Ohio justice rejects death penalty law he wrote

[February 15, 2012]  COLUMBUS, Ohio (AP) -- As a young state senator 30 years ago, Paul Pfeifer helped write Ohio's death penalty law. Today, as the senior member of the state Supreme Court, he's trying to eliminate it.

It's not uncommon for sitting judges to change their mind on the death penalty -- U.S. Supreme Court Justice Harry Blackmun famously said in 1994 he would no longer "tinker with the machinery of death" -- but Pfeifer may be the only one to argue so ardently against a capital punishment law he himself created, and yet continue to rule on death penalty cases.

"I have concluded that the death sentence makes no sense to me at this point when you can have life without the possibility of parole," Pfeifer said in his most recent public comments, testifying in December in favor a bill to abolish Ohio's law. "I don't see what society gains from that."

After the U.S. Supreme Court declared capital punishment unconstitutional in 1972, states spent several years rewriting their laws. Ohio's first attempt, in 1974, was found unconstitutional, but the second try, when Pfeifer was chairman of the Senate Judiciary Committee, was enacted in 1981 and has never been successfully challenged. Lawmakers pledged at the time to draft a law reserved for the most heinous murders.

At least two county prosecutors say Pfeifer should stop ruling on death sentences, including Hamilton County prosecutor Joe Deters, who said that Pfeifer's actions were inappropriate. "It gives rise to a credible inference that he cannot be fair to both sides," Deters said recently.

Pfeifer's position is unusual but on solid legal ground as long as he keeps his opinions out of his rulings, said Marianna Bettman, a University of Cincinnati law professor and former state appeals court judge.

Ohio has 148 inmates on death row. Executions are temporarily on hold while federal courts review the state's lethal injection procedures, but that delay is not expected to last forever. The Democrat-sponsored bill to abolish the death penalty has little chance of passing.

Pfeifer, a Republican, has always charted his own course on the court. For years he was a member of a foursome -- two Democrats and two moderate Republicans -- dubbed "the Gang of Four" for a series of 4-3 rulings that critics said were anti-business and favored Democrats and their causes. He's also not afraid of mud-slinging: In his spare time, the lifelong farmer raises Black Angus cattle.

Pfeifer had been on the court only two years when, in 1994, he dissented on a vote upholding the death penalty for a man sentenced to death for shooting his ex-girlfriend at the elementary school where she worked as a custodian. Already, he appeared to be having his doubts, writing that "the death penalty is special" and should be "reserved for those committing what the state views as the most heinous of murders." That defendant, John Simko, died of natural causes on death row in 1997.

Pfeifer made similar statements in court opinions over the years. He took his position public in 2001, calling unsuccessfully for an independent panel to review the law. He began to complain that prosecutors were overusing the statute, seeking death sentences in domestic quarrels that went bad instead of for the worst of the worst killers.

He often cites the case of Richard Nields, who murdered his girlfriend in their southwestern Ohio home in 1997, then stole her car and travelers' checks, as an example of overreaching by prosecutors.

"This case is not about robbery," Pfeifer wrote in his dissent to the court's 2001 decision upholding Nields' death sentence. "It is about alcoholism, rage and rejection and about Nields' inability to cope with any of them." Ultimately, Gov. John Kasich agreed and last year changed Nields' sentence to life without parole.

In January 2011, Pfeifer made his strongest statements to date, calling on Kasich to empty death row.

Pfeifer says he's required as a judge to take positions to make laws better, hence his current stand. He's also required to rule according to the law and the Constitution, which he says he does. Ohio Supreme Court Chief Justice Maureen O'Connor says she's comfortable Pfeifer is following the law and not showing bias.

Since 2001, Pfeifer has written the majority opinion upholding death sentences in five cases, dissented in two others and upheld death sentences while disagreeing on aspects of the decision in four other cases.

As recently as December, Pfeifer set an execution date, signing the order for a man who raped and killed his girlfriend's 3-year-old daughter.

Ohio first allowed the option of life without parole instead of a death sentence in 1996, then changed the law in 2005 to make it even easier to put killers behind bars for life while skipping death penalty charges altogether. Pfeifer says those changes have made the death penalty unnecessary.

State Rep. Ron Young, a conservative Republican, challenged Pfeifer on this point in December, arguing that removing the death penalty would create a slippery slope where eventually life without parole would be challenged as too harsh.

Pfeifer's experience as a death penalty supporter-turned-opponent is not isolated.

Gerald Kogan, a retired chief justice of the Florida Supreme Court who prosecuted death penalty cases early in his legal career, now says the death penalty should be abolished, with the possible exception of worst of the worst defendants such as Osama bin Laden or a mass serial killer.

Rudy Gerber helped write Arizona's death penalty law in the 1970s but now opposes capital punishment and represents death row defendants trying to escape the law he created.

In California, Don Heller authored a 1978 ballot initiative that created the state's death penalty law. Thirty years later, with more than 700 inmates on death row, Heller has changed course and is advocating the law's demise, saying it's too prone to human error.

[Associated Press; By ANDREW WELSH-HUGGINS]

Andrew Welsh-Huggins can be reached at http://twitter.com/awhcolumbus.

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