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.”