NEW VOICES: Former Kentucky Supreme Court Justices Call for Halt to Executions

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.