years. Things don’t look much better for the death penalty in 2015. The first three out of four executions for 2015 have already been postponed. The fourth is scheduled for Pennsylvania, and there is little likelihood of that execution being carried out.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.