December 16, 2022
Late on a Sunday evening in April of 2017, Ohio Supreme Court Justice Pat DeWine sent an email to Joe Deters, the long-tenured elected prosecuting attorney in Hamilton County, asking for a favor. “Can you find a spot in your internship program for my son, Matt[?],” the Justice asked. “If you can, I would really appreciate it.”
Within an hour, Deters emailed succinct instructions to his assistant: “Another…for sure.”
And then, as City Beat reported, “Voila! Matt DeWine reported to the prosecutor’s office and his $11-an-hour internship on May 16, according to county personnel records. Eleven days later he was joined by his older brother Richard Michael DeWine, who was starting his third summer internship in the office. Both are grandsons of Ohio Attorney General Mike DeWine.”
Now five years later, it looks like Deters’ generosity will be returned with a seat on the state’s highest court. With Justice Sharon Kennedy replacing the retiring Chief Justice Maureen O’Connor at year’s end, now-Governor Mike DeWine (whose son Pat is still on the court) has a vacancy to fill. On Thursday the Cincinnati Enquirer reported that Deters “is being considered” for that seat, and other local news outlets have gone further, saying it’s a done deal. (DeWine insists that no decision has been made.)
A savvy and well-connected politician, Deters would hardly be the first person to leverage political connections for a coveted judgeship. And it’s possible that DeWine simply thinks that the 65-year-old Deters, who would face mandatory retirement in five years, is the best person for the job. Still, handing someone such immense power—placing the fundamental rights of millions and perhaps the fate of democracy itself in his hands—amid such a public paper trail of personal favors betrays political patronage so overt it would make Roscoe Conkling wonder if maybe this wasn’t the best look.
But aside from appearing less than above-board, adding Deters to the closely-divided Ohio Supreme Court would instantly “drive the Court to the right on criminal legal system issues,” David Singleton, Executive Director of the Ohio Justice & Policy Center told Behind The Bench, noting that Deters is “an outspoken opponent of bail reform” and “a prosecutor who unapologetically supports the death penalty.”
Deters’ impact would be especially large because the retiring O’Connor, though also a Republican, was a critical swing vote who joined with the more liberal justices in a variety of cases, including those involving election and criminal law. Perhaps most famously, her role in blocking Republican efforts to secure power through gerrymandered electoral districts prompted members of her own party to call for her impeachment. But she also joined the 4-3 majority opinion in January holding that courts may not set impossibly high bail amounts just to keep people in jail before trial, invoking both the state and federal prohibitions on excessive bail. If prosecutors and judges believe that someone is too dangerous to be released, the court explained, there is a process to hold them without bail at all. But it is unconstitutional to achieve that result through exorbitant cash bail amounts that only the very wealthy (however dangerous they may be) can pay.
Following Justice DeWine’s fear-stoking dissent (“what the majority does today will make Ohio communities less safe,” DeWine wrote), Deters led the ultimately successful statewide campaign to overturn the decision via ballot measure, arguing that setting bail based on what someone can afford is “unconscionable” and would turn Ohio into a “wasteland of crime.”
Though Hamilton County, which includes Cincinnati, is a relatively blue part of Ohio that Joe Biden won by 16 points, Deters has been its elected prosecutor for a quarter century. He first served from 1992 to 1999, and then began his current tenure in 2005. And as his embrace of cash bail suggests, he hasn’t exactly kept a low-profile or moderated his rhetoric to match the politics of the region.
Deters is an advocate of execution by firing squad and has aggressively pursued the death penalty while his office has been “repeatedly rebuked by the Ohio Supreme Court for misconduct in . . . capital cases,” according to the American Bar Association. He has openly disparaged the rights of people charged with crimes, shames people with a “weekly rap sheet” on Facebook, and regularly echoes the Fox & Friends mantra of bashing criminal justice reform and “liberal cities” like Philadelphia and San Francisco. Put another way, playing a game of “who said it, Joe Deters or Ron DeSantis?” would not be easy.
Last year, Enquirer reporter Dan Horn observed that “no politician in town is more closely identified with the death penalty than Joe Deters, the latest in a long line of Hamilton County prosecutors who have regularly sought capital murder charges.” During his first stint in office, Deters put 20 people on death row. In the time since, Deters has kept Hamilton County a national outlier in its pursuit of death — the county, responsible for 17 of the 126 people currently on Ohio’s death row (second only to Cuyahoga County), ranks 15th nationally for most death sentences, according to a 2020 study, and “remains in the top 2% of counties producing a majority of executions nationally,” according to another study in 2021. The latter study also confirmed that capital punishment in Hamilton County produces the same sort of racial disparities that it does nationwide, with evidence of anti-Black discrimination in charging decisions and sentencing outcomes based on both the race of the victim and the race of the person charged.
Indeed, Deters has faced criticism for racist dog-whistling. In 2015, after a group of young Black men assaulted a white man in Franklin Square, Deters first noted that there was no evidence of a racial motive but then added: “They will hurt you. They will hurt your grandma,” he said. “The root cause of this is there’s no discipline in the homes, they don’t go to school, you know, they live off the government, no personal accountability, and they just beat people up for no reason, and it’s disgusting.” The Enquirer responded with an editorial admonishing Deters for “us[ing] his bully pulpit to feed racial discord in [the] community.”
Deters has also shown indifference to—and has arguably endorsed—prosecutorial misconduct in capital cases. In 2007 the ABA reported that “Joseph T. Deters, Prosecuting Attorney for Hamilton County, has overseen an office which has been repeatedly rebuked by the Ohio Supreme Court for misconduct in over fifteen capital cases,” and yet “as of 2005, no attorney in the Hamilton County Prosecuting Attorney’s Office has been terminated for misconduct.”
More recently, the federal Sixth Circuit Court of Appeals in 2014 overturned a Hamilton County conviction and death sentence because of “egregious,” “flagrant,” and “severe” prosecutorial misconduct that caused “extreme violations” of constitutional rights. Among other constitutional violations, prosecutors failed to disclose “evidence regarding other suspects, some of whom confessed to have committed the crime.” Deters responded by calling the decision “a bunch of bullcrap” and effectively accused defense lawyers of misleading the court, saying that he doesn’t “believe anything that comes out of the public defender’s office.”
With this death penalty record, Singleton said, “there is little hope that [Deters] would fairly evaluate capital cases that come before the court.”
If the guiding principle of Deters’ merciless and sometimes unlawful approach is to steadfastly protect crime victims and their rights, he has not always been consistent. In 2019, Deters said that a sexual assault case was weak because the victim, local defense attorney and law professor Jennifer Kinsley, had gone to her assailant’s apartment to celebrate a legal victory on the night of the alleged rape. The man was an activist and protestor whom Kinsley had successfully defended in a First Amendment case. In the years since Kinsley’s alleged rape in 2012, at least two other women had accused the same man of assault. But in Kinsley’s case, Deters blamed the victim: “She shouldn’t be having parties with her clients,” he said. “She shouldn’t bring alcohol to the party.”
Earlier this year, the State Law Research Initiative published a report detailing how former prosecutors vastly outnumber public defenders and civil rights lawyers on our state supreme courts, and explaining why correcting that imbalance is so important—the professional background of judges “relates directly to the legitimacy of the judiciary and to the content and contours of our most fundamental rights,” we wrote. But of course so too do the personal views and policy records of each judge, and Joe Deters is not just another prosecutor but a distinctly reactionary one, someone who has embraced and advocated for some of the cruelest excesses of Ohio’s, and America’s, criminal legal systems.
Whether it is those views or Deters’ political connections (or both) that have put him on DeWine’s shortlist is impossible to say. But as Timothy Burke, former Chairman of the Hamilton County Democratic Party, told City Beat back in 2017, “it’s convenient for the county prosecutor to have done a favor for a member of the Ohio Supreme Court.”