Similar punishments for similar crimes committed by similar people acting under similar circumstances are the foundation of the criminal justice system. On this foundation stand essential constitutional and public policy pillars of due process, equal protection and proportional punishment.
Recent aggravated murder cases show a disparity in death penalty cases so divergent, so inexplicable and so extreme that the death penalty is called into question as a matter of public policy.
In the last two years, for example, a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences rather than death. One prosecutor immediately changed a death penalty case to a life without parole case simply because the prosecuting attorney made a mistake requiring a new trial.
To determine the proper symmetry of aggravated murder cases and capital punishment it is necessary to look at a universe of cases in which
Similar crimes got the death penalty
Similar crimes did not get the death penalty
Similar crimes were not prosecuted as death penalty cases.
While this three-pronged method of review is not required under Kentucky statutory law mandating proportionality reviews of all death sentences or the United State Constitution as interpreted by the United States Supreme, the extraordinary disparity in outcome of potential death penalty cases is troubling enough to justify a broad inquiry by the governor before signing a death warrant.
The governor has vast clemency powers without constraints and virtually beyond review. The drafters of Kentucky's constitution made a plenary grant of executive power to enable the chief magistrate do justice on a plane beyond the minimum required by statute. Confidence in the justice system can only be achieved by finding a reasonable explanation for a disparity that is now inexplicable.
297 words/ May 25, 2010
Donald Vish, Kentucky Coalition to Abolish the Death Penalty, Louisville