Report: Failure to Implement Reforms Undermines Legitimacy of Kentucky’s Death-Penalty System

Nine years after an American Bar Association (ABA) study identified systemic deficiencies in Kentucky’s administration of its death-penalty laws, a new report by past and current Kentucky public defenders charges that the Commonwealth’s failure to take any meaningful remedial action undermines the legitimacy of capital punishment in the state.

The public defenders’ Review and Report on the Status of the Recommendations Made by the Kentucky Death Penalty Assessment Team, says that “Kentucky has not taken significant steps to implement the ninety-three (93) Recommendations made [by the ABA] to ensure the death penalty is administered fairly according to national standards and protocols.” This failure, the defenders say, “calls into question the legitimacy of continuing to seek the death penalty in statutorily eligible cases in the Commonwealth of Kentucky.”

In 2011, an assessment team of the ABA Death Penalty Due Process Review Project released a comprehensive review of Kentucky’s death-penalty system and made 93 recommendations for reform. A review by six current and former public defenders—including the four lawyers to hold the title of Kentucky Public Advocate for the past 28 years and the two who have served as Executive Director of the Louisville-Jefferson County Public Defender Corporation over the course of the past 38 years—found that no branch of state government had made any effort to “fully and properly review[ ] or act[ ] upon” the recommendations. “Over the course of four decades, ample evidence has accrued indicating that Kentucky does not have a system that fairly and reliably assures who should be executed, which has created a real risk of executing the innocent, compromised the credibility of our courts and the outcomes of the judicial process, and robbed the rest of the criminal justice system of funds that could be used productively to protect the safety of Kentuckians and address other societal ills. Under these circumstances,” the report says, “ignoring the well-documented, authoritative findings and sound recommendations of such a respected, learned and balanced group of legal professionals cannot be justified.”

The public defenders’ report spotlights the state government’s inaction on implementing key reforms recommended by the ABA. It notes that despite polling indicating that 82% of Kentuckians oppose the death penalty for people with severe mental illness, a bipartisan bill to exempt severely mentally ill defendants from capital punishment failed in the legislature in 2019. Similarly, bills introduced in 2013 and 2014 by Senator Robin Webb—which addressed ABA reform recommendations including preservation of evidence, improvement of jury instructions, changes to the appellate and clemency processes, and reducing racial disparities—did not even receive a hearing in the legislature. The single reform that was enacted by the legislature, the report says, was increased access to post-conviction DNA testing.

Kentucky’s judicial branch has been equally resistant to reform, the defenders said. In 2012, shortly after the ABA assessment was released, eight reform proposals were made to the Kentucky Supreme Court’s Criminal Rules Committee. None were adopted. In 2015, the Supreme Court Rules Committee again declined to advance a slate of reform recommendations, except for an evidence-preservation rule that went into effect in 2019 that, the defenders say, “was substantially less than what the proposed rule had set forth.”

In the time since the ABA assessment was published in 2011, seven Kentucky death sentences have been reversed or otherwise lifted, while only two new death sentences have been imposed. No executions have been carried out since 2008. The report says the Commonwealth’s error rate in death-penalty cases remains “exceptionally high,” with 52 of the 78 people who have been sentenced to death receiving sentence reversals or clemency.

The authors conclude with an “urgent call for judicial, legislative and executive branch leaders to immediately implement the Kentucky Assessment Team’s 2011 Recommendations in this matter of life and death.” “Further delay in implementing the common-sense reforms recommended in 2011 to assure the fair administration of the death penalty in Kentucky cannot be tolerated,” they write. “We must act now … or abolish capital punishment.”