Kentucky

Kentucky

As Council Reviews Kentucky's Criminal Justice Policies, Former Prosecutors, Judge Urge Repeal of Death Penalty

Kentucky's recently-formed Criminal Justice Policy Assessment Council will be examining the state's criminal code, and is expected to examine a wide range of criminal justice issues—including the death penalty—in the first major overhaul of Kentucky's criminal code since the 1970s. The council, which was formed by Gov. Matt Bevin, includes legislators, judges, criminal justice experts, and religious leaders, charged with producing a list of recommendations for Kentucky lawmakers. One council member, Bishop William Medley, of the Catholic Diocese of Owensboro, has expressed moral opposition to the death penalty, and received backing for repealing the punishment from some in the courts and the prosecution bar. Circuit Judge Jay Wethington, a former prosecutor who prosecuted death penalty cases told the Messenger-Inquirer that he was "going to side with ... Bishop Medley" on that issue, but for different reasons. "We need to get rid of the death penalty," he said. "We spend too much money for the results." Meanwhile, three former Kentucky prosecutors wrote an op-ed for Louisville's Courier-Journal urging abolition of the death penalty. Joseph Gutmann (pictured), Stephen Ryan, and J. Stewart Schneider discussed the results of a recent University of Kentucky poll, which found that a large majority (72.4%) of Kentuckians support a moratorium on executions. They noted that support for the death penalty has risen since 2011, when the American Bar Association released a study that found serious problems with Kentucky's application of the death penalty. At that point, 62% of Kentuckians favored a suspension of executions. They conclude, "These poll results make it clear that Kentuckians’ concern about the fairness of the state’s criminal justice system is growing. As we have written before, replacing the death penalty with life without parole is the best approach for our state – protecting public safety, providing justice to the families of victims, removing the possibility that an innocent person will be executed and saving limited tax dollars."

Support for the Death Penalty by Republican Legislators No Longer a Sure Thing

One year after the Nebraska legislature voted to repeal the death penalty and overrode a gubernatorial veto of that measure, actions in legislatures across the country suggest that the state's efforts signalled a growing movement against the death penalty by conservative legislators and that support for the death penalty among Republican legislators is no longer a given. Reporting in The Washington Post, Amber Phillips writes that Republican legislators in ten states sponsored or co-sponsored legislation to repeal capital punishment during the current legislative sessions. She reports that although these repeal bills have not become law, they have made unprecedented progress in several states. In Utah, a repeal bill sponsored by Sen. Stephen Urquhart (pictured)—a former death penalty proponent who supported the state's firing squad law—came closest, winning approval in the state Senate and in a House committee. Missouri's bill saw floor debate in the Senate, and Kentucky's received a committee hearing for the first time in 40 years. An effort to return death penalty support to the platform of the Kansas Republican Party failed by a vote of 90-75, and the Kansas College Republicans passed a resolution calling for the abolition of the death penalty, highlighting a generational divide on the issue. Dalton Glasscock, former president of Kansas College Republicans, said, "My generation is looking for consistency on issues. I believe if we say we're pro-life, we need to be truly pro-life, from conception to death." The National Association of Evangelicals also changed their stance on the issue, acknowledging "a growing number of evangelicals," who now call for abolition. Though a majority of Republicans still support the death penalty, Phillips writes that "it's notable that a year after we wondered whether Nebraska was an anomaly or the start of a trend, there's plenty of evidence to suggest that conservative opposition to the death penalty may indeed be a trend -- a small but growing one."

EDITORIALS: Kentucky Newspaper Reverses Position on the Death Penalty

The Lexington Herald-Leader, Kentucky's second-largest newspaper, announced it was ending its long-held support for the death penalty, and now believes the state legislature should abolish capital punishment. Describing its previous position as "keep it but fix it," the editors stated, "we must now concede that the death penalty is not going to be fixed and, in fact, probably cannot be fixed at any defensible cost to taxpayers." Citing the 2011 American Bar Association assessment of Kentucky's death penalty, the Herald-Leader said the system was "rife with injustices and the potential for error." Among the reasons cited in the paper's editorial for the changing its position was the negative effects of the death penalty on victims' families and correctional officers. It quoted Dr. Allen Ault, who oversaw executions in Georgia, and who said, "I do not know one [correctional officer] who has not experienced a negative impact," noting an increased risk of depression, substance abuse, and suicide.

NEW VOICES: Kentucky Judge Calls for Legislation to End the Death Penalty

Speaking from the bench at a hearing in a Kentucky capital case, Fayette Circuit Judge Pamela Goodwine said, "Something needs to be done legislatively in Kentucky and in every state in the U.S. I think the death penalty probably should not be a penalty, ever." Despite her personal views, Goodwine ruled that the death penalty could be sought against a man accused of participating in a murder, even though he did not shoot the victim. "As the law in Kentucky stands right now ... he's death-eligible as a conspirator in this case," Goodwine said. "That's the law as it stands right now. I, as a trial judge, have to follow that law whether I agree with it or not. If I had my druthers, there would be no death penalty in Kentucky." She added that she was frustrated with the time and expense of capital cases and the emotional toll they take on everyone involved. 

NEW VOICES: Former Prosecutors Call for Repeal of Kentucky's Death Penalty

In a recent op-ed in the Louisville Courier-Journal, three former Kentucky prosecutors advocated for repeal of the death penalty. Citing the findings of a study by the American Bar Association on Kentucky's law, Joseph P. Gutmann (pictured), Stephen Ryan, and J. Stewart Schneider said, "[T]he death penalty is broken beyond repair in Kentucky." Among the report's findings were a reversal rate of 60% in death penalty cases, a lack of standards for eyewitness identification and interrogations, and public defender caseloads that far exceed the national average, despite pay that is 31% lower than surrounding states. A poll taken around the time of the report found 62% of Kentucky voters in support of a moratorium on executions. The former prosecutors recommended repeal: "Without question, this is a difficult issue, and efforts to 'fix' the death penalty in Kentucky will be costly and time-consuming. But there is one approach that is simpler and less expensive: Abolish the death penalty and replace it with life in prison without parole for convicted offenders....Replacing [the death penalty] with life without parole is the best approach for our state — removing the possibility that an innocent person will be executed, saving limited tax dollars, protecting public safety and providing certainty and justice to the families of victims." Read the op-ed below.

Kentucky Holds First Public Hearing on Future of Death Penalty

A joint committee of 32 senators and representatives held the first public hearing on Kentucky's death penalty since capital punishment was reinstated there in 1975. The hearing was prompted by a death penalty repeal bill proposed by Republican Rep. David Floyd, who said the death penalty should be ended because of the cost and time it takes for cases to complete the appeals process. He was also concerned about the number of death penalty cases that have been overturned. A 2011 study by the American Bar Association found that 64% of the death sentences they examined were later overturned or commuted. Rep. Floyd said, "Conservatives in general have less trust in government. Why would we trust them in a matter of life and death? If people are given the opportunity to consider all those things, they may come to the same conclusion, that life without parole is a better option for Kentucky." Kentucky has carried out three executions since reinstatement, but executions are currently on hold while a judge reviews the state's lethal injection protocol.

Kentucky Lethal Injection Protocol Under Scrutiny

Executions have been on hold in Kentucky since 2010, when Franklin Circuit Judge Philip Shepherd began a review of the state's lethal injection protocol. The state revised its protocol in 2012 to call for a one-drug method, with a two-drug method as a backup if specific drugs were not available. Now, that new protocol is also being scrutinized because it calls for the same drugs that caused the botched execution of Dennis McGuire in Ohio. Corrections officials say they don't know if any lethal injection drugs would be available, because the Department of Corrections is currently, "prohibited from taking any steps regarding execution -- and this would include the purchase of the drugs, so we don't know if they are available because we haven't tried to purchase." David Barron, an attorney representing five inmates on death row, called the Ohio execution, "an utter disaster," and said that Kentucky's plan to use a smaller dose is, "not enough to prevent the condemned person from feeling pain." Earlier this year, Republican state Representative David Floyd proposed a bill to repeal the death penalty in Kentucky, saying "The government needs to be infallible when it comes to killing people and it's not," adding, "The alternative of life in prison is much more cost effective."

Supreme Court: Kentucky Death Sentence May Be Flawed, But Not 'Unreasonable'

On April 23 the U.S. Supreme Court reinstated the death sentence of Kentucky inmate Robert Woodall, reversing an earlier ruling by the U.S. Court of Appeals for the Sixth Circuit. At Woodall's trial, his attorney asked the judge to instruct the jury not to draw any negative inference from the fact that Woodall had not testified in the sentencing phase. The judge refused to give the instruction. The 6th Circuit held that the failure to instruct the jury was a violation of Woodall's right to remain silent. Justice Antonin Scalia, writing for the Court in White v. Woodall, did not say the Kentucky judge acted properly, but only that federal courts must give exceptional deference to state courts, only overturning them when they act "unreasonably." In a dissent joined by two other Justices, Justice Stephen Breyer wrote that "The 'normal rule' is that Fifth Amendment protections (about the right to remain silent) apply during trial and sentencing."

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