Kentucky

Kentucky

Kentucky Joins States With No Executions for at Least Ten Years

On November 21, 2018, Kentucky marked 10 years since its last execution, becoming the eleventh current death-penalty state that has not carried out an execution in more than a decade. Another 20 states have legislatively or judicially abolished their death-penalty laws, bringing the number of states that do not actively use the death penalty to 31. On the day before Kentucky reached its 10-year milestone, a lawsuit filed in federal court highlighted some of the greatest dangers of capital punishment in the Commonwealth. On November 20, Nickie Miller—a military veteran and cancer patient who spent two years in jail facing a possible death sentence before murder charges against him were dropped in 2017—filed a lawsuit against Montgomery County, Kentucky and local and state law enforcement officials alleging that they had conspired to frame him for murder.

Miller’s complaint names six people involved in his investigation and prosecution as defendants: Montgomery County Sheriff Fred Shortridge, Assistant Commonwealth Attorney Keith Craycraft, Detectives Ralph Charles Jr. and Mark Collier, county jailer Eric Jones, and Kentucky State Police Polygraph Examiner John Fyffe. The complaint alleges that the defendants fabricated and destroyed evidence, testified falsely, and coerced a woman into falsely implicating Miller by threatening to take her children unless she provided the statement they wanted. It specifically claims that Fyffe and the sheriff’s officers “conspired to take [Miller’s] liberty by knowingly initiating false charges based on evidence that the Defendants fabricated.” According to the complaint, the alleged misconduct “had a profound impact” on Miller’s health, denying him “proper medical treatment [for his cancer], including chemotherapy, while incarcerated.” “The defendants succeeded in manipulating the justice system for several years, including falsely accusing Mr. Miller of capital murder and seeking the death penalty against a clearly innocent man,” defense investigator Joshua Powell said. “Mr. Miller has suffered tremendous damage, mental suffering, cancer recurrence and loss of a normal life, all caused by the defendants’ misconduct.”

Kentucky has imposed 97 death sentences since reinstating the death penalty in 1975. More than half (49) of those convictions or sentences have been overturned, including the conviction of Larry Osborne, who was exonerated in 2002. Two of the three men executed in Kentucky waived some or all of their appeals, “essentially committing legal suicide,” said Damon Preston, a Public Advocate at the Kentucky Department of Public Advocacy. Preston also said that Kentucky’s death penalty system deprives families of closure: “It’s hard to see how the family would get resolution when the cases go on for so long. But the reason cases go on for so long is because the death penalty in Kentucky doesn’t work. If a defendant is sentenced to life without parole, that defendant gets an appeal to the Kentucky Supreme Court and then the case is essentially over.” Executions in Kentucky have been under a judicial hold since 2010, as a result of challenges to the lethal-injection protocol. The Attorney General’s Office is scheduled to file its brief in the lethal-injection case on November 30, but additional hearings and briefing are expected before the court issues a ruling in the case.

Kentucky Legislature Conducts Hearing on the Commonwealth's Death Penalty

A joint committee of the Kentucky legislature conducted a hearing on July 6, 2018 on the Commonwealth's rarely used death penalty, including a presentation by supporters and opponents of a bill to abolish capital punishment. The General Assembly's Interim Joint Committee on Judiciary took testimony from prosecutors, defense attorneys, correctional officials, and legislators on issues ranging from costs and arbitrariness to the length of the appeal process. Though Kentucky currently has 31 prisoners on death row, and prosecutors across the Commonwealth have filed 52 notices of intent to seek a death sentence, only three people have been executed since 1976. The last execution took place in 2008, and only one death sentence has been imposed in the last five years. Rep. Jason Nemes (R-Louisville), one of the sponsors of a House bill to abolish the death penalty, told the committee, "Kentucky should get out of the business of killing its citizens – period." Criticizing capital punishment based on his pro-life and small government views, Nemes noted that more than 150 people have been exonerated since the 1970s after having been wrongly convicted and sentenced to death in the U.S., and 49 out of the 97 death sentences imposed in Kentucky have already been overturned. "We don’t believe the government can adequately fill potholes," Nemes said. "And if we don’t believe the government can do that perfectly, then why should we give it the power to do that which is irreversible?" Senate Minority Leader Ray S. Jones (D-Pikeville) said that infrequent executions erode whatever deterrent effect the death penalty might have. Instead, he said, the death penalty creates a "false hope of closure." Rep. John Blanton (R-Salyersville), a retired Kentucky State Police officer and an execution proponent, responded, “[t]he problem is not the death sentence, the problem is the length of time we allow these people to look for everything under the sun." "Let's speed up the process," he said. The Kentucky Department of Public Advocacy estimates the cost of the death penalty to Kentucky taxpayers at about $10 million per year. Executions have been on hold in the Commonwealth since 2010, when a state judge placed an injuction halting all executions while courts reviewed the lethal injection protocol. Andrew English, general counsel for the Justice Cabinet, said the Department of Corrections has attempted to "rewrite the regulations to achieve conformity with the court rulings," but that "[t]here’s an ever-evolving change in the landscape when it comes to federal and state courts, with the death penalty." Kentucky, like other states, has encountered problems with determining what drugs are appropriate and available for use in executions.

Kentucky Supreme Court Strikes Down Commonwealth’s Death-Penalty Intellectual Disability Law

The Kentucky Supreme Court has struck down the Commonwealth’s death-penalty intellectual disability law, which required proof of an IQ score of 70 or below before a death-row prisoner or capital defendant could be found ineligible for the death penalty. The court ruled on June 14, 2018, in the case of Robert Keith Woodall (pictured) that the Commonwealth’s use of a strict IQ cutoff as a prerequisite to finding a defendant intellectually disabled violates the U.S. Supreme Court’s recent decisions in Hall v. Florida (2014) and Moore v. Texas (2017). Those decisions made clear that state standards for determining intellectual disability in death-penalty cases must be “informed by the medical community’s diagnostic framework” and that use of a fixed 70-IQ cutoff score is incompatible with that framework. The Kentucky court reversed a trial court decision that had rejected Woodall’s intellectual-disability claim, and ordered the trial court to reassess that claim using a proper standard. Woodall was convicted and sentenced to death in 1998. Four years later, in Atkins v. Virginia, the U.S. Supreme Court barred the death penalty for people with intellectual disability, and Woodall sought to have his death sentence overturned on those grounds. The trial court rejected his claim, saying he had not satisfied Kentucky's IQ requirement. The Hall decision, however, had specifically identified Kentucky’s IQ cutoff as one the statutory provisions that would violate the Eighth Amendment, and the Kentucky high court wrote that the Commonwealth's IQ standard “potentially and unconstitutionally exposes intellectually disabled defendants to execution.” Woodall’s attorneys praised the decision, saying, “While Kentucky was one of the first states to prohibit the execution of the intellectually disabled when it passed the statute that the Kentucky Supreme Court struck down today, that statute had long since become obsolete as the science moved forward. The Kentucky Supreme Court’s decision today to abandon that statute in favor of a more modern and scientific understanding of intellectual disability is very appropriate.” The court established new guidelines for lower courts to use in intellectual-disability hearings, including a “totality of the circumstances test,” which will examine whether defendants have the ability to learn basic skills and adapt their behavior to their circumstances.

Kentucky Trial Judge Rules Death Penalty Unconstitutional For Offenders Younger Than Age 21

A Kentucky trial court has declared the death penalty unconstitutional when applied against defendants charged with offenses committed while they were younger than age 21. Fayette County Circuit Judge Ernesto Scorsone's ruling bars the Commonwealth's prosecutors from seeking the death penalty against Travis Bredhold (pictured), who was age 18 years and five months at the time of the 2013 murder and robbery of a gas station attendant. The decision extends the U.S. Supreme Court's 2005 ruling in Roper v. Simmons, which held that the Eighth Amendment proscription against cruel and unusual punishments prohibited states from using the death penalty against offenders who were younger than 18 when the crime occurred. Roper itself had extended the protections of Thompson v. Oklahoma, which had created an age 16 minimum for death eligibility. In issuing its decision, the Kentucky court credited new scientific research on brain development and behavior that, it said, shows that 18- to 21-year-olds "are categorically less culpable" for the same reasons the Roper court excluded teenagers under age 18 from the death penalty. Scarsone wrote that the new scientific evidence shows that the portions of the brains of 18- to 21-year-olds that govern impulse control and evaluation of risks and rewards are more like those of teens than adults, "making them unlikely to be deterred by knowledge of likelihood and severity of punishment." Additionally, like teens, 18- to 21-year-olds "remain susceptible to peer pressure and emotional influence, which exacerbates their existing immaturity when in groups or under stressful conditions." Scorsone also wrote that the character of 18- to 21-year-olds is not yet well formed, and that because of the flexibility of the young brain to change in response to experience, "they have a much better chance at rehabilitation than do adults.” The court evaluated changes in death-penalty practices nationwide since Roper was decided, finding what it called "a very clear national consensus trending toward restricting the death penalty" in cases involving offenders ages 18 to 20. Looking at states that have abolished the death penalty, imposed moratoria on executions, or have a "de facto prohibitions on the execution of offenders under [age] 21"—meaning they have carried no executions of such defendants in at least 15 years—the court found that there are currently 30 states that would not execute offenders aged 18 through 20. Given the new scientific evidence and the "consistent direction of change" away from the practice, Scarcone concluded that “the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age." The court's decision also affects three other defendants whose death-penalty cases are pending before Scarcone. Commonwealth’s Attorney Lou Anna Red Corn has announced that she will appeal the ruling, calling it "contrary to the laws of Kentucky and the laws of the United States." There are currently 33 prisoners on Kentucky’s death row. The Commonwealth's last execution was in 2008.

Kentucky Attorneys Argue to Expand Juvenile Death Penalty Exemption, Citing Neurological Studies

Defense attorneys for Travis Bredhold, a Kentucky defendant facing the death penalty for a murder committed when he was 18 years old, are asking a judge to extend the death-penalty exemption for juvenile offenders to those younger than age 21. In 2005, the U.S. Supreme Court (pictured) ruled in Roper v. Simmons that the death penalty was unconstitutionally cruel and unusual punishment when applied to offenders who were under age 18 at the time of the crime. The Court held at that time that a national consensus had evolved against such executions and that the death penalty was a disproportionate punishment for juvenile offenders. In reaching that determination, the Court said that neither retribution nor deterrence provided adequate justification for imposing the death penalty. Justice Kennedy wrote for the majority, "Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity." Joanne Lynch, an attorney for Bredhold, told Fayette Circuit Judge Ernesto Scorsone that research indicates that brain maturation continues beyond the age of 18, and the juvenile exemption should be extended, "because people under the age of 21 are almost completely like people under the age of 18. You really don’t mature until you are in your mid-20s." According to Temple University psychology professor Laurence Steinberg, a process called myelination continues into a person's twenties, affecting their ability to plan ahead, analyze risks and rewards, and make complex decisions. In a 2014 paper, Hollis Whitson cited both neurological evidence of the immaturity of late-adolescent brains, as well as examples of how the law differentiates people under 21, including liquor laws, inheritance laws, and eligibility for commerical drivers' licenses. She also found that death sentences for those aged 18-20 were disproportionately applied to racial minorities. From 2000 through 2015, 142 prisoners were executed in the United States for offenses committed before age 21: 87 (61.3%) were black or Latino.

As Council Reviews Kentucky's Criminal Justice Policies, Former Prosecutors, Judge Urge Repeal of Death Penalty

Kentucky's recently-formed Criminal Justice Policy Assessment Council will be examining the state's criminal code, and is expected to examine a wide range of criminal justice issues—including the death penalty—in the first major overhaul of Kentucky's criminal code since the 1970s. The council, which was formed by Gov. Matt Bevin, includes legislators, judges, criminal justice experts, and religious leaders, charged with producing a list of recommendations for Kentucky lawmakers. One council member, Bishop William Medley, of the Catholic Diocese of Owensboro, has expressed moral opposition to the death penalty, and received backing for repealing the punishment from some in the courts and the prosecution bar. Circuit Judge Jay Wethington, a former prosecutor who prosecuted death penalty cases told the Messenger-Inquirer that he was "going to side with ... Bishop Medley" on that issue, but for different reasons. "We need to get rid of the death penalty," he said. "We spend too much money for the results." Meanwhile, three former Kentucky prosecutors wrote an op-ed for Louisville's Courier-Journal urging abolition of the death penalty. Joseph Gutmann (pictured), Stephen Ryan, and J. Stewart Schneider discussed the results of a recent University of Kentucky poll, which found that a large majority (72.4%) of Kentuckians support a moratorium on executions. They noted that support for the death penalty has risen since 2011, when the American Bar Association released a study that found serious problems with Kentucky's application of the death penalty. At that point, 62% of Kentuckians favored a suspension of executions. They conclude, "These poll results make it clear that Kentuckians’ concern about the fairness of the state’s criminal justice system is growing. As we have written before, replacing the death penalty with life without parole is the best approach for our state – protecting public safety, providing justice to the families of victims, removing the possibility that an innocent person will be executed and saving limited tax dollars."

Support for the Death Penalty by Republican Legislators No Longer a Sure Thing

One year after the Nebraska legislature voted to repeal the death penalty and overrode a gubernatorial veto of that measure, actions in legislatures across the country suggest that the state's efforts signalled a growing movement against the death penalty by conservative legislators and that support for the death penalty among Republican legislators is no longer a given. Reporting in The Washington Post, Amber Phillips writes that Republican legislators in ten states sponsored or co-sponsored legislation to repeal capital punishment during the current legislative sessions. She reports that although these repeal bills have not become law, they have made unprecedented progress in several states. In Utah, a repeal bill sponsored by Sen. Stephen Urquhart (pictured)—a former death penalty proponent who supported the state's firing squad law—came closest, winning approval in the state Senate and in a House committee. Missouri's bill saw floor debate in the Senate, and Kentucky's received a committee hearing for the first time in 40 years. An effort to return death penalty support to the platform of the Kansas Republican Party failed by a vote of 90-75, and the Kansas College Republicans passed a resolution calling for the abolition of the death penalty, highlighting a generational divide on the issue. Dalton Glasscock, former president of Kansas College Republicans, said, "My generation is looking for consistency on issues. I believe if we say we're pro-life, we need to be truly pro-life, from conception to death." The National Association of Evangelicals also changed their stance on the issue, acknowledging "a growing number of evangelicals," who now call for abolition. Though a majority of Republicans still support the death penalty, Phillips writes that "it's notable that a year after we wondered whether Nebraska was an anomaly or the start of a trend, there's plenty of evidence to suggest that conservative opposition to the death penalty may indeed be a trend -- a small but growing one."

EDITORIALS: Kentucky Newspaper Reverses Position on the Death Penalty

The Lexington Herald-Leader, Kentucky's second-largest newspaper, announced it was ending its long-held support for the death penalty, and now believes the state legislature should abolish capital punishment. Describing its previous position as "keep it but fix it," the editors stated, "we must now concede that the death penalty is not going to be fixed and, in fact, probably cannot be fixed at any defensible cost to taxpayers." Citing the 2011 American Bar Association assessment of Kentucky's death penalty, the Herald-Leader said the system was "rife with injustices and the potential for error." Among the reasons cited in the paper's editorial for the changing its position was the negative effects of the death penalty on victims' families and correctional officers. It quoted Dr. Allen Ault, who oversaw executions in Georgia, and who said, "I do not know one [correctional officer] who has not experienced a negative impact," noting an increased risk of depression, substance abuse, and suicide.

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