When Justice Bill O’Neill joined the Court January 2, 2013, he wasted no time in making clear his opposition to the death penalty. On January 25, 2013, O’Neill dissented from the order of execution in the case of State v. Wogenstahl, 2013-Ohio-164. He wrote,
“While I recognize that capital punishment is the law of the land, I cannot participate in what I consider to be a violation of the Constitution I have sworn to uphold. I must respectfully dissent.”
About a month later, he dissented, without opinion, from the order of execution in State v. Van Hook.
O’Neill did not participate in the merits of either the Wogenstahl or the Van Hook cases. But he is now dissenting in direct appeal death penalty cases on which he is sitting.
On March 20, 2014, in State v. Maxwell, 2014-Ohio-1019, he joined Justice Pfeifer’s dissent from the imposition of the death penalty.
On April 22, 2014, in State v. Davis, 2014-Ohio-1615, the Court affirmed the conviction and death sentence of a man who shot and killed his ex-girlfriend in 1983. O’Neill dissented from the imposition of the death sentence in that case for the same reasons he dissented in Wogenstahl–he believes capital punishment is cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and Article I, Section 9 of the Ohio Constitution.
And twice this week, he has dissented again.
On May 13, 2014, in State v. Kirkland,2014-Ohio-1966, the Court affirmed the conviction and death sentence of a man who murdered and then burned the bodies of two women and two teenage girls in Hamilton County between 2006 and 2009.
Again, O’Neill dissented from the death sentence. He wrote,
“ [A]s a justice and as a citizen, it is truly difficult in this case to separate personal outrage from clinical constitutional analysis. The latter, however, is required by my oath of office. Anthony Kirkland’s actions were monstrous—he must be punished and society must be vigilantly protected from him. He deserves nothing less than life in prison without possibility of release, and the horror of his crimes certainly makes it easy to suggest that death is the only fit punishment for him. But because the death penalty “is inherently both cruel and unusual,” State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900, ¶ 2 (O’Neill, J., dissenting), I cannot accept that easy suggestion.”
And again, the next day, on May 14, 2014, in State v. Mammone, 2014-Ohio-1942, in a case in which the Court upheld the convictions and death sentence of a Canton man for stabbing and killing his two young children and murdering his ex-mother-in-law he wrote,
“Once again, a case has come before us that challenges my resolve to stay the course regarding the unconstitutionality of the death penalty in Ohio. It is incomprehensible how someone could murder his own children while they are helplessly strapped into their car seats. Five-year-old Macy and three-year-old James were stabbed in their throats by their father for absolutely no reason other than to make their mother suffer.
“This case comes on the heels of State v. Kirkland, ___ Ohio St.3d___, 2014-Ohio-1966, ___ N.E.3d ___, and State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900, two other capital cases involving atrocious monsters who took the lives of innocent children in gruesome acts of violence.
“There is no doubt that these three murderers should be dealt with in the strongest manner permitted under the Constitution. I agree with the majority in this case that Mammone’s convictions must stand. The state proved its case, and it has demonstrated that he is guilty of multiple murders, beyond a reasonable doubt. However, as evil as Mammone is, I still must conclude that life in prison without the possibility of ever being released is the appropriate sentence, for the reasons I offered in my dissent in Wogenstahl. See id. at ¶ 1-9 (O’Neill, J., dissenting). The death penalty is both cruel and unusual and I refuse to ratify the taking of any human life in the name of retribution, deterrence, or punishment. We as a society live by our Constitutions and by a moral code that clearly is not subscribed to by this defendant. On a moral level, I simply cannot countenance the concept of lowering 11 million Ohioans to Mr. Mammone’s level of depravity.
“Accordingly, I concur in affirming the convictions and dissent on the imposition of the death penalty.”
Interestingly, it has been Justice Pfeifer who put himself in the midst of the death penalty controversy when on January 18, 2011, at his final swearing-in ceremony (he will be too old to run again), Pfeifer denounced the death penalty, urged the legislature to get rid of it, and urged the governor to commute all existing sentences to life without the possibility of parole. Because of these remarks, the prosecution tried, but failed, to have Pfeifer recused from the death penalty case of State v. White.
Unlike O’Neill, Pfeifer hasn’t taken a per se anti-death penalty approach to appeals in which this has been at issue, and has said as much. Pfeifer voted with the majority in upholding the death penalty in Wogenstahl and Van Hook, and due to the recusal of Chief Justice O’Connor, in December of 2011, Pfeifer signed the order of execution in State v. Phillips. And Pfeifer wrote the majority opinion in State v. Davis, and joined the majority in State v. Mammone. But he did dissent in State v. White and State v. Maxwell.
This issue has percolated to the forefront again, because the task force commissioned by Chief Justice O’Connor in 2011 to review the administration of the death penalty—but not its appropriateness—has now completed its work. Some think it went beyond its charge, and has a decidedly anti-death penalty bent. Read more about that here. I wouldn’t be surprised to see references to this by Justice O’Neill in future death penalty dissents.