Two for­mer Supreme Court Justices in Kentucky and the President of the American Bar Association called for a sus­pen­sion of exe­cu­tions in the state until its death penal­ty sys­tem is reformed. Writing in the Louisville Courier-Journal, the Justices stat­ed, ​“The list of prob­lem­at­ic cas­es is stag­ger­ing, and review of the sys­tem is deeply trou­bling. Fairness, impar­tial­i­ty and effec­tive­ness of coun­sel have been under­mined by seri­ous flaws that reveal sys­temic prob­lems in admin­is­tra­tion of the death penal­ty in the com­mon­wealth.” Citing find­ings from a recent study con­duct­ed by the ABA, for­mer Justices James Keller (pic­tured) and Martin Johnstone, along with William Robinson, President of the ABA, not­ed that since 1976, when the death penal­ty was rein­stat­ed, 50 of the 78 peo­ple who have been sen­tenced to death have had their sen­tence or con­vic­tion over­turned due to mis­con­duct or seri­ous errors that occurred dur­ing their tri­al. The writ­ers said, ​“In Kentucky, we can­not be cer­tain that our death penal­ty sys­tem is fair and accu­rate. Our Death Penalty Assessment Team of lawyers, judges, bar lead­ers and legal experts con­duct­ed an exhaus­tive, two-year review of the death penal­ty sys­tem and iden­ti­fied a host of prob­lems at var­i­ous stages of the cap­i­tal process, many of which increase the risk of exe­cut­ing the inno­cent. The prob­lems affect not only those pos­si­bly fac­ing exe­cu­tion, but also vic­tims of crime.” Read full op-ed below.

Suspend Kentucky exe­cu­tions until sys­tem is reformed: Ensuring jus­tice must be our pri­ma­ry con­cern
by William T. (Bill) Robinson III, James E. Keller and Martin E. Johnstone

Consider the case of a per­son con­vict­ed and sen­tenced to die with only the evi­dence of inad­mis­si­ble hearsay link­ing him to the crime. Or the per­son whose defense coun­sel con­sist­ed of a ​“semi-retired” vol­un­teer lawyer with a drink­ing prob­lem and a sec­ond lawyer with no expe­ri­ence in try­ing felony cas­es. Another egre­gious case involves a defen­dant whose lawyers failed to present any evi­dence that would con­vince the jury to spare his life, when avail­able evi­dence would have sup­port­ed a lesser sentence.

We’re sad­dened to report that these are not only real death penal­ty cas­es in Kentucky, but they’re also all too com­mon. The list of prob­lem­at­ic cas­es is stag­ger­ing, and review of the sys­tem is deeply trou­bling. Fairness, impar­tial­i­ty and effec­tive­ness of coun­sel have been under­mined by seri­ous flaws that reveal sys­temic prob­lems in admin­is­tra­tion of the death penal­ty in the commonwealth.

Since Kentucky rein­stat­ed the death penal­ty in 1976, 50 of the 78 peo­ple sen­tenced to death have had a death sen­tence or con­vic­tion over­turned on appeal due to seri­ous errors or mis­con­duct that occurred at trial.

Most peo­ple fac­ing the death penal­ty are not sym­pa­thet­ic fig­ures. Their alleged crimes are abhor­rent and fam­i­lies of the vic­tims expe­ri­ence unfath­omable grief. But deliv­er­ing jus­tice is the foun­da­tion of our sys­tem — a prin­ci­ple that we must uphold for every­one — even those whose actions are repug­nant and even when out­raged com­mu­ni­ties desire to see the ultimate punishment.

As a soci­ety, if we are going to take a life, we need to ensure that the foun­da­tion of our sys­tem is sound. Judges and jurors must be neu­tral and fair, and both par­ties must be adequately represented.

Former American Bar Association President Jack Curtin said it best: ​“A sys­tem that takes life must first give justice.”

In Kentucky, we can­not be cer­tain that our death penal­ty sys­tem is fair and accu­rate. Our Death Penalty Assessment Team of lawyers, judges, bar lead­ers and legal experts con­duct­ed an exhaus­tive, two-year review of the death penal­ty sys­tem and iden­ti­fied a host of prob­lems at var­i­ous stages of the cap­i­tal process, many of which increase the risk of exe­cut­ing the inno­cent. The prob­lems affect not only those pos­si­bly fac­ing exe­cu­tion, but also vic­tims of crime.

That’s why we are call­ing for a sus­pen­sion of exe­cu­tions until the prob­lems iden­ti­fied by the team are addressed and remedied.

As offi­cers of the court and mem­bers of the bench and bar, we have a duty to uphold the law. We also have an oblig­a­tion to use our skills, tal­ents and exper­tise to ensure the fair admin­is­tra­tion of jus­tice. We take that com­mit­ment very seri­ous­ly. After review­ing too many areas in which we fall short in pro­tect­ing against wrong­ful con­vic­tion and fail­ing to ensure fair and accu­rate pro­ce­dures, we agree with the team’s unanimous recommendation.

We are hope­ful that our detailed report and analy­sis will be a call to action for reform of the death penalty system.

In Kentucky, we must reserve cap­i­tal pun­ish­ment for the most heinous of offens­es and offend­ers; we have to make sure that we are get­ting it right. We owe the cit­i­zens of this com­mon­wealth no less.

-Wm. T. (Bill) Robinson III is pres­i­dent of the American Bar Association and for­mer pres­i­dent of the Kentucky Bar Association. James E. Keller and Martin E. Johnstone are for­mer Kentucky Supreme Court jus­tices and mem­bers of the Kentucky Death Penalty Assessment Team.

(W. Robinson, J. Keller and M. Johnstone, ​“Suspend Kentucky exe­cu­tions until sys­tem is reformed: Ensuring jus­tice must be our pri­ma­ry con­cern,” Louisville Courier-Journal, December 18, 2011). See Arbitrariness and Representation. Read full ABA report.

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