I've judged, prosecuted death penalty cases. Only way to restore fairness is to repeal it

James Brogan
·3 min read
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Retired Judge James Brogan began his legal career in 1967 as an Assistant Prosecuting Attorney in Montgomery County. He was elected in 1980 and served five terms on the Ohio Second District Court of Appeals before retiring in 2011.

My involvement with the death penalty runs deep.

I dealt with capital punishment cases as a prosecutor and judge in Montgomery County.

In 2011, I was appointed by the then-chief justice of the Ohio Supreme Court to serve as chairman of the Joint Task Force on the Administration of Ohio’s Death Penalty.

I do not oppose the death penalty in concept, but because it fails as an effective public policy, I support current legislation to repeal Ohio’s capital punishment statute.

When Ohio reinstituted the death penalty in the late 1990s, both the electric chair - 'Old Sparky" - and a bed for lethal injection were available in the death chamber at the Southern Ohio Correctional Facility outside of Lucasville. Now both methods have been ruled out, leaving state policymakers struggling to come up with an alternative.
When Ohio reinstituted the death penalty in the late 1990s, both the electric chair - 'Old Sparky" - and a bed for lethal injection were available in the death chamber at the Southern Ohio Correctional Facility outside of Lucasville. Now both methods have been ruled out, leaving state policymakers struggling to come up with an alternative.

More: I’ve seen evil inflicted on the innocent with no remorse. Vilest killers must be killed.

The Task Force grew out of a 2007 American Bar Association study of the causes of wrongful convictions. Ohio currently accounts for 11 of the 195 death row inmates who have been legally exonerated since 1973.

Ohio failed to meet 93% of the bar association's standards for fairness and accuracy in a capital punishment system. Our charge was to explore ways to reform and correct Ohio’s capital punishment processes. In 2014, our final report proposed 56 specific corrections to problems we identified.

What happened with our recommendations?

The Ohio Judicial Conference has addressed many of the procedural changes we suggested, but the Ohio General Assembly has done very little to address the recommendations which require implementation by legislation.

As a whole, the Task Force report has never been formally discussed in any subsequent General Assembly, however, I am grateful that one of our most substantive recommendations was enacted.

Retired Judge James A. Brogan
Retired Judge James A. Brogan

In 2021 a narrowly crafted bill disallowed the execution of defendants with severe mental illness at the time of the crime.

The Ohio Prosecuting Attorneys Association is vehemently opposing the death penalty repeal legislation, suggesting the death penalty might instead be fixed. The good news here is that the association admits there are problems.

From the archives: Death row inmate to now serve life in prison for 2001 murders in Reynoldsburg

The late Terry Collins oversaw 33 executions as director of the Ohio Department of Correction and Rehabilitation. He called the severe mental illness prohibition a “no brainer,” saying that nothing should stand in the way of that particular reform. But because of vehement opposition by the Ohio Prosecuting Attorneys Association, it took six years – three General Assemblies – to pass the severe mental illness bill and have it signed into law.

Another recommendation that went nowhere was our call to look into the needs of murder victim families and the services available to them in Ohio.

A bill passed in the lame duck session in 2014 established a joint committee of the legislature, which took nearly a year to hold its first meeting. They held a series of hearings, but never issued a report or sought to implement any changes.

That is why I am heartened that current legislation diverts funds from our capital punishment system into improving services for Ohio’s co-victim community.

How many executions does Ohio have planned?

Ohio currently has 31 executions scheduled over the next several years, but none have taken place under Gov. Mike DeWine’s consistently pro-life leadership.

I wrote to DeWine in January, 2018, just after he took office, urging him to declare that no executions would take place until the Task Force reforms are implemented. I urged the governor to adopt a policy that no Ohioan be executed if any substantial reform recommendation would have precluded a death sentence in the first place.

The execution pending at that time was of Warren Henness, a Franklin County case. At least 30 of the Task Force recommendations would have applied in his case. Had they been in place, Henness would not have faced the death penalty. I suspect most of the people with pending execution dates would have similar concerns.

I urge the Ohio General Assembly to act now to restore fairness and integrity to Ohio’s criminal justice system by repealing Ohio’s death penalty.

The attempts to fix the system have failed – it is time to end it.

Retired Judge James Brogan began his legal career in 1967 as an Assistant Prosecuting Attorney in Montgomery County. He was elected in 1980 and served five terms on the Ohio Second District Court of Appeals before retiring in 2011.

This article originally appeared on The Columbus Dispatch: Why retired Ohio judge say death penalty is unjust, must end