Ohio is set to become the Texas of the North. Here’s why it shouldn’t.
Time is running out for Ronald Phillips, who is scheduled to be executed in Ohio later today. If it proceeds, the execution would be Ohio’s first in over three years. Ohio, like the rest of the country, has experienced a drastic decline in executions over the past decade. But, in a rapid change of course, the Buckeye State has planned to execute 27 death row inmates between now and September 2020. If Ohio stick to its plan, it will execute more people over the next three years than any other state — save Texas — has executed over the past three years. That’s a bad idea.
One need not move past Ronald Phillips’s case to unearth the seismic defects in Ohio’s capital punishment scheme. In 1993, when a jury sent Philips to death row, the jurors did not have the option to impose a life without parole sentence. Today, every jury has that option. It was one of the reasons why annual death sentences in Ohio have plummeted from a peak of 25 down to just four new sentences in 2016.
There is reason to believe a jury may have spared Phillips’s life. He was 19 years-old when he committed the murder that put him on death row. The Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishments, bars the execution of a person who was under the age of 18 at the time of the crime — regardless of how aggravated the offense. That line is less bright than blurry when one really considers moral culpability. The U.S. Supreme Court has acknowledged that “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” Research demonstrates that until around the age of 25, our brains continue to mature, tending to cause decreased impulsivity and better judgment as we grow older. The expanded capacity to make better decisions well after the age of 18 helps explain why people under 21 cannot buy alcohol and why it costs much more to rent a car if you are under 25. A jury given the choice between death and life-without-parole very well may have chosen life because of Phillips’s young age.
Phillips’s youth is not the only reason a jury might have chosen life-without-parole if it had the option. The Eighth Amendment also bars the execution of people with intellectual disabilities. In the same way that Phillips doesn’t quite fit into the juvenile box, he also doesn’t quite meet the requirements to be considered intellectually disabled. However, his IQ is, at best, in the low-average range. He failed the first grade. A psychologist described Philips as “a rather simple, emotionally immature, psychologically inadequate person.” A neighbor echoed the same sentiment: “I always felt, I felt like there was some emotional problems over the years, not being a psychiatrist, I don’t know, can’t name them, I can’t label them, I call it 18 going on 12.” Phillips’s father, too, said that his son “acted like he wanted to be an adult but he still was like a child.”
To be clear, Ronald Phillips deserved to be held accountable. While still a teenager, Phillips who had no prior criminal record, sexually assaulted and killed his girlfriend’s three year-old daughter. Nothing can ever excuse such a terrible crime, but our Constitution and laws recognize that some individuals fundamentally lack the moral culpability to be subjected to the ultimate punishment. As jarring as the crime was, jurors need a full picture of the defendant’s life to see if they can get any insight into how such an offense could happen. It is the lawyer’s job to present that story. Here — and in too many cases — the defense team fumbled. It might have helped jurors to put this crime into context if they had heard testimony that Phillips’s father sexually abused and brutally beat him — and his siblings — throughout his childhood beginning when Phillips was just four years old. A few years later, when Phillips was 7, it appears his older cousin also sexually assaulted him. Unfortunately, the lawyers at trial failed to obtain and present most of this powerful mitigating evidence.
One judge who listened to the case, Judge R. Guy Cole (now the chief judge of the U.S. Court of Appeals for the Sixth Circuit) wrote this about Phillips’s case: “The jury that recommended Phillips be sentenced to death, however, heard little evidence about his childhood because his counsel failed to investigate the red flags leading to a large body of mitigating evidence that would have considerably altered the picture of his culpability.” The trial lawyer never even hired a mitigation specialist — the most important step in preparing a defense against the death penalty. The whole mitigation presentation, a proceeding that often lasts days or weeks when done properly, lasted less than a day.
Ronald Phillips’s case is not the exception. Ohio’s next scheduled execution, which is in September, is of Gary Otte, who was 20 years-old at the time of the crime. Otte was mercilessly bullied throughout his childhood, mostly for being, as his sister put it, “a little slower than the other children,” having “a slight speech disorder,” and being “clumsy.” Otte became clinically depressed as a teenager, and tried to commit suicide multiple times. As described in a memorandum from the Ohio clemency board, “by eighth grade he had twice attempted to commit suicide, once with ExtraStrength Tylenol and later by stabbing himself in the wrist with an ink pen.” Otte killed two people during home invasion robberies, which he committed while addicted to and desperately seeking more crack cocaine. Given our recognition that 17 year-olds who have developed normally can never receive the death penalty, it is difficult to understand why Ohio is pushing to kill a “slow,” drug-addicted 20 year-old with severe depression and a history of suicide attempts. The death penalty is often used to kill the most damaged defendants, not the most culpable; and as the scheduled executions of Phillips and Otte illustrate, it pulls in people with severe mental illnesses, traumatic life experiences, and intellectual deficits.
Ohio’s Governor, John Kasich, has the power to stop this onslaught of executions. He should use it. If executing some of the most impaired people among us is not reason enough, Ohio’s death penalty scheme has other fundamental flaws. Consider that Romell Broom, one of the men scheduled for execution, was injected 18 times and laid on a gurney for over two hours in a 2009 botched execution attempt. Moreover, in 2014, during the last execution Ohio carried out, the inmate “gasped, choked, clenched his fists and appeared to struggle against his restraints for about 10 minutes,” according to the Columbus Dispatch. If that were not a serious enough indictment of the execution method, Ohio’s current lethal injection protocol, which the State has never before used, risks future botches. Then consider that Ohio has had nine innocent people exonerated from its death row. (and Tyrone Noling, who is still on the row, continues to assert his innocence with substantial evidenceto support his claim.)
It will not take 27 executions to permanently tarnish Ohio’s reputation. Simply starting this procession will be like severing the brakes on a train.