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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.


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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.


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