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 might 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; those enacted by
Florida, Georgia and Texas ultimately met the court's threshold for
constitutionality. Other states had to follow those models to have their laws
upheld. Ohio's 1st attempt, in 1974, was found unconstitutional, but the 2nd
try, when Pfeifer was chairman of the Senate Judiciary Committee, was enacted
in 1981 and never successfully has been challenged. Lawmakers pledged at the
time to draft a law reserved for the most heinous murders.
At least 2 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 temporarily are 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, always has charted his own course on the court. For
years he was a member of a foursome -- 2 Democrats and 2 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 2 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. Ted Strickland agreed and in 2010 changed Nields' sentence to
life without parole.
In January 2011, Pfeifer made his strongest statements to date, calling on Gov.
John 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
Since 2001, Pfeifer has written the majority opinion upholding death sentences
in 5 cases, dissented in two others and upheld death sentences while
disagreeing on aspects of the decision in 4 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 1st 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
Pfeifer's experience as a death penalty supporter-turned-opponent is not
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. 30 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.
(source: Coshocton Tribune)