Originally published in The Appeal on September 15, 2020.
Cincinnati’s top prosector, Joe Deters, has been a driving force for the death penalty in a state that sentences more people to death than nearly any other in the nation. Deters, a Republican, has sent more people to death row than any other prosecutor in Ohio. And Hamilton County, where he has served as prosecuting attorney for more than two decades, is among the 2 percent of counties responsible for a majority of death sentences and executions in the United States.
But zeal for capital punishment has been waning among Ohio conservatives. Last year, Republican Governor Mike DeWine issued a freeze on executions, and this year prominent conservatives endorsed a call to repeal the death penalty.
Now Deters is running for re-election in a race that could go a long way in moving Ohio toward that repeal. But rather than reconsidering his stance, Deters is doubling down. His challenger, Democrat Fanon Rucker—a former judge, prosecutor, and civil rights attorney—has taken the opposite position, promising not to seek the death penalty and to support its abolition.
“I would absolutely support repeal of it because our Supreme Court has identified, and folks across the country have realized, it’s ineffective, inefficient, and certainly there are arguments about the immorality as well,” Rucker told The Appeal: Political Report.
Unseating Deters could bolster advocacy against the death penalty, since pro-death penalty prosecutors and state prosecutor associations have played a powerful role in blocking criminal justice reforms in Ohio and elswhere.
“One reason we’re not seeing more reform is because prosecutors wield tremendous political influence, because many elected officials are fearful if they pass repeals the district attorney will call them soft on crime,” said Hannah Cox, the national manager of Conservatives Concerned About the Death Penalty. “I do think the public is starting to catch up to the idea that [prosecutors] are holding the string.”
Death penalty opponents have raised many objections to capital punishment, including that it’s a failed crime deterrent, that too many innocent people have been sentenced to death, and that people of color are disproportionately sentenced.
In a case study published several years ago, legal researchers found statistically significant evidence that race has influenced the use of capital punishment under Deters’s leadership. Among other things, between 1992 and 2017, the scholars found, a case in Hamilton County with at least one white victim faced odds of being charged with capital murder at more than four times the rate of a similar case with no white victims, and a Black defendant who killed at least one white victim faced higher odds of receiving a death sentence than similarly situated defendants.
Growing criticisms have not deterred Deters, who sought the death penalty as recently as May in a case involving a man accused of deliberately crashing his vehicle into police cruisers and killing one officer. The county prosecutor told a Cincinnati public radio station at the time that his office doesn’t seek the death penalty often, “but when we do, we’re pretty good at it and we’re going to do our best in this case.” Deters did not respond to multiple requests for comment.
Deters, who is Catholic, was not even swayed when, in August 2018, Pope Francis came out against capital punishment in all circumstances. “No matter how serious the crime that has been committed, the death penalty is inadmissible because it is an attack on the inviolability and the dignity of the person,” the pope said.
Deters told a reporter that “the pope is wrong” on capital punishment. At the time Deters was defending the death penalty for Anthony Kirkland, who murdered five women between 1987 and 2009.
“My friends who are priests, they don’t know what we’re dealing with,” Deters told the local ABC affiliate. “We’re dealing with vicious, evil killers. And it is self-defense in my mind for the death penalty, and that’s why we seek it.” He then said if people don’t want the death penalty, then “get rid of it, I don’t care, but I swore to uphold the law and that’s what I’m doing.”
This isn’t Rucker’s first shot at becoming Hamilton County’s top prosecutor; in 2004 he faced off against Deters and lost. But the county, which was once solidly Republican, has been trending blue in recent years and voted for Hillary Clinton over President Trump by ten percentage points in 2016, even as Ohio on the whole has become more conservative. After a moderately successful 2018 midterm cycle, Democrats are eyeing the prosecutor’s office as one of the last remaining GOP bastions in the county.
A change in the office could have an outsize effect on the state level, which has seen major changes around death penalty politics over the last few years.
Ohio’s last execution was in July 2018. In February 2019, DeWine, who had recently taken office, announced he would be halting all executions until the state found a new method that could pass constitutional muster. A month earlier a federal judge had described Ohio’s lethal-injection method as akin to a combination of waterboarding and chemical fire. “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment,” DeWine said.
DeWine has not clarified his views oncapital punishment, though he was a sponsor of the 1981 bill to legalize Ohio’s death penalty. Many have speculated that, unlike Deters, DeWine’s strong Catholic faith has complicated his feelings on the issue.
Following DeWine’s pause on executions, other prominent Republicans started speaking out, including Ohio House Speaker Larry Householder who announced he’d become “less and less supportive” of the death penalty. Householder specifically raised concerns with its cost, and with the challenge of finding a feasible way to do the executions. (Two months ago, Householder was arrested and ousted from government over a $60 million corruption scheme.)
Jessie Frank, a death penalty opponent with the Cincinnati-based Intercommunity Justice and Peace Center, said DeWine’s moratorium has been helpful, but warned that the governor will one day leave office and “it’s important to make sure executions don’t start back up again.” Senate President Larry Obhof, a powerful gatekeeper in the state, remains opposed to the death penalty’s repeal.
There has been growing support for incremental reforms, but even those have been opposed by county prosecutors. Bipartisan legislation to ban the death penalty for people with serious mental illness has been considered by Ohio lawmakers for the last five years, and even passed the state House of Representatives in 2019. But prosecutors have lobbied hard against the legislation, and most recently defeated it in the state Senate. Victor Vigluicci, president of the Ohio Prosecuting Attorneys Association called the legislation “dangerous” and “not necessary to address any actual problems.”
Another major political development came in February, when a new group formed: Ohio Conservatives Concerned About the Death Penalty. The group, which is one of 15 chapters nationwide, rallied over 35 of the state’s conservative leaders, including former Governor Bob Taft, former Attorney General Jim Petro, and former U.S. Representative Pat Tiberi, to endorse the repeal of the death penalty.
“Ohio is really coming from behind, even as of two years ago they weren’t really on the radar for states that might repeal the death penalty,” said Cox, the Conservatives Concerned About the Death Penalty national manager. “Wyoming has come very close in the last year [to repealing] and we’ve repealed the death penalty in New Hampshire and Colorado both in the last two years. I think if you were to see a state like Ohio repeal it, that could really have a domino effect on the region.” Twenty-two states to date have abolished the death penalty.
“Things have shifted in the last two years, now we’re focused fully on repeal,” said Hannah Kubbins, the state director at Ohioans to Stop Executions. Kubbins doesn’t expect much movement on the issue this fall because of the coronavirus pandemic, the lame duck session, and the presidential election. But she says advocates are gearing up to push through a repeal bill in the next legislative session.
Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association declined to comment for this story, but said in February that “we’re disturbed” by discussions of repealing the death penalty. A month earlier Tobin said, “All of the challenges that we see to the death penalty right now will switch to life without parole. And the next thing you know we won’t have life without parole either.”
Kubbins, who emphasized that her nonprofit organization does not endorse candidates, said prosecutors and prosecutor associations “oppose any reform that could reduce their power.” She urged voters to pay attention to their county prosecutor races, and to consider how county resources spent on the death penalty could be redirected toward unsolved crimes.
Rucker told the Political Reporthe would be “very willing to offer my voice of advocacy” for statewide repeal of the death penalty. “Justice demands consistency and it’s not consistent to have such overwhelmingly differing ends of punishment in a system that says it’s about treating all fairly regardless of their background,” he said.
If elected, Rucker has no plans to disassociate from state and national prosecutor organizations, but said his general focus would be on Hamilton County. He’s campaigned on eliminating cash bail for nonviolent offenses, establishing a conviction integrity unit, and creating a re-entry court to help reduce recidivism. Frank, whose nonprofit Intercommunity Justice and Peace Center also doesn’t endorse candidates, said the prosecutor election could have “huge” ramifications for the death penalty.
“I don’t think most people in Hamilton County know much about the death penalty,” said Frank. “And I would say most people definitely don’t know that we are one of the biggest drivers of it.”