Of the 78 people sentenced to death in Kentucky since 1976, 50 have had a death
sentence overturned on appeal by Kentucky or federal courts because of
significant legal errors. That is an unacceptable error rate of more than 60
Kentucky's justice system is at an historic moment. As a matter of basic
fairness, we must pause to understand and reform the way capital punishment is
administered in our state.
Each of us is a current or former prosecutor, some of whom have prosecuted
capital cases in our commonwealth.
As prosecutors, we continue to believe that heinous criminal conduct must be
punished severely in a way that advances public safety.
However, punishment must be a result of a fair process that produces valid
results in which we have full confidence. It is time to suspend executions in
Kentucky until the reforms recommended by a groundbreaking professional study
Over the last 2 years, the American Bar Association Kentucky Assessment Team on
the Death Penalty, consisting of 2 retired Kentucky Supreme Court Justices, a
former chair of the House Judiciary Committee, distinguished law professors and
bar leaders, conducted the most extensive evidence-based analysis of the manner
in which the death penalty is administered in Kentucky in the history of the
Its report focuses on fairness and accuracy in capital cases. It takes no
position with regard to whether or not the death penalty should be abolished.
It is only concerned with its proper administration.
The independent, comprehensive evaluation of all death penalty cases prosecuted
in Kentucky identified a number of very serious problems with the use of the
The study makes a series of critically important recommendations that will
address the problems identified with the way the death penalty is administered
in our state.
We endorse these sensible recommendations:
-Adopt legislation exempting the severely mentally ill from the death penalty.
There is a bill pending before the Kentucky General Assembly that would
accomplish this reform, HB 145, introduced by Rep. Darryl Owens with 11
-Guarantee proper preservation of all biological evidence in capital cases.
Courts should order DNA testing if the results could create a reasonable
probability that a defendant should not have been sentenced to death. The
Kentucky Supreme Court has been asked to consider a rule change that would
rectify this problem.
-Provide additional funding to ensure defense attorneys who represent indigent
capital defendants are paid at a rate that will enable them to provide high
quality legal services in matters as complex and demanding as a death penalty
Recently, a report issued by the Kentucky Bar Association's Task Force on the
Provision and Compensation of Conflict Counsel for Indigents made
recommendations endorsed by the KBA board of governors to provide improved
funding for capital cases. As a result, Kentucky's statewide public defender
program has requested additional funds for this representation, but such
funding is not now a part of the budget bill before the General Assembly.
-Law enforcement training and practices should comport with well-known best
practices in areas such as interrogations, confessions and eyewitness
identification in order to promote the apprehension of the guilty and prevent
the conviction of the innocent. Rule proposals that would begin to address
these issues have been submitted to the Kentucky Supreme Court for its
-Adopt statewide standards governing the qualifications and training required
of defense attorneys handling capital cases,
-Adopt guidelines governing the exercise of prosecutorial discretion in death
penalty cases. Today, at great expense to the system, many cases are prosecuted
as capital cases when the likelihood of a death sentence is very low.
-Establish a statewide clearinghouse to collect specific, pertinent data on all
-Amend Kentucky's post-conviction rules and practices to permit adequate
development and consideration by the courts of an inmate's claims of
constitutional error. A rule proposal has been submitted to the Kentucky
Supreme Court to address this issue.
-Revise the jury instructions typically given in capital cases to improve death
penalty juror understanding and comprehension of the law to be applied.
-Correct shortcomings of the Kentucky Racial Justice Act to ensure that the act
serves as an effective remedy for racial discrimination in death penalty cases.
The hallmark of our criminal justice system is that its process is fair and its
results are reliable and accurate. Our reversal rate undermines this hallmark.
These troubling issues in capital cases must be addressed now.
(source: Editorial, Kentucky.com)