The time to end the death penalty in Kentucky has come.

A report released earlier this month on a two year assessment conducted by the American Bar Association [ABA] found that Kentucky's death penalty system is so broken and unfair that the state should declare a moratorium on executions. A moratorium would be a good start, and if Kentucky voters have any say in the matter, one will be imposed sooner rather than later. A survey conducted right before the report was released showed that strong majorities of likely 2012 Kentucky voters support a death penalty moratorium, and these majorities go across party affiliation, gender, and even geography within the state.

Source: Lake Research Partners survey of 405 likely November 2012 Kentucky voters, Nov. 30–Dec. 4, 2011, margin of error (±4.9%)

But a moratorium doesn't go far enough. The time has come to end the death penalty in Kentucky once and for all. (If you agree, sign this petition that will be delivered to Governor Beshear and members of the Kentucky House and Kentucky Senate.)

While the report credits Kentucky with taking some important steps to improve the quality and fairness of its death penalty process, the shortcomings are enormous. The ABA made dozens of recommendations that included passing new laws, funding facilities for preserving biological evidence, training of law enforcement officers and prosecutors, developing accountability and disciplinary measures for investigators, upgrades to the state's crime laboratories, policies and disciplinary measures to prevent prosecutorial misconduct, an overhaul of the defense services provided to capital defendants... the list goes on for page after page after page. Numerous recommendations include the phrase "provide funding for..."

A sampling from the report of what Kentucky would need to fix:

Kentucky laws and procedures do not sufficiently protect the innocent, convict the guilty, and ensure the fair and efficient enforcement of criminal law in death penalty cases

Evidence in criminal cases, including capital cases, is not required to be retained for as long as the defendant remains incarcerated, despite the possibility of wrongful conviction. Kentucky law and practice also permits destruction of evidence in a variety of instances, including, in some cases, when the perpetrator remains at large

While the Commonwealth’s post-conviction DNA testing statute permits post-trial testing of biological evidence prior to execution under some circumstances, the problem of lost evidence significantly diminishes the utility of the statute

...some of the Commonwealth’s largest law enforcement agencies have no policies that are consistent with the ABA Best Practices on eyewitness identifications and interrogations. In those agencies that have adopted policies, the policies are not uniformly enforced.

Kentucky does not require the accreditation of its forensic laboratories (and only three of its six have voluntarily obtained accreditation), MEO, or any of the 120 county coroner offices. Other KSP Laboratory branches or smaller law enforcement agencies conducting limited forensics are not accredited by any national accrediting body. Kentucky also funds its medical examiner and county coroner systems at levels far below the national average. Testing backlogs persist at KSP Laboratory causing delays in all criminal cases

...there is no mechanism in place to guide prosecutors in their charging decisions to support the even-handed, non-discriminatory application of the death penalty across the Commonwealth

All Kentucky public defenders handling capital cases retain caseloads that far exceed national averages and recommended maximum caseloads. In some cases, Kentucky public defenders provide capital representation while carrying caseloads of over 400 non-capital cases each year. Support staff members, including investigators and mitigation specialists, are routinely overworked and underpaid, carrying caseloads ranging from twelve to twenty-five capital cases at any given time. A 2011 study found that Kentucky public defenders who handle death penalty cases make 31% less than similarly-experienced attorneys in surrounding states constituting the lowest average salaries of examined jurisdictions. Furthermore, the hourly rates and maximum caps on compensation available for contract counsel in death penalty cases are inadequate to ensure high quality legal representation and are far below the rates available to attorneys performing contractual work for the Commonwealth on civil matters

At least ten of the seventy-eight people sentenced to death since 1976 were represented by defense counsel who were subsequently disbarred. While Kentucky’s public defender agencies seek to enforce internal standards governing the proper provision of counsel in all death penalty cases assigned to their agencies, Kentucky has not adopted any statewide standards governing the qualifications and training of attorneys appointed to handle capital cases at trial, on appeal, and during post-conviction proceedings

When an execution date is set prior to the expiration of the three-year statute of limitations imposed for filing a post-conviction petition, it has the effect of significantly curtailing the time that a death row inmate has to prepare and file his/her petition

for post-conviction relief. Inmates not under a death sentence do not face a similar time constraint. Kentucky also does not authorize discovery in state post-conviction proceedings and prohibits inmates from using the Kentucky Open Records Act to obtain materials possessed by law enforcement that may be essential for establishing a death row inmate’s constitutional claims. The lack of discovery during post-conviction review makes it all the more likely that death row inmates will be unable to develop viable claims of constitutional error in light of the truncated time period in which they must prepare their petitions. Furthermore, Kentucky post-conviction courts typically do not authorize any funding for mental health experts to assist potentially mentally retarded death row inmates to accurately determine and prove their mental capacities

for post-conviction relief. Inmates not under a death sentence do not face a similar time constraint. Kentucky also does not authorize discovery in state post-conviction proceedings and prohibits inmates from using the Kentucky Open Records Act to obtain materials possessed by law enforcement that may be essential for establishing a death row inmate’s constitutional claims. The lack of discovery during post-conviction review makes it all the more likely that death row inmates will be unable to develop viable claims of constitutional error in light of the truncated time period in which they must prepare their petitions. Furthermore, Kentucky post-conviction courts typically do not authorize any funding for mental health experts to assist potentially mentally retarded death row inmates to accurately determine and prove their mental capacities A disturbingly high percentage of Kentucky capital jurors who were interviewed by the Capital Jury Project failed to understand the guidelines for considering aggravating and mitigating evidence. For example, 45.9% of jurors failed to understand that they could consider mitigating evidence at sentencing, 61.8% failed to understand that they need not find mitigation “beyond reasonable doubt,” and 83.5% of jurors did not understand that they need not have been unanimous on findings of mitigation

The Kentucky Supreme Court cannot engage in meaningful proportionality review to determine if a death sentence is proportionate in comparison to similar cases and offenders. It does not appear that the relevant data on capital charging practices has been maintained to permit the Court to undertake a searching proportionality review

Without a statewide entity that collects data on all death-eligible cases in the Commonwealth, Kentucky cannot determine the extent of racial or geographic bias in its capital system

Use of the death penalty is plummeting

Richard Dieter, Executive Director of the Death Penalty Information Center and author of The Death Penalty in 2011: Year End Report, notes that the nation as a whole is backing away from the death penalty.

This year, the use of the death penalty continued to decline by almost every measure... Executions, death sentences, public support, the number of states with the death penalty all dropped from previous years. Whether it’s concerns about unfairness, executing the innocent, the high costs of the death penalty, or the general feeling that the government just can’t get it right, Americans moved further away from capital punishment in 2011.

The death penalty isn't for victim's families, either

Ben Griffith recently wrote a letter-to-the-editor that was published by the Frankfort State-Journal. In it he said this.

To make the leap that murder victim families are united in wanting a death penalty continues the critical oversimplification of “paying a price commensurate with their crimes” and the pathetic use of a grieving family at a parole hearing to justify another murder. I belong to two different organizations of murder victim families (thousands of us) that feel victim survivors are victimized yet again when murderers are given the gallows. My brother was murdered in 1986 and his murderer was poisoned to death in 1997 by the state of Missouri. That is why I work as a board member of the Kentucky Coalition to Abolish the Death Penalty. Don’t lay the need to continue executions down at victims’ feet. (You don’t know the voices of all of us.)



What's Next

Legislation that would ban the execution of people with severe mental illnesses, as well as legislation to abolish the death penalty in Kentucky completely, is expected to come before the Kentucky General Assembly within a few weeks.

There is a petition demanding an end to the death penalty in Kentucky. It will be delivered to Governor Beshear and all members of the Kentucky legislature, with results being broken out by district for representatives in the Kentucky House and Senate. You can sign it and then share it on Facebook, Twitter, by e-mail, etc.

You can also find your state senator and representative, along with their e-mail address and phone number, at Project VoteSmart.

Photo: Courtesy California Department of Corrections and Rehabilitation

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Louisville.com's The Arena section features opinions from active participants in the city's politics. Their viewpoints are not those of Louisville.com (a website is an inanimate object and, as such, has no opinions).

Disclosure: Louisville.com's editor-in-chief, Zach Everson, is on the board of directors for the Kentucky Coalition to Abolish the Death Penalty. He did not assign this article, nor did he make any revisions to the text the author submitted.