Ohio’s death penalty system has been in a kind of limbo since 2018. The state can’t get the drugs needed to administer lethal injections, so executions have been put on hold and inmates on death row face indefinite delays.
Even adding these complications to the already lengthy and exorbitant appeals process, the death penalty still remains a rhetorical attraction for some GOP officials.
Earlier this year, two lawmakers proposed a workaround to resume executions. State Reps. Brian Stewart, R-Ashville, and Phil Plummer, R-Dayton, introduced a bill to allow executions by nitrogen hypoxia in addition to the existing lethal injection protocol. Attorney General Dave Yost, who is already preparing the groundwork for a 2026 gubernatorial bid, has embraced the idea and testified in support of it last May.
“This bill would end the stalemate and return Ohio’s sovereign power to action,” Yost insisted.
The timing of this pressure, as voters prepare for an significant election, may not be a coincidence. up-to-date report from the Death Penalty Information Center shows how the death penalty intersects with electoral politics and how the demands of political campaigns have led some officials to take a more aggressive stance.
Robin Maher helped write the report and runs a nonprofit that monitors the exploit of the death penalty but takes no position for or against it.
“We are unique in the way we select key decision-makers in our death penalty system, and we wanted to highlight that the electoral process introduces elements of unpredictability and unfairness into an already flawed death penalty system.”
State Supreme Courts
Despite efforts to ensure that the death penalty is applied consistently, the structure of the U.S. judicial system makes it arduous to insulate these decisions from political considerations. Unlike any other country in the world, voters in most U.S. jurisdictions elect their prosecutors. Similarly, most U.S. judges are either elected to the bench or must be elected to keep their positions.
“In a system where voters have few clear measures of job performance beyond convictions and sentences,” the report says, “many prosecutors naturally do what they think will help them keep their jobs — a mandate that can lead to arbitrary outcomes and injustice.”
As for prosecutors, they note that studies vary on the impact of elections on sentencing, but none of the conclusions are great. On the one hand, at least one study has found that sentence lengths escalate during election years. On the other hand, studies have found that sentences decrease as prosecutors bring more cases to court to improve conviction rates. In any other year, those cases likely would have been settled by plea bargain.
The study focused on criminal cases in Ohio, North Carolina and Georgia, noting that all three states have similar populations, political views and electoral processes for the state supreme court. The authors added that the three states have convicted and executed similar numbers of defendants since the death penalty was reauthorized.
The analysis found that state supreme courts very often sided with prosecutors when considering whether to affirm or overturn death sentences. But even after taking into account the number of cases that came up, there was a statistically significant correlation between court decisions and election years. In non-election years, the court affirmed death sentences 70.8 percent of the time. In election years, that rate rose to 81 percent.
However, Maher explained, “the most important finding that stood out to us was that supreme courts confirmed twice as many death sentences in election years as in non-election years.”
This means that in 34 of the 51 cases, courts upheld the death sentence when at least one of the sitting judges was preparing to appear before voters.
Focusing on Ohio, the study highlighted a 2014 case in which the state Supreme Court upheld the death sentence of Ashford Thompson just six days before the Ohio general election. Two incumbent justices were up for reelection, including former Justice Judith French, who wrote the majority opinion. The study’s authors note that campaign ads from that year emphasized French’s toughness and her vote to uphold the death sentence in the previous case.
But the study also noted an example of a court that appears to be using the electoral calendar to insulate itself from the political influence of death penalty cases. The so-called “lame duck” session in the two months immediately following the general election produced a “disproportionate” number of cases. That period accounts for about 8% of what the authors examined, but the court issued 19% of its rulings in death penalty cases during that time frame.
Governors and grace
Beyond courts and prosecutors, the governor plays a significant role in applying the death penalty. In most cases, the governor’s pardon power is the final recourse before an execution. But here, too, researchers found that electoral politics played a significant role.
To review the clemency decisions, the center went back to 1977, the year after the U.S. Supreme Court allowed the death penalty to resume. The authors did not include a blanket pardon that former Illinois Gov. George Ryan granted to 167 people when he left office.
They found that the majority of pardons (56.2%), whether for individuals or diminutive groups of prisoners, occurred when the governor was not seeking reelection. That percentage rose even more (63.4%) when the governor’s decision was not dependent on an outside body, such as the parole board.
Limiting their analysis to individual pardon cases, the authors found that governors with the sole authority to act almost always (84.6%) did so when they did not have to answer to voters.
They note that most pardon decisions are made in December and January — the two months immediately after the election and just before the end of the term.
Public opinion
Despite the apparent influence that capital punishment and electoral politics have on each other, the center noted that public opinion appears to be shifting away from the death penalty. The study notes that a Gallup poll last year showed support for the death penalty had fallen to its lowest level in more than 50 years.
“Elected officials are taking note of how society’s attitudes toward the death penalty are changing,” the report reads.
The report highlighted Matthew Ahn’s failed attempt to challenge Cuyahoga County Prosecutor Michael O’Malley earlier this year. Ahn was motivated to run in part by the county’s history of prosecuting criminal cases. From 2018 to 2021, as he noted on his campaign website, the county shared the lead in the nation’s most death penalty convictions. During the primary, he pledged not to seek the death penalty if elected.
Ultimately, Ahn failed, but Maher noted that 10 or 20 years ago, elected officials “couldn’t imagine opposing the death penalty, planning to restrict or ban it, or even being critical of it.”
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