In a recent op-ed in the Louisville Courier-Journal, three former Kentucky prosecutors advocated for repeal of the death penalty. Citing the findings of a study by the American Bar Association on Kentucky’s law, Joseph P. Gutmann (pictured), Stephen Ryan, and J. Stewart Schneider said, “[T]he death penalty is broken beyond repair in Kentucky.” Among the report’s findings were a reversal rate of 60% in death penalty cases, a lack of standards for eyewitness identification and interrogations, and public defender caseloads that far exceed the national average, despite pay that is 31% lower than surrounding states. A poll taken around the time of the report found 62% of Kentucky voters in support of a moratorium on executions. The former prosecutors recommended repeal: “Without question, this is a difficult issue, and efforts to ‘fix’ the death penalty in Kentucky will be costly and time-consuming. But there is one approach that is simpler and less expensive: Abolish the death penalty and replace it with life in prison without parole for convicted offenders….Replacing [the death penalty] with life without parole is the best approach for our state — removing the possibility that an innocent person will be executed, saving limited tax dollars, protecting public safety and providing certainty and justice to the families of victims.” Read the op-ed below.

End Death Penalty

Three years ago, a report was released by the American Bar Association revealing serious problems related to fairness and accuracy in the use of the death penalty in Kentucky.

The report followed an exhaustive two-year review of every case in which the death penalty had been imposed in the commonwealth since 1976; the review was conducted by an assessment team of Kentucky attorneys, former Kentucky Supreme Court justices and law school professors. The findings were numerous and troubling. Among them:

•Of the last 78 people sentenced to death in Kentucky, 50 have had a death sentence overturned on appeal by Kentucky or federal courts — an error rate of more than 60 percent.

•At least 10 of the 78 people sentenced to death were represented by defense attorneys who were subsequently disbarred.

•There is no requirement that evidence in criminal cases be retained as long as a defendant remains incarcerated, and the problem of lost evidence significantly diminishes the effectiveness of a state law that allows post-conviction DNA testing prior to execution.

•There are no uniform standards on eyewitness identifications and interrogations, and many of Kentucky’s largest law enforcement agencies do not fully adhere to best practices to guard against false eyewitness identifications and false confessions.

•Kentucky public defenders handling capital cases have caseloads that far exceed national averages and salaries that are 31 percent below those of similarly experienced attorneys in surrounding states.

•There are no statewide standards governing the qualifications and training of attorneys appointed to handle capital cases.

•Kentucky does not have adequate protections to ensure that death sentences are not imposed or carried out on a defendant with mental disabilities.

•There is a lack of data-keeping throughout the administration of the death penalty in Kentucky, making it impossible to guarantee that the system is operating fairly, effectively and efficiently.

These findings were so disturbing that the assessment team recommended that Kentucky suspend all executions until the issues are adequately addressed. A poll taken when the report was released found 62 percent of likely Kentucky voters statewide supported a temporary halt to executions. The support for a suspension was consistent across the state regardless of gender, geography or party registration.

Unfortunately, there has been no significant change in Kentucky’s death penalty law since this sobering report was released, although legislation has been proposed to address some of the problems it identified. Judicial action temporarily stopping executions in Kentucky has been related to concerns about the method of executions and drugs used, not the findings of the ABA team.

Without question, this is a difficult issue, and efforts to “fix” the death penalty in Kentucky will be costly and time-consuming.

But there is one approach that is simpler and less expensive: Abolish the death penalty and replace it with life in prison without parole for convicted offenders.

Studies have shown the cost of numerous legal appeals prompted by death sentences is far greater than the cost of locking up offenders for the rest of their lives. The death penalty also traps the families of victims in a decades-long cycle of uncertainty, court hearings and waiting for an execution that may never come.

The ABA review suggests that the death penalty is broken beyond repair in Kentucky. Replacing it with life without parole is the best approach for our state — removing the possibility that an innocent person will be executed, saving limited tax dollars, protecting public safety and providing certainty and justice to the families of victims.

Joseph P. Gutmann is a former Jefferson County Assistant Commonwealth’s Attorney. Stephen Ryan is a retired circuit court judge and former prosecutor, defense attorney and probation and parole officer. J. Stewart Schneider is stated supply speaker of Community Presbyterian Church of Bellefonte and former Commonwealth’s Attorney for the 32nd Judicial Circuit in Boyd County.

(J. Gutmann, et al., “End death penalty,” Courier-Journal, December 26, 2014). See New Voices and Studies.