In January, the new Governor of Ohio, Ted Strickland, granted reprieves in the cases coming up for execution to give himself more time to consider the clemency petitions. As I noted at the time, clemency is a matter that should be considered carefully, and a short extension is in order when necessary for that purpose.
There are news reports today that Gov. Strickland has decided not to commute or further reprieve the first of these sentences, that of Kenneth Biros, whose reprieve expires next Tuesday. Reginald Fields of the Cleveland Plain Dealer reports here. There is no statement on the Governor's web site at this time, however. It would interesting to see his reasoning. In any event, fears that he would misuse the clemency power to effect a de facto repeal of the death penalty appear to be unfounded.
There are generally two valid reasons to commute a death sentence. One is a realistic doubt of the identity of the perpetrator. That is not at issue in this case, according to this AP story. The other reason is that the crime is a clearly mitigated case of the type where the death penalty is rarely imposed, and its imposition represents a clear malfunction of the sentencing process, even when there is no legal reason for a court to reverse. Lest anyone think that Biros is such a case, here is an excerpt from the Sixth Circuit opinion:
An autopsy of [Tami] Engstrom’s body revealed that she suffered ninety-one premortem injuries indicative of a “severe beating” and “an attempt at sexual mutilation” and five stab wounds which were inflicted immediately after Engstom’s death. In addition to these wounds, Engstrom’s head, right breast, and right lower extremity had been severed from her body at some point following her death. Her anus, rectum, urinary bladder, and virtually all of her sexual organs had been removed and were never found. Her gallbladder, the right lobe of her liver, and portions of the bowels were also extracted from her body. The coroner found no evidence that Engstrom had been struck by an automobile as Biros claimed and concluded that Engstrom had died of asphyxia due to strangulation.
Why did the Governor need two months? I don't know, but at least he made the right decision.
Despite the expiration of the reprieve, there is a stay in effect for lethal injection litigation. The Sixth Circuit panel considering these claims found that Cooey's claim was barred by the statute of limitations, as noted here March 2, and Biros's case was transferred to the same panel by this order. The state has asked for the stay to be lifted, and the court ordered a response to be filed yesterday, according to this story in the Plain Dealer.
Ohio's de facto moratorium may be near an end. If the Cloninger and Marchesini studies are correct and moratoria kill innocent people through lost deterrence, it will not be a day too soon. If not, and Biros is executed simply because he deserves to be, it is still not a day too soon.
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