Alarming systemic deficiencies in Kentucky’s death penalty process must be corrected
We write to alert the public about the contents of a comprehensive, authoritative report issued in 2011 that has been largely ignored by the leaders of the legislative, judicial and executive branches of our state government.
The 438-page report is entitled “Evaluating Fairness and Accuracy in State Death Penalty Systems: Kentucky Assessment Report.” It was authored by an impartial, independent group of respected legal professionals assembled to evaluate all aspects of how the death penalty is administered in Kentucky in comparison to national standards. The Assessment Team consisted of two retired Kentucky Supreme Court Justices who had sentenced a defendant to death at the trial level and/or affirmed a death sentence on appeal, a former chair of the House Judiciary Committee of the Kentucky General Assembly, and a number of distinguished law professors and bar leaders.
After two years of study and evaluation, these justice system leaders concluded there were serious deficiencies in Kentucky’s capital punishment process that needed to be immediately addressed. Their report contained a multitude of disturbing findings, and provided 93 specific recommendations to fix documented defects in the investigative, charging, trial and appellate stages of death penalty prosecutions. To date, nine years later, there has been no formal review or response, and virtually none of the recommendations have been implemented.
As current and former public defenders with decades of experience in capital litigation in Kentucky, we know first-hand that our system is broken. The error rate in Kentucky cases resulting in a death sentence is alarmingly high, and it is unconscionable in a system that is supposed to dispense fair justice, particularly in cases involving the ultimate punishment. Between December 1976 and December 2019, seventy-eight people were sentenced to death. Fifty-two of those individuals have had their death sentences overturned on appeal by Kentucky or federal courts, or been granted clemency. No criminal justice system with this error rate should be viewed as reliable or working.
We invite those who may be inclined to question our views and continue to ignore the findings and recommendations, to review the full report found at: https://www.americanbar.org/groups/crsj/projects/death_penalty_due_process_review_project/state_death_penalty_assessments/kentucky/ and read an update and status report that we prepared and issued this month found at: https://dpa.ky.gov/News-and-Public-Information/Documents/Status%20Report%20on%20Death%20Penalty%20AssessmentFINAL.pdf
We also encourage consideration of the fact that a number of former Kentucky prosecutors have called for the reform of our death penalty process and that most Kentucky prosecutors no longer seek the death penalty despite the existence of potential aggravating circumstances. Importantly, a recent poll and study found that the people of Kentucky no longer favor death as a penalty. Further, in these tight budgetary times, it should be recognized by state government leaders that the costly death penalty process deprives Kentuckians of resources that could be used more effectively in the criminal justice system and elsewhere.
Kentucky has demonstrated over the past four decades that it does not have a justice system that assures fair and reliable results in death penalty prosecutions and trials. Not only does our flawed system risk convicting and executing the innocent, it undermines confidence in the courts and eliminates opportunities for more productive outcomes that would better ensure the safety of all Kentuckians.
The time is long past due to implement the common-sense recommendations made in 2011. It must take place now. Gradualism is not acceptable in this matter of life and death. If the Recommendations are not fully implemented, the only responsible alternative is to abolish capital punishment in our state, just as a growing number of other states in the country have done.
The authors are: Allison Connelly, professor at the University of Kentucky College of Law; former Kentucky Public Advocate (1992-1996); Ernie Lewis, former Kentucky Public Advocate (1996-2008); Edward C. Monahan, former Kentucky Public Advocate (2008-2017); Damon L. Preston, Kentucky Public Advocate (2017-present); Daniel T. Goyette, Defender Emeritus; former Executive Director (1982-2018), Louisville-Jefferson County Public Defender Corp.; Leo G. Smith, Executive Director (2018-present), Louisville-Jefferson County Public Defender Corp.