Op-Ed

Suspend state's death penalty lottery

Illustration by Lee Hulteng | MCT
Illustration by Lee Hulteng | MCT MCT

When I became Kentucky's public advocate in 1996, one of the first things I did was to call on policy makers to follow the American Bar Association's call for a moratorium on executions. I'd been a public defender for 19 years and, after handling numerous capital cases, had seen firsthand that the death penalty was broken beyond repair.

In 12 years as public advocate, everything I saw reinforced that view. I saw the death penalty was being used against the poor, people with mental retardation and mental illness, as well as people of color. I saw that many lawyers defending capital defendants were not qualified and that the death penalty was used in some counties but not in others.

The problems with the death penalty are once again staring us in the face. A group of prominent Kentuckians, including two former Supreme Court justices, has spent the last two years conducting an in-depth study of how the death penalty works in our state.

What they found has to undermine significantly any confidence we have in this system of life and death. Their report contains a number of very troubling findings, including:

 There are serious questions about the reliability of the verdicts in capital cases. Don't we depend on the process of arrest, charging, trial and sentencing to result in the arrest of the right person, a wise decision by the prosecutor to pursue the death penalty, a jury that understands what it's supposed to do and the law it's supposed to use, and a sentence that is fair and just? But what if innocent people may be convicted and sentenced to death? Do you favor executing people who have exhausted their appeals, knowing that the process used to determine their sentence is not reliable?

 There is an error rate of more than 60 percent. Of the 78 people sentenced to death since 1976, 50 of their cases were overturned by state or federal courts. The courts found that the trials were unfair or unconstitutional, or that another error affected the outcome of the case. Would you go to a dentist for a root canal who botched it more than 60 percent of the time, or get on an airplane that had a 60 percent error rate?

 Too many capital defendants are represented by unqualified lawyers. Not only is the error rate over 60 percent, but 10 of the 78 people on Death Row were represented by lawyers later disbarred. No wonder the error rate is so high.

 Jurors don't understand how they are supposed to reach a decision on whether to sentence to death.

We rely on the jury system to make this very important decision based on the instructions given by a trial judge. Yet the Kentucky Assessment Team found that jurors serving in capital cases did not understand what they were doing.

"A disturbingly high percentage of Kentucky capital jurors ... failed to understand the guidelines for considering aggravating and mitigating evidence ... (D)ue to confusion on the meaning of available alternative sentences, Kentucky jurors may opt to recommend a sentence of death when they otherwise would not."

 Law enforcement is not using the most reliable techniques to decide whether someone committed a crime. The team found, however, that some of the largest law enforcement agencies in our state "have no policies that are consistent with the ABA Best Practices on eyewitness identifications and interrogations."

 There is a geographical lottery. The team found that who gets sentenced to death and who does not is highly dependent on where the crime occurred.

 The death penalty remains a possibility for people with mental retardation and severe mental illness.

These are significant findings. They demonstrate that the death penalty is broken in Kentucky. We cannot permit these findings to be ignored, nor can we allow executions to occur while these allegations remain unanswered.

The Kentucky assessment team recommended "a temporary suspension of executions until the issues identified in this Report have been addressed and rectified."

Gov. Steve Beshear, Attorney General Jack Conway, and Kentucky legislators cannot ignore this report and continue down the road toward another execution. A moratorium should be declared immediately.

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