NEWS (3/26/20): Kentucky — The Kentucky Supreme Court has issued decisions in two cases presenting significant issues concerning the applicability of the death penalty against defendants with intellectual disability or under the age of 21.

In White v. Commonwealth, the court ruled that Larry White—who may be ineligible for the death penalty because of intellectual disability—may not waive a pending appeal claim of intellectually disability that is supported by evidence creating “reasonable doubt as to his intellectual capabilities.” White’s intellectual disability claim had been denied under a standard for determining intellectual disability that was later overturned by the U.S. Supreme Court. The U.S. Supreme Court reversed the Kentucky court’s ruling in the case and returned it to the state courts for reconsideration based upon prevailing clinical definitions of intellectual disability. In the interim, White filed a motion on his own to waive his intellectual disability claim and move on to the state post-conviction process. The Kentucky Supreme Court denied his attempted waiver and directed the trial court to conduct an evidentiary hearing to determine if he is intellectually disabled.

In the consolidated cases of Commonwealth v. Bredhold and Commonwealth v. Diaz and Smith, the court declined to address the constitutionality of imposing the death penalty upon a defendant who was younger than age 21 at the time of the offense. The court held that defendants Travis Bredhold, Efrain Diaz, Jr, and Travis Smith lacked standing to challenge whether they could be capitally tried for offenses committed before age 21 because they had not yet been sentenced to death. The Court wrote: “While death penalty trials are unquestionably more involved than typical felony trials, … presenting issues and procedures unique to the gravity of the penalty sought, the focus of Eighth Amendment analysis is not the trial, but rather the actual penalty imposed.” In the absence of a death sentence, it said, those issues would not be ripe to be decided. The appeals court returned the cases to the Fayette County Circuit Court to permit the capital trials to go forward.