Two years ago, a group of prominent Kentucky citizens began to look at how the death penalty was being implemented in our state. This group, called the Kentucky Death Penalty Assessment Team, consisted of a former chair of the House Judiciary Committee, two former Supreme Court justices and three law professors. This group was staffed by an attorney with the American Bar Association. They recently found the following:
There are serious questions about the reliability of the verdicts occurring in capital cases. Don’t we depend upon the process of arresting, charging, trying, and sentencing to result in the arrest of the right person? Don’t we depend upon a wise decision by the prosecutor whether to pursue the death penalty for the person arrested? Don’t we expect a jury that understands what they are supposed to do and the law they are supposed to use when they make their decision? Don’t we expect the accused to be defended by a competent lawyer? But what if this does not occur? What if the system is not producing reliable verdicts? What if innocent persons may be convicted and sentenced to death? What if you knew that all appeals have been exhausted for a number of men presently on death row? Do you favor executing those men, knowing that the process used to determine their sentence is not reliable?
There is an error rate of over 60%. Of the 78 persons sentenced to death since 1976, 50 had their cases overturned by either the state or federal courts. Courts do not, contrary to conventional wisdom, reverse convictions or sentences on “technicalities.” The courts found that the trials were unfair, unconstitutional or that another error affected the outcome of the case. Would you go to a dentist for a root canal who botched it over 60% of the time? Would you send your kid to a school that messed up the standardized tests over 60% of the time? Would you get in an airplane that had a 60% error rate? Of course you wouldn’t – and yet this report found that our system in Kentucky is getting it wrong over 60% of the time.
Too many capital defendants are being represented by unqualified lawyers. Not only is the error rate over 60%, but 10 of the 78 persons 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 decide whether to sentence to life or death. We rely upon the jury system to make the very important decision as to who is going to live and who is going to die. Jurors make decisions based upon the instructions given by a trial judge. Yet, the Kentucky Death Penalty Assessment Team found that jurors serving in capital cases did not understand what they were doing. “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…(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 least we should demand is that law enforcement do all within their power to use the best practices when interrogating a person or when having an eyewitness pick someone out of a lineup. The Kentucky Death Penalty Assessment 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 Kentucky Death Penalty Assessment Team found that who gets sentenced to death and who does not is highly dependent upon the county in which the crime occurred.
The death penalty remains a possibility for persons with mental retardation and severe mental illness.
What was the response of our local prosecutor to these findings? Surely he would want to study the report and to be cautious about supporting the execution of persons sentenced under this regimen, particularly since several of the findings undercut the reliability of the guilt or innocence determination. Surely he would want a moratorium until the questions about the death penalty were resolved. Surely he would want to join with his fellow prosecutors to ensure that only the guilty and the most deserving were going to receive the ultimate and irrevocable penalty. I was personally disappointed to read that his response was neither cautious or wise. Instead, on Thursday, January 26, he was quoted in The State Journal saying he did not favor the moratorium on executions called for by the team’s report. He wanted the death penalty to be carried out on those waiting to die irrespective of serious questions regarding the fairness of the process leading to their being sentenced to death. He stated that he believed the death penalty was a deterrent, despite the U.S. Supreme Court’s finding that the evidence was unclear whether it deterred or not, and despite most criminologists believing that it is not a deterrent.
It is hoped that others in our community will study these 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 was clear about what should happen next: The team felt compelled “to recommend a temporary suspension of executions until the issues identified in this teport have been addressed and rectified.”
Gov. Beshear, Attorney General Jack Conway, Kentucky legislators, and our local prosecutor cannot ignore this report and continue down the road toward another execution. A moratorium should be declared immediately.
Ernie Lewis is a former Kentucky Public Advocate. He is legislative agent for the Kentucky of Criminal Defense Lawyers.