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Study Shows Elected Supreme Court Justices Tougher On Death Penalty Cases


A recent study shows in the 15 states that elect supreme court justices - including Ohio - death sentences are reversed 11 percent of the time. In the other states, death penalty appeals are reversed in 26 percent of cases. Ohio Public Radio's Karen Kasler reports.

The study from Reuters looked at 37 states that heard death penalty cases over the last 15 years. And Ohio was singled out as one of the 15 states with justices who are elected by voters – and in Ohio, those campaigns can be costly.  
The conservative PAC American Freedom Builders spent a lot of money for Republican Ohio Supreme Court Justice Judi French, one of two justices up for re-election. And the month one particular American Freedom Builders ad for French aired, French had agreed with the majority in a close 4-3 vote to uphold the death penalty for Ashford Thompson of Twinsburg, convicted of killing a police officer.  French went on to win re-election to the bench.  
That’s not unusual, according to the Reuters study. In those 15 states that elect high court justices, death sentences are reversed 11% of the time. In the other states, death penalty appeals are reversed more than twice as often - in 26% of cases. And the Reuters report notes other academic research has shown similar results – that judges who have to stand for election are tougher on death penalty cases than those who don’t.   
A “tough on crime” stance is often used in ads, which are becoming more typical in judicial races, especially in states like Ohio, where polls show capital punishment has public support.  The Brennan Center for Justice at the New York University School of Law reports that spending on ads in state Supreme Court races hit $13.8 million in the 2014 election cycle – up by more than $1.5 million from 2012. In Ohio, three of the four candidates spent more than $827,000, and the Ohio Republican Party spent more than $100,000. And the Brennan Center reports that American Freedom Builders spent nearly $600,000.  
The rising role of money in judicial races so concerned the late Tom Moyer that he spent his final years as Chief Justice of the Ohio Supreme Court speaking out against it. “I don’t like it. I don’t like it at all,” he told the Columbus Metropolitan Club in 2009. “I’ve campaigned four times statewide, and I don’t like it. It is not the way to select the persons who are making, seven lawyers making these very, very important decisions based upon principles of impartiality and fairness.”  
Moyer, who was a Republican, suggested Ohio go to a system of merit selection, where qualified candidates for justice are screened and appointed and then go on the ballot for a retention vote two years later, and then at regular intervals.  Rep. Mike Curtin (D-Columbus) is a critic of the role money plays in politics and a historian of Ohio politics. Curtin supports the idea of merit selection – especially in light of this study about the death penalty and elected judges. But he noted Ohioans have had a chance to go to merit selection, in 1938 and 1987. “And in both instances, merit selection plans were voted down by about two-thirds of the electorate,” Curtin said. “The prevailing opinion in the General Assembly is that’s pretty much where the public still is. So for those reasons, I’ve not seen any appetite anywhere to get back into this subject area.”  
Conservative Sen. Bill Seitz (R-Cincinnati) disagrees with Curtin on merit selection, but agreed that it’s not something the state will be considering anytime soon – if ever. “We’ve barked up that tree a number of times – I’ve been opposed to it every time. There’s no public sentiment for that,” Seitz said. “Merit selection of judges simply substitutes for a popular election the selection of certain people by backroom deals and elites. So merit selection of judges is misnamed. That’s not going to happen in Ohio.”  
But Curtin and Seitz do agree that there are reforms that state lawmakers could make to capital punishment in Ohio. Seitz has sponsored bills to make some changes in the death penalty – including one to ban execution of the seriously mentally ill. And once again, Democrats are pushing a bill to abolish the death penalty entirely in Ohio. But this time, a Republican – Rep. Niraj Antani (R-Miami Township) – has signed on as a cosponsor.  

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