Thursday, May 8, 2003

How to decide who lives, dies?

Some debate comparing Ohio's death row inmates

By Liz Sidoti
The Associated Press

COLUMBUS - Richard E. Fox lived a crime-free life before he killed a college student after luring her to a phony job interview. David M. Brewer was a model citizen until he kidnapped and murdered a former fraternity brother's wife.

And both were well-behaved after their convictions.

In both cases, public defenders argued to the Ohio Parole Board that they weren't the "worst of the worst" offenders for whom the death penalty is intended. Based on the board's recommendations, Gov. Bob Taft refused clemency requests. Fox and Brewer were executed.

The cases raise the question of whether the parole board should compare inmates as each clemency request comes before it to determine who on death row are among society's most vile criminals deserving the most severe punishment.

Death penalty experts say that, ideally, the board should look at the offense and the offender when determining who is eligible for a reduced sentence instead of execution. But, they warn, doing that is difficult because the circumstances of each crime and criminal are not easy to compare.

"Asking the board to make a judgment on the 'worst of the worst' is especially compelling because the board looks at all cases that come before it, and not just one case, like a jury or judge does," said Douglas Berman, an Ohio State University law professor who specializes in capital punishment.

"But it's easier to look at how terrible a crime is than it is to compare the mitigating factors in a person's life."

Berman said that is perhaps why the parole board largely has stayed away from determining whether an inmate is among the "worst of the worst."

Instead, in its written recommendations to Taft about whether he should grant clemency, the board has focused on whether inmates have accepted responsibility for their crimes, as well as the circumstances surrounding the offenses.

David Bodiker, the state's public defender, said the board should be looking at the crime and the criminal, and then judging - by comparing to others - who is the worst.

"The board's not looking at the character of the individual, and that is obvious from these two cases," he said.

Bodiker said Fox and Brewer were ideal candidates for clemency because they had admitted guilt and had led upstanding lives before and after their crimes.

"We felt that here are guys who really do not deserve to be executed," Bodiker said.

He said that only a handful of the inmates on death row are among society's worst criminals, either because they have substantial criminal pasts or their conviction was one in a series of violent crimes.

James V. Canepa, a chief deputy attorney general, said the public defenders used the argument that Fox and Brewer weren't the worst killers because they had no other reasons to put forth about why the two deserved clemency.

"You can't fault them," Canepa said of the public defenders. "That's the hand they're dealt with; that's the hand they play."

However, he said, there's no way the board can fairly compare death row inmates to one another.

"The board can't compare offense to offense or offender or offender, because, ultimately, there's too many variables. It's apples and oranges," Canepa said. "The board has to look at each case individually."

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