Alongside the family members of both murder victims and death row exonerees, Pfeifer testified before state legislators Wednesday in favor of House Bill 160, which would abolish the death penalty in Ohio. Afterward, Pfeifer told reporters at the Ohio Statehouse that Ohio’s death penalty policy no longer serves the state, and that capital punishment should be abolished.

Pfeifer noted that, while he has a duty to follow the law, he is also obligated to “step forward and advocate for changes that would lead to improvement.”

“I think abolishing the death penalty would be a needed improvement,” Pfeifer said. “It will happen. Will it be today, tomorrow, in this session of the General Assembly? More problematic. … but the day will come when Ohio no longer has a death penalty.”

Pfeifer supported his declaration (an especially bold one, as Ohio has recently pioneered a new, more “humane” single-drug method for lethal injection) by pointing to a national trend away from capital punishment, such as the U.S. Supreme Court’s prohibition on executing the mentally retarded.

“I think the next step will probably be taking a look at those who had a serious mental illness at the time they committed the crime,” he said, offering as example a recent and grisly case in which the murderer was caught after confessing the crime to a priest. In doing so, the deranged man demonstrated that he understood what he had done was wrong, which automatically made him eligible for the death penalty.

Pfeifer also opined that the electric chair was a preferable method of execution, if its value as a deterrent were to be taken seriously.

“If there’s any argument for it as a deterrent, the more unpleasant, the more unspeakable the method of execution, the more likely it would be to be a deterrent,” he said of the electric chair. “But, if you look at the data from states that don’t have [the death penalty], you see roughly the same number of murders, aggravated murders, so it’s impossible to make a case that the death penalty deters anyone.”

When asked whether he regretted his role in the death penalty’s restoration, Pfeifer said he was mostly just surprised at the way the Ohio Supreme Court had broadened its reach.

“’Proper calculation and design’ [premeditation] is about a millisecond, and when we put it in, we were [targeting] people who planned a murder,” he said.  “That’s no longer the case, and that’s the result of a number of Supreme Court decisions, many of which were made before I even arrived at the Court.

“We clearly meant to get the garden-variety domestic dispute, where murder ends up being the outcome, out of the death penalty,” he continued.  “Some of my colleagues say, ‘You couldn’t have meant that,’ I think they view it as a harsh view toward women, but that is in fact what we were trying to do then,” he said, adding that the definition of kidnapping, which can be used by a prosecutor to qualify a defendant for the death penalty, had been greatly expanded, as well.

“We have a number of cases where, if you point a gun at a person for a few minutes, you are now guilty of kidnapping,” he said.

While not part of his testimony, Pfeifer added that citizens would want to move away from the death penalty as they realize what it means culturally.

“We don’t find ourselves in great company when we look at the countries that still use the death penalty,” he said.  “I think we’re seventh in the world. We follow China, Saudi Arabia, Iran. … That’s the kind of company we’re keeping with the heavy use of the death penalty.  And I think that’s uncomfortable to most citizens, as they begin to recognize that most of what we consider ‘developed countries’ don’t use the death penalty at all.”

Watch Pfeifer talk to reporters:

(Photo: Flickr Getty Images/Dave Delay)

Tennessee law precludes executing people who are intellectually disabled, and, thanks to Monday’s ruling, an IQ a score of 70 or below is no longer a stand-alone indicator. Now mental health expert testimony will be considered in the ruling.

According to the Memphis Daily News, the decision is based on the appeal of death row inmate Michael Angelo Coleman (PDF), who was convicted for robbing and murdering Leon Watson in Memphis in 1979. Coleman was convicted of six prior violent felonies, and though he met the IQ standard for imposing the death penalty, two experts testified he was intellectually disabled, according to the appeal.

“While a person’s I.Q. is customarily obtained using standardized intelligence tests … the statute does not provide clear direction regarding how a person’s I.Q. should be determined and does not specify any particular test or testing method that should be used,” Justice William C. Koch, Jr. wrote for the Supreme Court. “Ascertaining a person’s IQ is not a matter within the common knowledge of laypersons. Expert testimony in some form will generally be required to assist the trial court in determining whether a criminal defendant is a person with intellectual disability.”

The court found that in Coleman’s case, the lower courts incorrectly treated his intellectual disability and mental illness as two separate causes of his adaptive limitations.

The result is that Maj. Nidal Hasan, the Army psychiatrist who allegedly gunned down 13 people at the military base in Texas last week, is unlikely to get the death penalty. Meanwhile, John Muhammad, the sniper who shot dead at least 10 people in Virginia in 2002, was executed for his crimes last night.

In fact, there hasn’t been a military execution since 1961, The Associated Press reports today. Although there have been death sentences, an execution order signed by President George W. Bush last year for a former Army cook convicted of multiple rapes and murders in the 1980s has been stayed. And five men sentenced to capital punishment still sit on death row in Fort Leavenworth, Kans.

The disparity in penalties between military and civilian courts has a parallel in the military commission system, which likewise has so far meted out shorter sentences to the few convicted terrorists it’s tried than the civilian one has.

Whether the perpetrator of last week’s mass murder will be spared execution remains to be seen. But lawmakers clamoring for military trials for the five 9/11 suspects as a way to look extra tough on terrorism ought to be careful what they wish for.

Davis, as I’ve explained before, has been on death row in Georgia since 1989, when he was found guilty of killing an off-duty police officer based on the testimony of nine eyewitnesses. There was no physical evidence directly linking him to the crime, however,  and seven of the nine witnesses have since recanted their earlier statements. Another man has also boasted of committing the crime and new witnesses have said that other man was the real perpetrator. Some of the original witnesses claim they were pressured by police to identify Davis.

Despite multiple hearings at various state and federal courts on the issue, every court until yesterday had decided that the new evidence should not be considered.

Those judges all apparently agreed with Justice Antonin Scalia’s dissent yesterday, joined by Justice Clarence Thomas, in which he called the new hearing “a fool’s errand” and said: “This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

While Ashby Jones of zyhe Wall Street Journal’s Law Blog today calls that a “fascinating question,” it’s a question that only a lawyer can love.

In fact, even Chief Justice William H. Rehnquist, no flaming liberal, wrote in 1993 that “we may assume … that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief,” as Adam Liptak points out today in The New York Times.

Fortunately, a majority of justices on Monday decided that the possibility of “actual innocence” as demonstrated by the facts of Davis’s case was sufficient to require the federal judge to at least hear the evidence. 

“The Court’s decision means that we may finally know whether Georgia sought to execute an innocent man and allowed the real perpetrator to escape,” said Virginia Sloan, president of the Constitution Project, which submitted a brief on Davis’s behalf.

The story appears at Politico:

While state attorney general in 1992, Burris aggressively sought the death penalty for Rolando Cruz, who twice was convicted of raping and murdering a 10-year-old girl in the Chicago suburb of Naperville. The crime took place in 1983.

But by 1992, another man had confessed to the crime, and Burris’ own deputy attorney general was pleading with Burris to drop the case, then on appeal before the Illinois Supreme Court.

Burris refused. He was running for governor.

According to the article, Cruz spent 11 years on death row before being set free in 1995 after being acquitted in a third trial. A prosecutor and a detective resigned in protest of the prosecutorial misconduct they witnessed while working on the case.

Burris’ bid for the Senate seat may have been doomed from the beginning, as Senate Majority Leader Harry Reid (D-Nev.) and Obama have both voiced opposition to the pick, but the Cruz case will likely be another nail in the coffin.