An Op-Ed signed by eleven cur­rent and for­mer Kentucky pros­e­cu­tors calls for reforms to Kentucky’s death penal­ty, in light of the recent report issued by the American Bar Association. The ABA report was released in December after a two-year study of fair­ness and accu­ra­cy in cap­i­tal cas­es in Kentucky. The pros­e­cu­tors cite Kentucky’s ​“unac­cept­able” 60% error rate in death sen­tenc­ing, say­ing ​“As a mat­ter of basic fair­ness, we must pause to under­stand and reform the way cap­i­tal pun­ish­ment is admin­is­tered in our state.” They rec­om­mend a sus­pen­sion of exe­cu­tions until reforms are imple­ment­ed, in order to ensure a fair process. Among their sug­ges­tions for reform are a pro­pos­al cur­rent­ly being con­sid­ered by the state leg­is­la­ture that would exempt sev­er­ly men­tal­ly ill defen­dants from the death penal­ty. Other rec­om­men­da­tions include preser­va­tion and test­ing of bio­log­i­cal evi­dence, increased fund­ing for indi­gent defense, and revi­sion of jury instruc­tions. They con­clude, ​“The hall­mark of our crim­i­nal jus­tice sys­tem is that its process is fair and its results are reli­able and accu­rate. Our rever­sal rate under­mines this hall­mark. These trou­bling issues in cap­i­tal cas­es must be addressed now.”

Read full op-ed below.

Prosecutors: Ky. capital punishment unfair

Of the 78 peo­ple sen­tenced to death in Kentucky since 1976, 50 have had a death sen­tence over­turned on appeal by Kentucky or fed­er­al courts because of sig­nif­i­cant legal errors. That is an unac­cept­able error rate of more than 60 percent.

Kentucky’s jus­tice sys­tem is at an his­toric moment. As a mat­ter of basic fair­ness, we must pause to under­stand and reform the way cap­i­tal pun­ish­ment is admin­is­tered in our state.

Each of us is a cur­rent or for­mer pros­e­cu­tor, some of whom have pros­e­cut­ed cap­i­tal cas­es in our commonwealth.

As pros­e­cu­tors, we con­tin­ue to believe that heinous crim­i­nal con­duct must be pun­ished severe­ly in a way that advances public safety.

However, pun­ish­ment must be a result of a fair process that pro­duces valid results in which we have full con­fi­dence. It is time to sus­pend exe­cu­tions in Kentucky until the reforms rec­om­mend­ed by a ground­break­ing pro­fes­sion­al study are implemented.

Over the last two years, the American Bar Association Kentucky Assessment Team on the Death Penalty, con­sist­ing of two retired Kentucky Supreme Court Justices, a for­mer chair of the House Judiciary Committee, dis­tin­guished law pro­fes­sors and bar lead­ers, con­duct­ed the most exten­sive evi­dence-based analy­sis of the man­ner in which the death penal­ty is admin­is­tered in Kentucky in the his­to­ry of the commonwealth.

Its report focus­es on fair­ness and accu­ra­cy in cap­i­tal cas­es. It takes no posi­tion with regard to whether or not the death penal­ty should be abol­ished. It is only con­cerned with its proper administration.

The inde­pen­dent, com­pre­hen­sive eval­u­a­tion of all death penal­ty cas­es pros­e­cut­ed in Kentucky iden­ti­fied a num­ber of very seri­ous prob­lems with the use of the death penalty.

The study makes a series of crit­i­cal­ly impor­tant rec­om­men­da­tions that will address the prob­lems iden­ti­fied with the way the death penal­ty is admin­is­tered in our state.

We endorse these sensible recommendations:

■ Adopt leg­is­la­tion exempt­ing the severe­ly men­tal­ly ill from the death penal­ty. There is a bill pend­ing before the Kentucky General Assembly that would accom­plish this reform, HB 145, intro­duced by Rep. Darryl Owens with 11 bipartisan co-sponsors.

■ Guarantee prop­er preser­va­tion of all bio­log­i­cal evi­dence in cap­i­tal cas­es. Courts should order DNA test­ing if the results could cre­ate a rea­son­able prob­a­bil­i­ty that a defen­dant should not have been sen­tenced to death. The Kentucky Supreme Court has been asked to con­sid­er a rule change that would rec­ti­fy this problem.

■ Provide addi­tion­al fund­ing to ensure defense attor­neys who rep­re­sent indi­gent cap­i­tal defen­dants are paid at a rate that will enable them to pro­vide high qual­i­ty legal ser­vices in mat­ters as com­plex and demand­ing as a death penalty case.

Recently, a report issued by the Kentucky Bar Association’s Task Force on the Provision and Compensation of Conflict Counsel for Indigents made rec­om­men­da­tions endorsed by the KBA board of gov­er­nors to pro­vide improved fund­ing for cap­i­tal cas­es. As a result, Kentucky’s statewide pub­lic defend­er pro­gram has request­ed addi­tion­al funds for this rep­re­sen­ta­tion, but such fund­ing is not now a part of the bud­get bill before the General Assembly.

■ Law enforce­ment train­ing and prac­tices should com­port with well-known best prac­tices in areas such as inter­ro­ga­tions, con­fes­sions and eye­wit­ness iden­ti­fi­ca­tion in order to pro­mote the appre­hen­sion of the guilty and pre­vent the con­vic­tion of the inno­cent. Rule pro­pos­als that would begin to address these issues have been sub­mit­ted to the Kentucky Supreme Court for its consideration,

■ Adopt statewide stan­dards gov­ern­ing the qual­i­fi­ca­tions and train­ing required of defense attor­neys han­dling capital cases,

■ Adopt guide­lines gov­ern­ing the exer­cise of pros­e­cu­to­r­i­al dis­cre­tion in death penal­ty cas­es. Today, at great expense to the sys­tem, many cas­es are pros­e­cut­ed as cap­i­tal cas­es when the like­li­hood of a death sen­tence is very low.

■ Establish a statewide clear­ing­house to col­lect spe­cif­ic, per­ti­nent data on all death-eligible cases.

■ Amend Kentucky’s post-con­vic­tion rules and prac­tices to per­mit ade­quate devel­op­ment and con­sid­er­a­tion by the courts of an inmate’s claims of con­sti­tu­tion­al error. A rule pro­pos­al has been sub­mit­ted to the Kentucky Supreme Court to address this issue.

■ Revise the jury instruc­tions typ­i­cal­ly giv­en in cap­i­tal cas­es to improve death penal­ty juror under­stand­ing and com­pre­hen­sion of the law to be applied.

■ Correct short­com­ings of the Kentucky Racial Justice Act to ensure that the act serves as an effec­tive rem­e­dy for racial dis­crim­i­na­tion in death penalty cases.

The hall­mark of our crim­i­nal jus­tice sys­tem is that its process is fair and its results are reli­able and accu­rate. Our rever­sal rate under­mines this hallmark.

These trou­bling issues in cap­i­tal cas­es must be addressed now.

This col­umn is signed by John L. ​“Jack” Smith, for­mer U.S. Attorney for the Western District of Kentucky; Alexander T. ​“Sandy” Taft, for­mer U.S. Attorney for the Western District of Kentucky; Stephen B. Pence, for­mer U.S. Attorney for the Western District of Kentucky and for­mer Lt. Governor of the Commonwealth of Kentucky; Marc S. Murphy, for­mer Jefferson County Commonwealth’s Attorney; Michael J. ​“Mike” O’Connell, Jefferson County Attorney; Joe Gutmann, for­mer Jefferson County Assistant Commonwealth’s Attorney; Scott C. Cox, for­mer Assistant U.S. Attorney; Larry D. Simon, for­mer Jefferson County Assistant Commonwealth’s Attorney; Will Collins, for­mer Letcher County Commonwealth’s Attorney; Jeffrey A. Darling, for­mer Fayette County Assistant Commonwealth’s Attorney; J. Stewart Schneider, for­mer Boyd County Commonwealth’s Attorney.

(J. Smith, et. al., ​“Prosecutors: Ky. cap­i­tal pun­ish­ment unfair,” Lexington Herald-Leader, March 7, 2012.)

See also New Voices and Studies.