SDN
Defending Liberty
Pursuing Justice
EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Kentucky Death Penalty Assessment Report
An Analysis of Kentucky’s Death Penalty Laws, Procedures, and Practices
“A system that takes life must first give justice.”
John J. Curtin, Jr., Former ABA President
December 2011
AMERICAN BAR ASSOCIATION
JBN
AMERICAN BAR ASSOCIATION
Defending Liberty
Pursuing Justice
EVALUATING FAIRNESS AND ACCURACY IN
STATE DEATH PENALTY SYSTEMS:
The Kentucky Death Penalty Assessment Report
An Analysis of Kentucky’s Death Penalty Laws, Procedures, and Practices
“A system that takes life must first give justice.”
John J. Curtin, Jr., Former ABA President
December 2011
AMERICAN BAR ASSOCIATION
The materials contained herein represent the assessment solely of the ABA Death Penalty
Moratorium Implementation Project and the Kentucky Death Penalty Assessment Team
and have not been approved by the House of Delegates or the Board of Governors of the
American Bar Association and, accordingly, should not be construed as representing the
policy of the American Bar Association.
These materials and any forms or agreements herein are intended for educational and
informational purposes only.
This document has been produced with the financial assistance of the European Union.
The contents of this report are the sole responsibility of the American Bar Association
and can under no circumstances be regarded as reflecting the position of the European
Union.
Significant portions of the research were performed on Westlaw courtesy of West Group.
Copyright 2011, American Bar Association
EXECUTIVE SUMMARY
I. INTRODUCTION: GENESIS OF THE ABA’S DEATH PENALTY ASSESSMENTS PROJECT
Fairness and accuracy together form the foundation of the American criminal justice system. As
the United States Supreme Court has recognized, these goals are particularly important in cases
in which the death penalty is sought. Our system cannot claim to provide due process or protect
the innocent unless it provides a fair and accurate system for every person who faces the death
penalty.
Over the course of the past thirty years, the American Bar Association (ABA) has become
increasingly concerned that capital jurisdictions too often provide neither fairness nor accuracy
in the administration of the death penalty. In response to this concern, on February 3, 1997, the
ABA called for a nationwide moratorium on executions until serious flaws in the system are
identified and eliminated. The ABA urges capital jurisdictions to (1) ensure that death penalty
cases are administered fairly and impartially, in accordance with due process, and (2) minimize
the risk that innocent persons may be executed.
In the autumn of 2001, the ABA, through the Section of Individual Rights and Responsibilities,
created the Death Penalty Moratorium Implementation Project (the Project). The Project collects
and monitors data on domestic and international death penalty developments, conducts analyses
of governmental and judicial responses to death penalty administration issues, publishes periodic
reports, encourages lawyers and bar associations to press for moratoriums and reforms in their
jurisdictions, convenes conferences to discuss issues relevant to the death penalty, and
encourages state government leaders to establish moratoriums, undertake detailed examinations
of capital punishment laws and processes, and implement reforms.
To assist the majority of capital jurisdictions that have not yet conducted comprehensive
examinations of their death penalty systems, the Project began in February 2003 to examine
several U.S. jurisdictions’ death penalty systems and preliminarily determine the extent to which
they achieve fairness and minimize the risk of executing the innocent. It undertook assessments
examining the administration of the death penalty in Alabama, Arizona, Florida, Georgia,
Indiana, Ohio, Pennsylvania, and Tennessee and released reports on these states’ capital
punishment systems from 2006 through 2007. A summary report was also published in 2007 in
which the findings of the eight reports completed to date were compiled. Due in large part to the
success of the state assessments produced in the eight jurisdictions described above, the Project
began a second round of assessments in late 2009. In addition to this report on Kentucky, the
Project also plans to release reports in, at a minimum, Missouri, Texas, and Virginia.
The assessments are not designed to replace the comprehensive state-funded studies necessary in
capital jurisdictions, but instead are intended to highlight individual state systems’ successes and
inadequacies. Past state assessment reports have been used as blueprints for state-based study
commissions on the death penalty, served as the basis for new legislative and court rule changes
on the administration of the death penalty, and generally informed decision-makers’ and the
public’s understanding of the problems affecting the fairness and accuracy of their state’s death
penalty system.
All of these assessments of state law and practice use as a benchmark the protocols set out in the
ABA Section of Individual Rights and Responsibilities’ 2001 publication, Death without J ustice:
A Guide for Examining the Administration of the Death Penalty in the United States (the
Protocols). While the Protocols are not intended to cover exhaustively all aspects of the death
penalty, they do cover seven key aspects of death penalty administration: defense services,
procedural restrictions and limitations on state post-conviction and federal habeas corpus
proceedings, clemency proceedings, jury instructions, an independent judiciary, racial and ethnic
minorities, and mental retardation and mental illness. Additionally, the Project added five new
areas to be reviewed as part of the assessments in 2006: preservation and testing of DNA
evidence, identification and interrogation procedures, crime laboratories and medical examiners,
prosecutors, and the direct appeal process.
Each assessment has been or is being conducted by a state-based assessment team. The teams
are comprised of or have access to current or former judges, state legislators, current or former
prosecutors, current or former defense attorneys, active state bar association leaders, law school
professors, and anyone else whom the Project felt was necessary. Team members are not
required to support or oppose the death penalty or a moratorium on executions.
The state assessment teams are responsible for collecting and analyzing various laws, rules,
procedures, standards, and guidelines relating to the administration of the death penalty. In an
effort to guide the teams’ research, the Project created an Assessment Guide that detailed the
data to be collected. The Assessment Guide includes sections on the following: (1) death-row
demographics, (2) DNA testing, and the location, testing, and preservation of biological
evidence, (3) law enforcement tools and techniques, (4) crime laboratories and medical examiner
offices, (5) prosecutors, (6) defense services during trial, appeal, and state post-conviction and
clemency proceedings; (7) direct appeal and the unitary appeal process, (8) state post-conviction
relief proceedings, (9) clemency, (10) jury instructions, (11) judicial independence, (12) racial
and ethnic minorities, and (13) mental retardation and mental illness.
The findings of each assessment team provide information on how state death penalty systems
are functioning in design and practice and are intended to serve as the bases from which states
can launch comprehensive self-examinations, impose reforms, or in some cases, impose
moratoria. Because capital punishment is the law in each of the assessment states and because
the ABA takes no position on the death penalty per se, the assessment teams focused exclusively
on capital punishment laws and processes and did not consider whether states, as a matter of
morality, philosophy, or penological theory, should have the death penalty.
This executive summary consists of a summary of the findings and proposals of the Kentucky
Death Penalty Assessment Team. The body of this Report sets out these findings and proposals
in more detail, followed by an Appendix. The Project and the Kentucky Death Penalty
Assessment Team have attempted to describe as accurately as possible information relevant to
the Kentucky death penalty. The Project would appreciate notification of any factual errors or
omissions in this Report so that they may be corrected in any future reprints.
II. HIGHLIGHTS OF THE REPORT
A. Overview of the Kentucky Death Penalty Assessment Team’s Work and Views
To assess fairness and accuracy in Kentucky’s death penalty system, the Kentucky Death Penalty
Assessment Team! researched the twelve issues that the ABA identified as central to the analysis
of the fairness and accuracy of a state’s capital punishment system. The Kentucky Death Penalty
Assessment Report devotes a chapter to each of the following areas: (1) overview of the
Commonwealth’s death penalty; (2) collection, preservation, and testing of DNA and other types
of evidence; (3) law enforcement identifications and interrogations; (4) crime laboratories and
medical examiner offices; (5) prosecutorial professionalism; (6) defense services; (7) the direct
appeal process; (8) state post-conviction proceedings; (9) clemency; (10) jury instructions; (11)
judicial independence; (12) treatment of racial and ethnic minorities; and (13) mental retardation
and mental illness.” Chapters begin with an introduction to provide a national perspective of the
issues addressed by each chapter, followed by a “Factual Discussion” of the relevant laws and
practices in Kentucky. The final section of each chapter, entitled “Analysis,” examines the
extent to which Kentucky is in compliance with the ABA Protocols.
While members of the Kentucky Assessment Team have varying perspectives about the death
penalty and the weight to be afforded to individual ABA Protocols contained in this Report, all
Assessment Team members agreed to use the ABA Protocols as a framework through which to
examine the death penalty in Kentucky.
It is the Assessment Team’s unanimous view that, as long as Kentucky imposes the death
penalty, it must be reserved for the worst offenders and offenses, ensure heightened due process,
and minimize risk of executing the innocent. To this end, Kentucky has made substantial strides
in several areas, including creation of a statewide public defender responsible for representing
the Commonwealth’s indigent capital defendants and death row inmates. Kentucky also has
sought to minimize risk of executing the innocent by adoption of a post-conviction DNA testing
statute, which permits a death row inmate to request testing at any time prior to execution.
Finally, Kentucky was the first state in the nation to adopt a Racial Justice Act, recognizing both
the historical unfairness in the application of the death penalty and a commitment to eliminating
racial and ethnic bias in the application of the death penalty in the Commonwealth.
The Assessment Team has concluded, however, that Kentucky fails to comply or only is in
partial compliance with many of the Protocols contained in this Report, and that many of these
shortcomings are substantial. The Team, therefore, unanimously agrees to endorse key proposals
that address these shortcomings. The next section highlights some of the most important
findings of the Team and is followed by a summary of its recommendations and observations.
' The membership of the Kentucky Death Penalty Assessment Team is included infra on page 3 of the Kentucky
Death Penalty Assessment Report.
This report is not intended to cover all aspects of a state’s capital punishment system, and, as a result, it does not
address a number of important issues, such as the treatment of death row inmates while incarcerated or method of
execution.
ili
B. Major Areas for Reform
The Kentucky Death Penalty Assessment Team has identified a number of areas in which
Kentucky’s death penalty system falls short in the effort to afford every capital defendant fair
and accurate procedures and minimize the risk of executing the innocent. While we have
identified a series of individual problems within Kentucky’s death penalty system, which
standing alone may not appear to be significant, we caution that their harms are cumulative. The
capital system has many interconnected parts; problems in one area may undermine sound
procedures in others. With this in mind, the Kentucky Death Penalty Assessment Team
unanimously agrees that the following areas are most in the need of reform:
Inadequate Protections to Guard Against Wrongful Convictions (Chapters 2, 3, 4). Kentucky
laws and procedures do not sufficiently protect the innocent, convict the guilty, and ensure the
fair and efficient enforcement of criminal law in death penalty cases.
e Evidence in criminal cases, including capital cases, is not required to be retained for as
long as the defendant remains incarcerated, despite the possibility of wrongful
conviction. Kentucky law and practice also permits destruction of evidence in a variety
of instances, including, in some cases, when the perpetrator remains at large (Chapter 2).
e¢ While the Commonwealth’s post-conviction DNA testing statute permits post-trial testing
of biological evidence prior to execution under some circumstances, the problem of lost
evidence significantly diminishes the utility of the statute. Death row inmates who are
otherwise eligible for testing under the statute have been denied a motion for relief
because evidence in their case is missing. Inmates also are required to comply with
stringent pleading requirements before any testing is granted. Courts must order testing
in only limited circumstances and can deny a death row inmate’s request for testing even
when the results may be exculpatory (Chapter 2).
e While there are over 400 law enforcement agencies in Kentucky, some of the
Commonwealth’s largest law enforcement agencies have no policies that are consistent
with the ABA Best Practices on eyewitness identifications and interrogations. In those
agencies that have adopted policies, the policies are not uniformly enforced. Full video-
or audio-recording of the entirety of custodial interrogations occurs in only a few of
Kentucky’s law enforcement agencies, even though such a policy helps ensure that
innocent parties are not held responsible for crimes they did not commit and also
significantly conserves scarce law enforcement and judicial resources (Chapter 3).
e Three of the six locations of the Kentucky State Police Forensic Laboratory (KSP
Laboratory) and one office of the statewide Medical Examiner (MEO) have voluntarily
obtained national accreditation. However, Kentucky does not require the accreditation of
its forensic laboratories, MEO, or any of the 120 county coroner offices. Other KSP
Laboratory branches or smaller law enforcement agencies conducting limited forensics
are not accredited by any national accrediting body. Kentucky also funds its medical
examiner and county coroner systems at levels far below the national average. Testing
backlogs persist at KSP Laboratory causing delays in all criminal cases. Finally, KSP
Laboratory’s continued affiliation with law enforcement requires the laboratory to
compete with other KSP divisions for a portion of the State Police's fixed budget and
causes non-law enforcement entities, like the Department of Public Advocacy and its
Innocence Project, to seek biological testing out-of-state (Chapter 4).
iv
Inconsistent and Disproportionate Capital Charging and Sentencing (Chapter 5).’ With fifty-
seven Commonwealth’s Attorneys offices in Kentucky, there are conceivably fifty-seven
different approaches to the decision to seek capital punishment. In some instances, it appears
that the Commonwealth's Attorney will charge every death-eligible case as a capital case. While
the vast majority of Commonwealth’s Attorneys may seek to exercise discretion in death penalty
cases to support the fair, efficient, and effective enforcement of law, there is no mechanism in
place to guide prosecutors in their charging decisions to support the even-handed, non-
discriminatory application of the death penalty across the Commonwealth.
Deficiencies in the Capital Defender System (Chapter 6). All Kentucky public defenders
handling capital cases retain caseloads that far exceed national averages and recommended
maximum caseloads. In some cases, Kentucky public defenders provide capital representation
while carrying caseloads of over 400 non-capital cases each year. Support staff members,
including investigators and mitigation specialists, are routinely overworked and underpaid,
carrying caseloads ranging from twelve to twenty-five capital cases at any given time. A 2011
study found that Kentucky public defenders who handle death penalty cases make 31% less than
similarly-experienced attorneys in surrounding states constituting the lowest average salaries of
examined jurisdictions. Furthermore, the hourly rates and maximum caps on compensation
available for contract counsel in death penalty cases are inadequate to ensure high quality legal
representation and are far below the rates available to attorneys performing contractual work for
the Commonwealth on civil matters. Low wages and compensation caps also may deter
individuals with the necessary qualifications from undertaking the demanding responsibilities
and complex nature of a death penalty case.
Furthermore, at least ten of the seventy-eight people sentenced to death since 1976 were
represented by defense counsel who were subsequently disbarred. While Kentucky’s public
defender agencies seek to enforce internal standards governing the proper provision of counsel in
all death penalty cases assigned to their agencies, Kentucky has not adopted any statewide
standards governing the qualifications and training of attorneys appointed to handle capital cases
at trial, on appeal, and during post-conviction proceedings. With only self-enforcement of
internal agency guidelines and without certification of all lawyers who undertake capital
representation, a real risk exists that capital defendants and death row inmates will be
represented by lawyers unqualified to handle the complexities and gravity of a capital case.
Inadequacies in Post-Conviction Review (Chapters 8, 13). Kentucky rules and practices may
impair adequate development and judicial consideration of death row inmates’ claims of
constitutional error. When an execution date is set prior to the expiration of the three-year
statute of limitations imposed for filing a post-conviction petition, it has the effect of
significantly curtailing the time that a death row inmate has to prepare and file his/her petition
for post-conviction relief. Inmates not under a death sentence do not face a similar time
constraint. Kentucky also does not authorize discovery in state post-conviction proceedings and
prohibits inmates from using the Kentucky Open Records Act to obtain materials possessed by
law enforcement that may be essential for establishing a death row inmate’s constitutional
claims. The lack of discovery during post-conviction review makes it all the more likely that
> See infra page vii on Kentucky agencies’ and entities’ participation in the Assessment process.
death row inmates will be unable to develop viable claims of constitutional error in light of the
truncated time period in which they must prepare their petitions. Furthermore, Kentucky post-
conviction courts typically do not authorize any funding for mental health experts to assist
potentially mentally retarded death row inmates to accurately determine and prove their mental
capacities.
Capital J uror Confusion (Chapter 10). Kentucky capital jurors are not always given adequate
guidance while undertaking the “awesome responsibility” of deciding whether another person
will live or die. A disturbingly high percentage of Kentucky capital jurors who were interviewed
by the Capital Jury Project failed to understand the guidelines for considering aggravating and
mitigating evidence. For example, 45.9% of jurors failed to understand that they could consider
mitigating evidence at sentencing, 61.8% failed to understand that they need not find mitigation
“beyond reasonable doubt,” and 83.5% of jurors did not understand that they need not have been
unanimous on findings of mitigation. Furthermore, due to confusion on the meaning of available
alternative sentences, Kentucky jurors may opt to recommend a sentence of death when they
otherwise would not.
Imposition of a Death Sentence on People with Mental Retardation or Severe Mental
Disability (Chapter 13). While the Commonwealth prohibited the execution of people with
mental retardation in 1990, Kentucky does not have adequate protections to ensure that death
sentences are not imposed or carried out on a defendant or death row inmate with mental
retardation. Kentucky’s statutory definition of mental retardation creates a bright-line maximum
IQ of seventy, which fails to comport with the modern scientific understanding of mental
retardation. Furthermore, Kentucky courts may require that a capital defendant have been IQ-
tested prior to the age of eighteen, which often places an unattainable burden on the offender
since such individuals have rarely taken standardized assessments of intelligence or adaptive
behavior functioning before adulthood. Finally, Kentucky’s procedural rules could permit a
death row inmate who is mentally retarded to be executed when the inmate failed to effectively
raise the issue of his/her mental retardation before trial.
However, Kentucky does not prohibit execution of offenders with mental disabilities similar to
mental retardation, such as dementia or traumatic brain injury, but which manifest after the age
of eighteen. Kentucky also does not prohibit imposition of a death sentence or execution of an
individual who, at the time of his/her offense, had a severe mental illness, disorder, or disability
that significantly impaired his/her capacity to appreciate the nature, consequences or
wrongfulness of his/her conduct, to exercise rational judgment in relation to conduct, or to
conform his/her conduct to the requirements of the law.
Lack of Data. Finally, there were also many issues regarding use of the death penalty in
Kentucky that the Assessment Team attempted to evaluate, but was unable to obtain sufficient
information to do so. The Assessment Team has encountered a great deal of difficulty in
obtaining data on all death-eligible cases in the Commonwealth, including those in which the
death penalty was sought, but not imposed, and those in which the death penalty could have been
sought, but was not. The lack of data collection and reporting on the overall use of capital
punishment renders it impossible for the Commonwealth to guarantee that such a system is
operating fairly, effectively, and efficiently. Specifically,
vi
e The Kentucky Supreme Court cannot engage in meaningful proportionality review to
determine if a death sentence is proportionate in comparison to similar cases and
offenders. It does not appear that the relevant data on capital charging practices has been
maintained to permit the Court to undertake a searching proportionality review. <A
thorough review requires the Court to consider cases in which a death sentence could
have been imposed, but was not, or cases in which a death sentence could have been
sought, but was not. The universe of cases currently examined by the Court during
proportionality review is too limited for it to ensure that Kentucky’s death penalty is
administered in a fully rational, non-arbitrary manner (Chapter 7).
e Kentucky cannot determine what effect, if any, its Racial Justice Act (KRJA) has had on
ameliorating racial discrimination in capital cases. While the Assessment Team applauds
the work that has been conducted by various Commonwealth entities investigating racial
discrimination within the criminal justice system, the KRJA appears to have a number of
restrictions limiting its effectiveness at identifying and remedying racial discrimination in
the administration of the death penalty. Without a statewide entity that collects data on
all death-eligible cases in the Commonwealth, Kentucky cannot determine the extent of
racial or geographic bias in its capital system (Chapter 12).
Finally, in order to complete the Kentucky Assessment Report, the Assessment Team sought
information from various Kentucky state agencies and entities. Information obtained from the
Office of the Governor, the Kentucky Court of Justice, Kentucky law enforcement, the state
crime laboratory and medical examiner's offices, public defenders, and many others greatly aided
us in the preparation of the Report. However, we sought, but were unable to obtain, information
from Commonwealth prosecutors regarding their role in the administration of the death penalty.
This lack of involvement is troubling given that prosecutors are the cornerstone of the death
penalty system. Prosecutors possess broad discretion to decide what crime to charge, whether to
seek the death penalty, and whether to negotiate and accept a plea agreement. The Assessment
Team was able to obtain little information on Kentucky prosecutors’ approaches to the decision
to seek the death penalty, how each office ensures compliance with discovery obligations to
protect against conviction of the innocent, and whether and how each office disciplines
prosecutors who engage in misconduct—particularly in serious cases where the defendant could
be executed. Commonwealth’s Attorney offices also may face many of the same resource
constraints experienced by other statewide entities. However, we were unable to obtain from
prosecutors information on their budgets, training, or compensation.
C. Kentucky Death Penalty Assessment Team Recommendations
As noted above, each chapter of this Report includes several ABA Recommendations or
“Protocols,” which the Kentucky Death Penalty Assessment Team used as a framework to
analyze Kentucky’s death penalty laws and procedures. While Assessment Team members
expressed divergent views about the weight placed on the various ABA Recommendations, the
entire Kentucky Death Penalty Assessment Team endorses several measures to bring the
Commonwealth in compliance with the ABA Recommendations, as well as state-specific
proposals, to ameliorate the problems identified throughout this Report.
vii
Prevention of Wrongful Convictions (Chapters 2, 3, 4, 5).
Kentucky must guarantee proper preservation of all biological evidence in capital cases
as long as the defendant remains incarcerated and must designate an appropriate
governmental entity responsible for the proper preservation of all evidence in a criminal
case.
Kentucky courts should order DNA testing of biological evidence if the results of testing
or retesting of the evidence could create a reasonable probability that the person is
innocent of the offense, did not have the culpability necessary to subject the person to the
death penalty, or did not engage in aggravating conduct. A stay of execution should be
ordered during the pendency of a petition for post-conviction DNA testing.
Kentucky should adopt legislation that requires accreditation of any forensic science
laboratory and certification for all forensic specialists operating in the Commonwealth.
Furthermore, the Commonwealth’s crime laboratory system should be housed as a
separate department under the Justice and Public Safety Cabinet, operating wholly
independent of the Kentucky State Police. By creating a forensic laboratory system
independent of law enforcement, the Commonwealth can reduce undue external or
internal pressure, which could otherwise affect the integrity, validity, and reliability of
forensic analysis.
Kentucky should adopt the ABA’s Practices for Promoting the Accuracy of Eyewitness
Identification Procedures as statewide policy. Kentucky law enforcement agencies
should also incorporate advances in social science into their guidelines, particularly given
the lack of uniformity among the Commonwealth’s law enforcement agencies. Kentucky
also should require recording of the entirety of custodial interviews, particularly in
homicide investigations, and should include an appropriate remedy for law enforcement’s
failure to record. Full recordings of custodial interviews also would foreclose the need to
litigate in many cases whether a confession had been legally obtained.
The Kentucky Law Enforcement Council should require law enforcement training school
curricula to include specific training on the proper collection and preservation of
biological evidence. The Commonwealth should require that all law enforcement
agencies involved in the investigation of potential capital cases be accredited in order to
ensure that each agency has adopted and enforces written policies governing the
preservation of biological evidence. These policies should ensure that evidence is
preserved for as long as the person remains incarcerated.
The Kentucky Rules of Court should be amended to provide a jury instruction, whenever
identity is a central issue at trial, on the factors to be considered in gauging eyewitness
identification.
Kentucky prosecutors should be required to provide open file discovery at trial and
during post-conviction proceedings.
Kentucky should adopt a procedure whereby a criminal trial court shall conduct, at a
reasonable time prior to a capital trial, a conference with the parties to ensure that they
are fully aware of their respective disclosure obligations under applicable discovery rules,
statutes, ethical standards, and the federal and state constitutions and to offer the court’s
assistance in resolving disputes over disclosure obligations.
viii
Improvement of Defense Services (Chapter 6).
Kentucky should adopt statewide standards governing the qualifications and training
required of defense counsel and ancillary services in capital trial, appeal, and post-
conviction proceedings in conformance with the ABA Guidelines on the Appointment and
Performance of Defense Counsel in Capital Cases (ABA Guidelines). This requires that
the caseload of any public defender who undertakes capital representation must be
limited and sufficient funding made available to support the use of needed investigative,
expert, and other ancillary services during all stages of the proceedings. Kentucky also
should designate the Department of Public Advocacy as the appointing authority for
representation in death penalty cases and ensure that it is equipped with the resources to
certify the qualifications and monitor the performance of all attorneys who provide
representation in capital cases.
Kentucky should provide additional funding to ensure defense counsel who undertake
representation of an indigent capital defendant or death row inmate are compensated at a
rate commensurate with the salary scale of prosecutors’ offices in the jurisdiction, as set
forth in the ABA Guidelines. Kentucky also should ensure sufficient funding to the
public defender agencies so that the public defender may remove the compensation cap
placed on payments to counsel who undertake representation of an indigent capital
defendant on a contractual basis. Hourly rates available for contract counsel should be
representative of the prevailing rates for private counsel sufficient to attract individuals
with the necessary qualifications to undertake the demanding responsibilities of a death
penalty case.
Kentucky law should guarantee the assistance of counsel to a death row inmate during the
claim development stage of post-conviction and clemency proceedings.
Ensuring Proportionality in Capital Charging and Sentencing (Chapters 5, 7).
Kentucky should adopt guidelines governing the exercise of prosecutorial discretion in
death penalty cases. The Attorney General should promulgate these guidelines, in
consultation with experts on capital punishment—including prosecutors, defense
attorneys, and judges—in order to ensure that each decision to seek the death penalty
occurs within a framework of consistent and even-handed application of Kentucky’s
capital sentencing laws. Each Commonwealth’s Attorney office must adopt policies for
implementation of the guidelines, subject to approval by the Attorney General. If,
however, an office fails to promulgate and maintain such a policy, the Attorney General
shall set the policy for the office.
The Kentucky Supreme Court should employ a more searching sentencing review in
capital cases. This review should consider not only other death penalty cases but also
cases in which the death penalty was sought but not imposed or could have been sought
but was not.
Kentucky should establish a statewide clearinghouse to collect data on all death-eligible
cases, including data on the race of defendants and victims, on the circumstances of the
crime, and on all aggravating and mitigating circumstances. These data should be made
available to the Kentucky Supreme Court for use in conducting meaningful
proportionality review and to prosecutors for use in making charging decisions and
setting charging guidelines. Kentucky must designate an entity responsible for the
ix
Error Correction During Post-Conviction Review (Chapters 8, 13). Kentucky should reform its
laws, procedures, and practices to permit the adequate development and judicial consideration of
claims of constitutional error.
e Kentucky should adopt a rule or law requiring trial courts to hold an evidentiary hearing
with respect to all claims in capital post-conviction proceedings, absent clear evidence
that the claim is frivolous or not supported by existing law or that the record undisputedly
rebuts the claim.
e Kentucky should permit adequate time for counsel to fully research and prepare all
meritorious post-conviction claims at least equivalent to that afforded to inmates not
awaiting execution.
e Kentucky should amend its statutes and court rules to permit inmates to obtain
meaningful discovery to better develop the factual bases of their claims prior to filing a
post-conviction motion or petition. The Commonwealth must amend its Open Records
Act to allow these petitioners to use the public records laws to obtain materials in support
of their post-conviction claims. Kentucky trial courts should authorize funding for
investigative, mitigation, and expert services to assist in the claim development stage of a
death row inmate’s post-conviction petition.
e Kentucky should provide a mechanism for a death row inmate to file a second or
successive petition for post-conviction relief permitting the court to review the inmate’s
claim of mental retardation, or other issue of constitutional magnitude, unless the inmate
has knowingly and intelligently waived the constitutional claim.
e Kentucky’s Rules of Criminal Procedure should be amended to clarify that any
constitutional error found harmless must be found harmless beyond a reasonable doubt,
in conformance with Talbott v. Commonwealth.
Gubernatorial Clemency Powers (Chapter 9). Given that clemency is the final safeguard
available to evaluate claims that may not have been presented to or decided by the courts, as well
as to evaluate the fairness and judiciousness of a death sentence, death row inmates petitioning
for clemency should be guaranteed counsel. Moreover, the Commonwealth should adopt
specific procedures that should be followed for application and consideration of a death row
inmate’s petition for clemency. No impediment, such as denial of access to prison officials,
should be erected by the Commonwealth to thwart inmates’ ability to develop and present a
clemency petition. Furthermore, Kentucky Governors should exercise their ability to empower
the Parole Board to issue a recommendation in capital clemency cases, given the expertise of the
Board, and assuming it will use procedures at least as transparent as those available in non-
capital cases.
Improved J uror Instruction and Comprehension (Chapter 10). Given the documented evidence
of confusion of Kentucky jurors regarding their roles and responsibilities in capital cases
e Kentucky must revise the instructions typically given in capital cases. Kentucky should
commission attorneys, judges, linguists, social scientists, psychologists, and jurors to
revise the instructions as necessary to ensure that jurors understand applicable law and
Kentucky trial courts also should permit, upon the defendant’s request during the
sentencing phase, parole officials or other knowledgeable witnesses to testify about
parole practices in the Commonwealth to clarify jurors’ understanding of alternative
sentences; and
Kentucky capital jurors should be specifically instructed that a mental disorder or
disability is a mitigating, not an aggravating factor, that evidence of mental disability
should not be relied upon to conclude that the defendant represents a future danger to
society, and that jurors be instructed to distinguish between the affirmative defense of
insanity and a defendant’s subsequent reliance on similar evidence to demonstrate a
mental disorder or disability as a mitigating factor.
Racial and Ethnic Minorities (Chapter 12).
Shortcomings of the Kentucky Racial Justice Act (KRJA) must be fixed so that the Act
serves as an effective remedy for racial discrimination in death penalty cases. This
includes
0 Retroactive application so that the provisions of the KRJA are available to inmates
who were sentenced to death prior to the Act’s adoption in 1998;
0 Availability of the KRJA for claims of racial discrimination affecting the decision to
impose the death penalty;
0 Application of the KRJA on appeal and during post-conviction proceedings;
Oo Elimination of the high burden of proof imposed by the KRJA which currently
requires petitioners to prove racial discrimination by “clear and convincing
evidence”; and
0 Elimination of the requirement that a KRJA petitioner prove racial discrimination in
his/her individual case as such evidence will almost never be overt; instead, relief
under the Act also should be available if the capital defendant or death row inmate is
able to demonstrate that racial considerations played a significant part in the decision
to seek or impose a death sentence in the county, judicial district, or in the
Commonwealth.
Kentucky should commission an evaluation of the effectiveness of the KRJA at
remedying racial discrimination in capital charging and sentencing.
Treatment of Persons with Mental Retardation and Severe Mental Illness (Chapter 13).
The Commonwealth should adopt legislation defining mental retardation in conformance
with the American Association on Intellectual and Developmental Disabilities’ definition,
which should (1) reject a bright-line IQ maximum for a determination of mental
retardation; (2) calculate IQ scores by incorporating the five-point margin of error and the
Flynn effect; and (3) permit presentation of other evidence of adaptive behavior deficits
that occurred before the defendant reached age eighteen, particularly where no IQ testing
had been conducted during the defendant’s childhood, in order for the defendant to prove
s/he has mental retardation.
Kentucky should forbid imposition of a death sentence on offenders with severe mental
illness. The prohibition is applicable to offenders who, at the time of the offense, had
significantly subaverage limitations in both their general intellectual functioning and
xi
e Kentucky should adopt a rule or law providing that, if a court finds that a prisoner under
sentence of death who wishes to forego or terminate post-conviction proceedings has a
mental disorder or disability that significantly impairs his/her capacity to make a rational
decision, the court shall permit a “next friend” acting on the prisoner’s behalf to initiate
or pursue available remedies to set aside the death sentence.
Kentucky legislators previously have introduced legislation that would exempt severely mentally
ill individuals from the death penalty based upon the Recommendations contained in this Report,
as well as permit a tolling of the statute of limitations in post-conviction cases due to a death row
inmate’s mental incompetence. The Kentucky Assessment Team recommends that the
Commonwealth adopt such legislation.
D. Final Thoughts and Recommendations
The Kentucky Assessment Team examined all death sentences imposed in the Commonwealth
since 1976. As of November 2011, seventy-eight people have been sentenced to death. Fifty-
two of these individuals have had a death sentence overturned on appeal by Kentucky or federal
courts, or been granted clemency. This is an error rate of approximately sixty percent.
Furthermore, capital prosecutions occur in far more cases than result in death sentences. This
places a significant judicial and financial burden on Commonwealth courts, prosecutors,
defenders, and the criminal justice system at large, to treat many cases as death penalty cases,
despite the fact that cases often result in acquittal, conviction on a lesser charge, or a last minute
agreement to a sentence less than death.
This calls into serious question whether the Commonwealth’s resources are well-spent on the
current error-prone nature of the death penalty in Kentucky. Budget shortfalls have undoubtedly
compounded the problem, resulting in furloughs and budget cuts to the courts, prosecutors!
offices, and defenders’ offices across the Commonwealth in the last few years. This will
inevitably lead to greater risk of error. Finally, actors in the criminal justice system must expend
an extraordinary amount of time prosecuting, defending, and adjudicating capital cases as
compared to other criminal and civil cases. This contributes to burdensome caseloads and
clogged dockets, affecting the quality of justice administered to all Kentuckians.
Conclusion
Kentucky undoubtedly has made progress in seeking to achieve fairness and accuracy in its
administration of the death penalty, by, for example, establishing a statewide capital defender
xii
and adopting of a Racial Justice Act. However, serious problem areas persist in the operation of
the death penalty in Kentucky.
The Kentucky Assessment Team is concerned about the expenditure of Commonwealth
resources to administer what the Assessment Team has found to be a system with insufficient
safeguards to ensure fairness and prevent execution of the innocent. The gravity and breadth of
the issues summarized above and described in detail throughout this Report compel the
Assessment Team to recommend a temporary suspension of executions until the issues identified
in this Report have been addressed and rectified. Through this temporary suspension, all
branches of the Commonwealth’s government will be better able to examine thoughtfully and
thoroughly these concerns, implement the necessary reforms, and ensure the fairness and
accuracy of its death penalty system.
xiii
TI]. SUMMARY OF THE REPORT
Chapter One: An Overview of Kentucky’s Death Penalty System
In this chapter, we examined the demographics of Kentucky’s death row, the statutory evolution
of Kentucky’s death penalty scheme, and the progression of an ordinary death penalty case
through Kentucky’s death penalty system from arrest to execution.
Chapter Two: Collection, Preservation, and Testing of DNA and Other Types of Evidence
DNA testing has proved to be a useful law enforcement tool to establish guilt as well as
innocence. The availability and utility of DNA testing, however, depends on the state’s laws and
on its law enforcement agencies’ policies and procedures concerning the collection, preservation,
and testing of biological evidence. In this chapter, we examined Kentucky’s laws, procedures,
and practices concerning not only DNA testing, but also the collection and preservation of all
forms of biological evidence, and we assessed whether the Commonwealth complies with the
ABA’s policies on the collection, preservation, and testing of DNA and other types of evidence.
A summary of Kentucky’s overall compliance with the ABA’s policies on the collection,
preservation, and testing of DNA and other types of evidence is illustrated in the following
chart.*
Collection, Preservation, and Testing of DNA and Other Types of Evidence
Compliance In Partially in, Notin Insufficient | Not Applicable
Compliance | Compliance’ | Compliance | Information
to Determine
Statewide
Recommendation Compliance®
Recommendation #1: The State should
preserve all biological evidence for as long x
as the defendant remains incarcerated.
Recommendation #2: Defendants and
inmates should have access to biological
evidence, upon request, and be able to seek x
appropriate relief notwithstanding any other
provision of the law.
Recommendation #3: Law enforcement
agencies should establish and enforce x
written procedures and policies governing
the preservation of biological evidence.
4 Where necessary, the Recommendations contained in this chart and all subsequent charts were condensed to
accommodate spatial concerns. The condensed recommendations are not substantively different from the
recommendations contained in the “Analysis” section of each chapter.
Given that a majority of the ABA’s Recommendations are composed of several parts, we used the term
“partially in compliance” to refer to instances in which Kentucky meets a portion, but not all, of the
Recommendation. This definition applies to all subsequent charts contained in this Executive Summary.
° In this publication, the Project and the Assessment Team have attempted to note as accurately as possible
information relevant to the Kentucky death penalty. The Project would welcome notification of any omissions or
factual errors in this Report so that they may be corrected in any future reprints.
xiv
Collection, Preservation, and Testing of DNA and Other Types of Evidence (C ont’ d)
Compliance In Partially in Notin Insufficient Not
Compliance | Compliance’ | Compliance | Information | Applicable
to Determine
Statewide
Compliance*
Recommendation
Recommendation #4: Provide adequate
funding to ensure the proper preservation xX
and testing of biological evidence.
The Kentucky Assessment Team on the Death Penalty commends the Commonwealth for
adopting legislation which permits capital defendants and death row inmates to obtain post-
conviction DNA testing on available biological evidence. Such testing should be granted when
the inmate is able to show that a reasonable probability exists that s/he would have received a
more favorable sentence should DNA testing yield favorable results.
In order for Kentucky to protect against wrongful conviction or execution of an inmate who
should not have been subject to the death penalty, it is imperative that the Commonwealth
properly preserve all biological evidence in capital cases. Kentucky, however, does not preserve
evidence for as long as the defendant remains incarcerated, and there have been a number of
instances where evidence sought for retesting during post-conviction proceedings has been lost
or unavailable. In one case, a death row inmate was denied testing of two items admitted as
evidence during the original trial because the items had gone missing and could not be found
after a “substantial search” by the Commonwealth.
In fact, under some circumstances, Kentucky permits the destruction of biological evidence in
criminal cases both before and after a death row inmate is convicted, irrespective of the value
that such evidence could possess to solve cold cases or determine, with certainty, the guilt or
innocence of a death row inmate awaiting execution. The possibility that evidence will be lost or
misplaced may partly be attributed to the lack of uniform requirements on proper preservation,
resulting in evidence storage in law enforcement facilities, courthouses, and even safe deposit
boxes. Kentucky also appears to insufficiently fund evidence preservation and analysis. In some
instances, the Commonwealth has requested the destruction of evidence because it is unable to
store the evidence. The Kentucky State Police Forensic Laboratory also has extensive backlogs
of DNA evidence waiting to be tested and analyzed.
Chapter Three: Law Enforcement Identifications and Interrogations
Eyewitness misidentifications and false confessions are two of the leading causes of wrongful
convictions. Eyewitness misidentifications and false confessions can mislead law enforcement
Given that a majority of the ABA’s Recommendations are composed of several parts, we used the term
“partially in compliance” to refer to instances in which Kentucky meets a portion, but not all, of the
Recommendation. This definition applies to all subsequent charts contained in this Executive Summary.
In this publication, the Project and the Assessment Team have attempted to note as accurately as possible
information relevant to the Kentucky death penalty. The Project would welcome notification of any omissions or
factual errors in this Report so that they may be corrected in any future reprints.
XV
into focusing their efforts on one person, too often resulting in an erroneous conviction while the
actual perpetrator remains unaccountable. In order to reduce the number of convictions of
innocent persons and to ensure the integrity of the criminal justice process, the rate of eyewitness
misidentifications and of false confessions must be reduced. In this chapter, we reviewed
Kentucky’s laws, procedures, and practices on law enforcement identifications and
interrogations, and we assessed whether those laws, procedures, and practices comply with the
ABA’s policies on law enforcement identifications and interrogations.
A summary of Kentucky’s overall compliance with the ABA’s policies on law enforcement
identifications and interrogations is illustrated in the chart below.
Law Enforcement Identifications and Interrogations
Compliance In Partially in Notin Insufficient Not
Compliance | Compliance | Compliance | Information to | Applicable
Determine
Statewide
Recommendation Compliance
Recommendation #1: Law enforcement
agencies should adopt specific guidelines
for conducting lineups and photospreads
in a manner that maximizes their likely
accuracy. Every set of guidelines should
address at least the subjects, and should x
incorporate at least the social scientific
teachings and best practices, set forth in
the American Bar Association's Best
Practices for Promoting the Accuracy of
Eyewitness Identification Procedures.
Recommendation #2: Law enforcement
officers and prosecutors should receive
periodic training on how to implement
the guidelines for conducting lineups and x
photospreads, as well as training on non-
suggestive techniques for interviewing
witnesses.
Recommendation #3: Law enforcement
agencies and prosecutors’ offices should
periodically update the guidelines for
conducting lineups and photospreads to Oe
incorporate advances in social scientific
research and the continuing lessons of
practical experience.
Recommendation #4: Video-record the
entirety of custodial interrogations of
crime suspects at police precincts,
courthouses, detention centers, or other x
places where suspects are held for
questioning, or, where video-recording is
impractical, audio-record the entirety of
such custodial interrogations.
Recommendation #5: Ensure adequate
funding for the proper development,
implementation, and updating of policies xX
and procedures relating to identifications
and interrogations.
xvi
Law Enforcement Identifications and Interrogations (C ont’ d)
Compliance In Partially in Notin Insufficient Not
= Compliance | Compliance | Compliance | Information | Applicable
* to Determine
Recommendation Stoeelde
Compliance
Recommendation #6: Courts should
have the discretion to allow a properly
qualified expert to testify both pre-trial xX
and at trial on the factors affecting
eyewitness accuracy.
Recommendation #7: Whenever there
has been an identification of the
defendant prior to trial, and identity is a
central issue in a case tried before a jury, X
courts should use a specific instruction,
tailored to the needs of the individual
case, explaining the factors to be
considered in gauging lineup accuracy.
Recommendation #8: Every law
enforcement agency should provide
training programs and disciplinary X
procedures to ensure that investigative
personnel are prepared and accountable
for their performance, respectively.
Recommendation #9: Ensure that there
is adequate opportunity for citizens and X
investigative personnel to report
misconduct in investigations.
The Commonwealth of Kentucky has undertaken certain measures that likely reduce the risk of
inaccurate eyewitness identifications and false confessions. For example, law enforcement
officers in Kentucky are required to complete a minimum of 640 hours of basic training and to
complete forty hours of annual in-service training, which includes instruction on sound
identification and interrogation techniques. In addition, at least six law enforcement agencies in
Kentucky regularly record custodial interrogations. Furthermore, Kentucky trial courts have the
discretion to admit expert testimony regarding the accuracy of eyewitness identifications.
Despite these measures, Kentucky does not require law enforcement agencies to adopt specific
guidelines on identifications and interrogations consistent with the ABA Best Practices. There
are no statewide standards governing how lineups and photospreads should be conducted.
Absent statewide policies or best practices, in some cases, there are also no internal law
enforcement agency guidelines as to how lineups and photospreads should be conducted,
including in some of the Commonwealth’s largest law enforcement agencies.
Furthermore, full video- or audio-recording of custodial interrogations occurs in only a few law
enforcement agencies within the Commonwealth, despite the fact that such a policy both helps
ensure that innocent parties are not held responsible for crimes they did not commit and
significantly conserves scarce law enforcement and judicial resources. Even when law
enforcement agencies have promulgated guidelines on the issues addressed by the ABA Best
Practices, the stated policy does not fully encompass all elements of the best practice meant to
xvii
protect against wrongful conviction. For example, in agencies where recording of custodial
interviews does take place, it commences only when a suspect makes a confession rather than for
the entirety of the custodial interview. Kentucky also prohibits use of a jury instruction to
explain the factors to be considered in gauging lineup accuracy.
There are over 400 law enforcement agencies responsible for promulgating and enforcing
policies to bring Kentucky into compliance with the ABA Recommendations, many of which are
in small, rural areas. However, when the Team focused on the policies and practices of the
largest law enforcement agencies in the Commonwealth that are most likely to investigate
capital-eligible offenses—the Kentucky State Police, the Lexington Division of Police, and the
Louisville Metro Police Department—it found that these agencies have no policies at all or, in
those that have adopted policies, the policies are not uniformly enforced consistent with the ABA
Best Practices.
Chapter Four: Crime Laboratories and Medical Examiner Offices
With courts’ increased reliance on forensic evidence and the questionable validity and reliability
of recent tests performed at a number of unaccredited and accredited crime laboratories across
the nation, the importance of crime laboratory and medical examiner office accreditation,
forensic and medical examiner certification, and adequate funding of these laboratories and
offices cannot be overstated. In this chapter, we examined these issues as they pertain to
Kentucky and assessed whether Kentucky’s laws, procedures, and practices comply with the
ABA’s policies on crime laboratories and medical examiner offices.
A summary of Kentucky’s overall compliance with the ABA’s policies on crime laboratories and
medical examiner offices is illustrated in the following chart.
Crime Laboratories and Medical Examiner Offices
, In Partially in Notin Insufficient Not
Compliance Compliance | Compliance } Compliance | Information | Applicable
to Determine
Recommendation Statewide
Compliance
Recommendation #1: Crime laboratories
and medical examiner offices should be
accredited, examiners should be certified, and x
procedures should be standardized and
published to ensure the validity, reliability,
and timely analysis of forensic evidence.
Recommendation #2: Crime laboratories
and medical examiner offices should be x
adequately funded.
The Commonwealth of Kentucky does not require the accreditation of its forensic laboratories.
However, since 2005, three of the six locations of the Kentucky State Police Forensic Laboratory
(KSP Laboratory) have voluntarily obtained accreditation by the American Society of Crime
Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) under its Legacy
xviil
Accreditation Program. ASCLD/LAB now only grants new accreditation under its more
rigorous International Accreditation Program and KSP Laboratory has submitted an application
for accreditation under the International Program. While KSP Laboratory seeks to limit law
enforcement involvement with forensic analysis, continued affiliation of the Commonwealth’s
only forensic laboratory with law enforcement causes KSP Laboratory to compete with other
Kentucky State Police divisions for a portion of the State Police’s fixed budget and causes non-
law enforcement entities, like the Department of Public Advocacy and its Innocence Project, to
seek biological testing out-of-state.
Like crime laboratories, Kentucky does not require accreditation of medical examiner offices or
coroner offices. While one of the four offices of the statewide Medical Examiner Office (MEO)
has obtained accreditation by the National Association Medical Examiners, none of the
Commonwealth’s 120 coroner offices has obtained voluntary accreditation.
Kentucky law requires certification of some, but not all, forensic analysts involved in the
investigation of a capital case. However, according to KSP Laboratory, personnel at each of the
agency’s six crime laboratories possess a degree and specialized training relevant to his/her
laboratory specialty. Certification is required of medical examiners; however, Kentucky does
not impose any certification requirements on elected coroners or forensic laboratory analysts and
technicians. Medical licensing is not required of medical examiners or coroners, and only four
of the 120 elected coroners and four of the 313 deputy coroners are licensed physicians.
Testing backlogs in KSP Laboratory persist, despite the infusion of federal grant money to
diffuse the problem year after year. Resource limitations are also evidenced by the MEO’s
inability to apply for accreditation of all four of its offices, as well as the MEO’s inability to
make needed upgrades to its facilities. Kentucky also funds its medical examiner and coroner
systems below national averages.
Chapter Five: Prosecutorial Professionalism
The prosecutor plays a critical role in the criminal justice system. The character, quality, and
efficiency of the whole system is shaped in great measure by the manner in which the prosecutor
exercises his/her broad discretionary powers, especially in capital cases, where prosecutors have
enormous discretion in deciding whether or not to seek the death penalty.
In this chapter, we examined Kentucky’s laws, procedures, and practices relevant to
prosecutorial professionalism and assessed whether they comply with the ABA’s policies on
prosecutorial professionalism.
A summary of Kentucky’s overall compliance with the ABA’s policies on prosecutorial
professionalism is illustrated in the following chart.
xix
Prosecutorial Professionalism
7" In Partially in Notin Insufficient Not
Compliance: [ll Gompliance:| ‘Compliance | Compliance | Information, | Applicable
to Determine
F Statewide
Recommendation Compliance
Recommendation #1: Each prosecutor’s office
should have written polices governing the exercise X
of prosecutorial discretion to ensure the fair,
efficient, and effective enforcement of criminal law.
Recommendation #2: Each prosecutor’s office
should establish procedures and policies for
evaluating cases that rely on eyewitness X
identification, confessions, or the testimony of
jailhouse snitches, informants, and other witness
who receive a benefit.
Recommendation #3: Prosecutors should fully and
timely comply with all legal, professional, and
ethical obligations to disclose to the defense
information, documents, and tangible objects and xX
should permit reasonable inspection, copying,
testing, and photographing of such disclosed
documents and tangible objects.
Recommendation #4: Each jurisdiction should
establish policies and procedures to ensure that
prosecutors and others under the control or
direction of prosecutors who engage in misconduct
of any kind are appropriately disciplined, that any xX
such misconduct is disclosed to the criminal
defendant in whose case it occurred, and that the
prejudicial impact of any such misconduct is
remedied.
Recommendation #5: Prosecutors should ensure
that law enforcement agencies, laboratories, and
other experts under their direction or control are xX
aware of and comply with their obligation to inform
prosecutors about potentially exculpatory or
mitigating evidence.
Recommendation #6: The jurisdiction should
provide funds for the effective training, professional
development, and continuing education of all x
members of the prosecution team, including
training relevant to capital prosecutions.
The Kentucky Assessment Team was unable to determine whether the Commonwealth complies
with several of the Recommendations contained in this chapter. The Kentucky Assessment
Team submitted a survey to the Kentucky Prosecutors Advisory Council (Council) requesting
that the survey be distributed to Kentucky’s fifty-seven elected Commonwealth’s Attorneys.
The survey requested general data regarding the death penalty in each prosecutor’s jurisdiction,
as well information on training and qualification requirements of prosecutors who handle capital
cases, funding and budget limitations, and capital charging and discovery practices. The Council
declined to provide information, stating that the Council had voted “1. to address the ABA study
as the representative body of the Commonwealth’s prosecutors; 2. not to circulate the study to
the Commonwealth’s prosecutors; and 3. not to provide responses to the survey questions.”
XX
After receiving this response, the Kentucky Assessment addressed all further inquiries to the
Council and subsequent efforts to obtain information from the Council were unsuccessful.
Kentucky imposes no requirement on Commonwealth prosecutors to maintain written policies
governing the exercise of prosecutorial discretion in capital cases, nor must prosecutors maintain
policies for evaluating cases relying upon eyewitness identification, confessions, or jailhouse
snitch testimony—evidence that constitutes some of the leading causes of wrongful conviction.
Death sentences imposed in cases in which the prosecution has significantly relied upon this sort
of evidence underscores the need for prosecutors to adopt policies or procedures for evaluating
the reliability of such evidence.
While the vast majority of prosecutors are ethical, law-abiding individuals who seek justice, our
research revealed inefficient and disparate charging practices among some Commonwealth’s
Attorneys, as well as instances of reversible error due to prosecutorial misconduct or error in
death penalty cases. In addition, the large number of instances in which the death penalty is
sought as compared to the number of instances in which a death sentence is actually imposed
calls into question as to whether current charging practices ensure the fair, efficient, and effective
enforcement of criminal law. This places a significant burden on Commonwealth courts,
prosecutors, and defenders to treat as capital many cases that will never result in a death
sentence, taxing the Commonwealth’s limited judicial and financial resources. In 2007, for
example, Kentucky’s public defender agencies reportedly undertook representation in ninety-
seven death penalty cases. However, in the over thirty years since Kentucky reinstated the death
penalty, Kentucky courts have sentenced to death only seventy-eight defendants, and only three
executions have taken place in the Commonwealth. There is also geographic disparity with
respect to capital charging practices and conviction rates in Kentucky. Since 2003, fifty-three
percent of Fayette County murder cases have gone to trial compared to twenty-five percent in
Jefferson County.
Kentucky has erected a framework that requires prosecutors to fully and timely disclose to the
defense all information, documents, and tangible objects before and during a capital trial.
However, some Kentucky prosecutors still fail to comply with discovery requirements.
Moreover, the lack of discovery in post-conviction proceedings impedes the ability of death row
inmates’ to present viable claims of innocence as such individuals may be unable to learn of
possible exculpatory information that was not disclosed at trial by the prosecution—even if such
information was not disclosed inadvertently.
Finally, the high percentage of reversals and citations of prosecutorial misconduct or error in
death penalty cases acutely demonstrates the need for appropriate discipline to deter and prevent
reoccurrence of such conduct, particularly when a life is at stake. Of the seventy-eight persons
sentenced to death in the Commonwealth since the reinstatement of the death penalty, at least
fifty defendants’ death sentences have been overturned by Kentucky state or federal courts. Of
these fifty reversals, fifteen have been based, in whole or in part, on prosecutorial misconduct or
error. The instance of reversible error reinforces the need for effective training and professional
development of death penalty prosecutors. However, it appears that Kentucky’s recent and
ongoing fiscal crisis will adversely affect the availability of funds for this purpose.
xxi
Chapter Six: Defense Services
Effective capital case representation requires substantial specialized training and experience in
the complex laws and procedures that govern a capital case, full and fair compensation to
lawyers who undertake capital cases, and sufficient resources for investigators and experts.
States must address counsel representation issues in a way that will ensure that all capital
defendants receive effective representation at all stages of their cases as an integral part of a fair
justice system. In this chapter, we examined Kentucky’s laws, procedures, and practices relevant
to defense services and assessed whether they comply with the ABA’s policies on defense
services.
A summary of Kentucky’s overall compliance with the ABA’s policies on defense services is
illustrated in the following chart.
Defense Services
Compliance In Partially in Notin Insufficient Not
Compliance | Compliance | Compliance | Information | Applicable
to Determine
= Statewide
Recommendation Compliance
Recommendation #1: Guideline 4.1 of the ABA
Guidelines on the Appointment and Performance
of Defense Counsel in Death Penalty Cases (ABA xX
Guidelines)—The Defense Team and Supporting
Services
Recommendation #2: Guideline 5.1 of the ABA
Guidelines—Qualifications of Defense Counsel
Recommendation #3: Guideline 3.1 of the ABA
Guidelines—Designation of a Responsible
Agency
Recommendation #4: Guideline 9.1 of the ABA
Guidelines—Funding and Compensation
Recommendation #5: Guideline 8.1 of the ABA
Guidelines—Training
|r) Ps | s
Kentucky is one of only eleven states that provide representation to capital defendants through a
statewide public defender system. Specialized capital units within the Commonwealth’s
statewide public defender agencies—the Department of Public Advocacy (DPA) and the
Louisville Metro Public Defender’s Office (Metro Defender)—coupled with these agencies’
monitoring of the qualifications and performance of capital counsel under their supervision,
significantly improves the quality of representation available to Kentucky’s indigents in death
penalty cases. The Commonwealth’s public defender agencies seek to voluntarily comply with
several components of the ABA Guidelines on the Appointment and Performance of Defense
Counsel in Death Penalty Cases (ABA Guidelines), for example:
e DPA and the Metro Defender appoint two attorneys to each indigent capital defendant
during pre-trial proceedings and continue to provide representation to death row inmates
xxii
at trial, direct appeal, state post-conviction and federal habeas proceedings, clemency,
and through execution.
e Counsel for an indigent capital defendant may seek expert, investigative, and other
ancillary professional services through ex parte proceedings and may hire experts and
investigators who are independent of the Commonwealth.
e Approximate parity exists between death penalty prosecutors and public defenders in
Jefferson County. Likewise, approximate parity exists between the Attorney General and
the Public Advocate.
Although the provision of counsel for indigent capital defendants and death row inmates in the
Commonwealth is to be commended, Kentucky’s system nonetheless falls short of complying
with the ABA Guidelines for a number of reasons:
e While Kentucky public defender agencies seek to comply with the ABA Guidelines, the
Commonwealth has not adopted any standards governing the qualifications, training, or
compensation required of counsel in a capital trial, on appeal, or during post-conviction
proceedings, nor does it guarantee that two attorneys be assigned to the defense of a death
penalty case. Public defender agencies self-enforce any internal guidelines on capital
representation, which does not guarantee that capital defendants and death row inmates
will be represented by attorneys who possess qualifications required by the ABA
Guidelines. This also subjects capital defendants and death row inmates to a real risk that
financial constraints of the public defender agencies will affect the quality of
representation afforded to them as Kentucky must provide defense services in a growing
number of cases with fewer resources.
e Although Kentucky’s public defender system historically has provided representation to
all death row inmates during post-conviction proceedings, Kentucky does not require the
appointment of post-conviction counsel until after an inmate has filed his/her post-
conviction petition and a Commonwealth court determines that the petition sets forth
sufficient evidence to warrant a hearing. Kentucky does not authorize funding for
investigative, mitigation, and expert services to assist in the claim development stage of a
death row inmate’s post-conviction petition, and, a court, in its discretion, may deny
access to expert services even when it has determined that a post-conviction hearing is
warranted.
e A 2011 study found that Kentucky public defenders who handle death penalty cases
make 31% less than similarly experienced attorneys in surrounding states, constituting
the lowest average salaries of examined jurisdictions plus the Kentucky federal defender.
Elected Commonwealth’s Attorneys who prosecute and try capital cases in many circuits
also earn substantially more than their public defender counterparts. The annual salaries
of DPA’s most experienced capital defense attorneys range from $75,810 to $86,131
while the elected Commonwealth Attorney in each judicial district earns an annual salary
of $110,346.
While the public defender agencies may contract with private counsel to handle a death penalty
case, the hourly rates and maximum caps on compensation available for contract counsel may
serve as a deterrent to attracting individuals with the needed qualifications to undertake the
demanding responsibilities and complexities of a death penalty case. Furthermore, the hourly
xxiil
compensation rates available for attorneys contracted by other Kentucky agencies for civil legal
matters is far greater than that available for attorneys contracted by the public defender to
represent a capital defendant or death row inmate.
Despite efforts to combat excessive caseloads, including contracting with local, private counsel
to provide representation, caseloads for Kentucky public defenders continue to rise.
Approximately forty-four DPA regional trial branch attorneys provide capital representation in
addition to carrying caseloads of over 400 non-capital cases each year, far exceeding national
averages and recommended maximum caseloads. Metro Defender capital attorneys handle
approximately double the capital caseload of their counterparts at DPA. Additionally, while
DPA and the Metro Defender attempt to assign an investigator and mitigation specialist to every
death penalty case, these staff members are routinely overworked and underpaid, carrying
caseloads ranging from twelve to twenty-five capital cases at any given time. Furthermore,
insufficient numbers of support staff have resulted in attorneys performing support staff
functions.
Finally, no Commonwealth entity is vested with the authority to certify the qualifications or
monitor the performance of attorneys who provide representation in capital cases. At least ten of
the seventy-eight individuals who were sentenced to death in Kentucky since the Commonwealth
reinstated capital punishment were represented at trial by attorneys who were later disbarred.
The importance of certification is illustrated by the case of Gregory Wilson who was sentenced
to death after a trial in which the trial court sought representation for him by hanging a sign on
the courtroom door that read “PLEASE HELP. DESPERATE. THIS CASE CANNOT BE
CONTINUED AGAIN.” One of the two attorneys who agreed to take the case had never tried a
felony and the other was a “semi-retired” lawyer who volunteered to serve as lead counsel for
free, “though he had no office, no staff, no copy machine and no law books.” Without a
certification process that ensures that only highly qualified attorneys take on representation of a
capital client, Kentucky fails to guard against capital defendants receiving representation by such
unqualified attorneys in future cases.
Chapter Seven: The Direct Appeal Process
The direct appeal process in capital cases is designed to correct any errors in the trial court’s
findings of fact and law and to determine whether the trial court’s actions during the
guilt/innocence and penalty phases of the trial were proper. One important function of appellate
review is to ensure that death sentences are not imposed arbitrarily or based on improper biases.
Meaningful comparative proportionality review, the process through which a sentence of death is
compared with sentences imposed on similarly-situated defendants to ensure that the sentence is
not disproportionate, is the primary method for preventing arbitrariness and bias at sentencing.
In this chapter, we examined Kentucky’s laws, procedures, and practices relevant to the direct
appeal process and assessed whether they comply with the ABA’s policies on the direct appeal
process.
A summary of Kentucky’s overall compliance with the ABA’s policies on the direct appeal
process is illustrated in the following chart.
Xxiv
Direct Appeal Process
7 In Partially in | Notin | Insufficient | Not
Comptianes [il Gompliance:| Compliance | Compliance | Information | Applicable
to Determine
Statewide
Recommendation Compliance
Recommendation #1: In order to (1) ensure that the
death penalty is being administered in a rational,
non-arbitrary manner, (2) provide a check on broad
prosecutorial discretion, and (3) __ prevent
discrimination from playing a role in the capital
decision-making process, direct appeal courts should x
engage in meaningful proportionality review that
includes cases in which a death sentence was
imposed, cases in which the death penalty was
sought but not imposed, and cases in which the death
penalty could have been but was not sought.
While Commonwealth law requires the Kentucky Supreme Court to determine, on direct appeal,
“Tw]hether the sentence of death is excessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the defendant,” the Kentucky Supreme Court limits
its proportionality review to only those cases in which the death penalty actually was imposed.
The Court does not consider cases in which the death penalty was sought but not imposed, or
cases in which the death penalty could have been sought but was not. Without a review
mechanism to ensure that similar sentences are imposed in similar cases on similar defendants,
there is no guarantee of internal consistency within Kentucky’s application of the death penalty.
For example, death sentences have been imposed on defendants for crimes in which a co-
defendant received only a term of years. The Kentucky Supreme Court has held that the
sentences of co-defendants are not relevant in determining the validity of a death sentence.
Furthermore, the Court’s existing proportionality review typically offers minimal analysis of the
similarities between the facts of the case at bar and previous cases in which a death sentence was
imposed. While the Kentucky Supreme Court has reviewed the death sentences imposed on
seventy-eight defendants per this statutorily-mandated proportionality review, it never has
vacated a death sentence on this ground.”
Chapter Eight: State Post-C onviction Proceedings
The importance of state post-conviction proceedings to the fair administration of justice in
capital cases cannot be overstated. Because many capital defendants receive inadequate counsel
at trial and on appeal, discovery in criminal trials is limited, and some constitutional violations
are unknown or cannot be litigated at trial or on direct appeal, state post-conviction proceedings
often provide the first real opportunity to establish meritorious constitutional claims. For this
° The Kentucky Supreme Court has reversed thirty-eight death sentences on direct appeal. See Kentucky Death
Sentences Imposed, Reversed and Commuted, 1976-2011, infra Appendix. In some of these cases, the Court will
not reach the issue of proportionality review if it found a separate basis upon which to overturn the death sentence.
XXV
reason, all post-conviction proceedings should permit the adequate development and judicial
consideration of all claims. In this chapter, we examined the laws, procedures, and practices in
the Commonwealth of Kentucky relevant to state post-conviction proceedings, and we assessed
whether they comply with the ABA’s policies on state post-conviction.
A summary of the Commonwealth’s overall compliance with the ABA’s policies on state post-
conviction proceedings is illustrated by the following chart:
State Post-C onviction Proceedings
7 In Partially in | Notin | Insufficient Not
Compliance ll cosptisaice | Compliance | Compliance’ | tnformation | Applicable
to Determine
Statewide
Recommendation Compliance
Recommendation #1: All post-conviction
proceedings at the trial court level should be
conducted in a manner designed to permit
adequate development and judicial consideration
of all claims. Trial courts should not expedite
post-conviction proceedings unfairly; if X
necessary, courts should stay executions to
permit full and deliberate consideration of claims.
Courts should exercise independent judgment in
deciding cases, making findings of fact and
conclusions of law only after fully and carefully
considering the evidence and the applicable law.
Recommendation #2: The state should provide
meaningful discovery in post-conviction
proceedings. Where courts have discretion to oe
permit such discovery, the discretion should be
exercised to ensure full discovery.
Recommendation #3: Trial judges should
provide sufficient time for discovery and should x
not curtail discovery as a means of expiditing the
proceedings,
Recommendation #4: When deciding post-
conviction claims on appeal, state appellate
courts should address explicitly the issues of fact X
and law raised by the claims and should issue
opinions that fully explain the bases for
disposititions of claims.
Recommendation #5: On the initial state post-
conviction application, state _ post-conviction
courts should apply a “knowing, understanding xX
and voluntary” standard for waivers of claims of
constitutional error not preserved properly at trial
or on appeal.
Recommendation #6: When deciding post-
conviction claims on appeal, state appellate
courts should apply a “knowing, understanding
and voluntary” standard for waivers of claims of x
constitutional error not raised properly at trial or
on appeal and should liberally apply a plain error
rule with respect to errors of state law in a capital
case.
XXVi
State Post-C onviction Proceedings (C ont’ d)
sae i In Partially in Notin Insufficient Not
— Compliance | | Compliance | Compliance | Compliance | Information | Applicable
= to Determine
—— Statewide
Recommendation = Compliance
Recommendation #7: The state should establish
post-conviction defense organizations, similar in
nature to the capital resource centers de-funded X
by Congress in 1996, to represent capital
defendants in state post-conviction, federal
habeas corpus, and clemency proceedings.
Recommendation #8: The state should appoint
post-conviction defense counsel whose
qualifications are consistent with the ABA
Guidelines on the Appointment and Performance x
of Counsel in Death Penalty Cases. The state
should compensate appointed counsel adequately
and, as necessary, provide sufficient funds for
investigators and expert.
Recommendation #9: State courts should give
full retroactive effect to U.S. Supreme Court
decisions in all proceedings, including second X
and successive post-conviction proceedings, and
should consider in such proceedings the decisions
of federal appeals and district courts.
Recommendation #10: State courts should
permit second and successive post-conviction
proceedings in capital cases where counsels’
omissions or intervening court decisions resulted x
in possibly meritorious claims not previously
being raised, factually or legally developed, or
accepted as legally valid,
Recommendation #11: In post-conviction
proceedings, state courts should apply the
harmless error standard of Chapman v. x
California, requiring the prosecution to show that
a constitutional error is harmless beyond a
reasonable doubt.
Recommendation #12: During the course of a
moratorium, a “blue ribbon” commission should
undertake a review of all cases in which
individuals have been either wrongfully x
convicted or wrongfully sentenced to death and
should recommend ways to prevent such
wrongful results in the future.
Although the Commonwealth of Kentucky should be applauded for some aspects of its post-
conviction review process, the several deficiencies that the Kentucky Assessment Team
identified in that process are cause for concern, as they may prevent a court from reviewing a
death row inmate’s claims of serious, constitutional error.
Some Commonwealth rules and practices do not permit adequate development and judicial
consideration of death row inmates’ claims of constitutional error. For example, while Kentucky
imposes a three-year statute of limitations for the filing of a post-conviction petition, this has
XXVii
been characterized as the “outer limit” of time permitted for the filing of such claims. Therefore,
in instances in which an execution date is set prior to the expiration of the three-year period, the
time for development and filing of a claim is significantly curtailed. Inmates not awaiting
execution do not face a similar time constraint. Furthermore, trial courts have dismissed initial
motions for post-conviction relief without conducting an evidentiary hearing, even when an
evidentiary hearing would have facilitated full judicial consideration of an inmate’s petition.
Kentucky also does not authorize discovery in state post-conviction proceedings and prohibits
inmates from using the Open Records Act to obtain materials possessed by law enforcement that
may be essential for establishing a death row inmate’s constitutional claims. Moreover, the lack
of discovery during post-conviction review makes it more likely that death row inmates will be
unable to develop viable claims of constitutional error in light of the truncated time period in
which they must prepare their petitions. Taken together, these aspects of the Commonwealth’s
post-conviction proceedings significantly impede an inmate’s ability to present thoroughly
his/her claims.
Furthermore, Kentucky post-conviction courts will not entertain a claim of constitutional error if
an inmate failed to raise, or improperly raised, the issue at trial or on direct appeal—not even in
rare circumstances for exceptional reasons. Instead, even the most egregious constitutional
defect must be argued as an ineffective assistance of counsel claim, which imposes an additional
burden on the inmate to show that counsel’s performance was deficient and that this deficient
performance affected the outcome of the case.
In addition, Kentucky has not always given full retroactive effect to U.S. Supreme Court
decisions. Moreover, until 2010, the Kentucky Supreme Court did not recognize a constitutional
claim of ineffective assistance of appellate counsel, despite the U.S. Supreme Court’s
recognition of this right in 1985.
The Commonwealth’s public defender entities voluntarily have represented death row inmates
during state post-conviction, federal habeas corpus, and clemency proceedings. However,
Kentucky does not require the appointment of post-conviction counsel to assist death row
inmates in the preparation and presentation of their initial post-conviction petitions.
Chapter Nine: Clemency
Given that the clemency process is the final avenue of review available to a death row inmate, it
is imperative that clemency decision-makers evaluate all of the factors bearing on the
appropriateness of the death sentence without regard to constraints that may limit a court’s or
jury’s decision-making. In this chapter, we reviewed Kentucky’s laws, procedures, and practices
concerning the clemency process and assessed whether they comply with the ABA’s policies on
clemency.
A summary of Kentucky’s overall compliance with the ABA’s policies on clemency is illustrated
in the following chart.
XXVili
Clemency
Ss Compliance
Recommendation ~
In
Compliance
Partially in
Compliance
Not in
Compliance
Insufficient
Information
to Determine
Statewide
Compliance
Not
Applicable
Recommendation #1: The clemency decision-
making process should not assume that the courts
have reached the merits on all issues bearing on
the death sentence in a given case; decisions
should be based upon an independent
consideration of facts and circumstances.
Recommendation #2: The clemency decision-
making process should take into account all
factors that might lead the decision maker to
conclude that death is not the appropriate
punishment.
Recommendation #3: Clemency decision-
makers should consider any pattern of racial or
geographic disparity in carrying out the death
penalty in the jurisdiction, including the
exclusion of racial minorities from the jury
panels that convicted and sentenced the death-
row inmate.
Recommendation #4: Clemency decision-
makers should consider the inmate’s mental
retardation, mental illness, or mental
competency, if applicable, the inmate’s age at the
time of the offense, and any evidence of lingering
doubt about the inmate’s guilt.
Recommendation #5: Clemency decision-
makers should consider an inmate’s possible
rehabilitation or performance of positive acts
while on death row.
Recommendation #6: Death row inmates should
be represented by counsel and such counsel
should have qualifications consistent with the
ABA Guidelines on the Appointment and
Performance of Counsel in Death Penalty Cases.
Recommendation #7: Prior to clemency
hearings, counsel should be entitled to
compensation, access to investigative, and expert
resources and provided with sufficient time to
develop claims and to rebut the State’s evidence.
Recommendation #8: Clemency proceedings
should be formally conducted in public and
presided over by the Governor or other officials
involved in making the determination.
Recommendation #9: If two or more individuals
are responsible for clemency decisions or for
making recommendations to clemency decision-
makers, their decisions or recommendations
should be made only after in-person meetings
with petitioners.
XXIX
Clemency (C ont’ d)
7 In Partially in Notin Insufficient Not
Compliance Compliance | Compliance | Compliance } Information | Applicable
to Determine
Statewide
Recommendation Compliance
Recommendation #10: Clemency decision-
makers should be fully educated and should
encourage public education about clemency xX
powers and limitations on the judicial system’s
ability to grant relief under circumstances that
might warrant grants of clemency.
Recommendation #11: To the maximum extent
possible, clemency determinations should be Xx
insulated from political considerations or
impacts.
Of the three persons who have been executed since Kentucky reinstated the death penalty in
1976, only one sought clemency immediately prior to his execution. In addition, since 1976, two
death row inmates’ sentences have been commutated to life without the possibility of parole.
With each grant of clemency, the Kentucky Governor provided a statement of reasons for the
commutation of the inmate’s sentence. In Kevin Stanford’s case, Governor Paul Patton
commuted the sentence because Stanford was seventeen at the time of the offense; in the second
case, Governor Ernie Fletcher commuted Jeffrey Leonard’s sentence due to the poor
representation afforded to Leonard at the time of his capital trial. In both of these cases, the
courts had rejected the issue upon which clemency was ultimately granted. However, it does not
appear that the Governor files a similar statement of reasons when an inmate’s petition for
clemency is denied, although section 77 of the Kentucky Constitution requires that the Governor
file with each application for clemency a statement of reasons for his decision.
Generally, there are few laws, rules, or guidelines governing the clemency filing and decision-
making process, which leads to inconsistent practices and an unpredictable process. In most
instances, inmates have filed a petition for clemency following the Governor’s issuance of a
death warrant, which may come at any time after the inmate’s first appeal has become final.
While some Governors’ may wait to sign a death warrant until the inmate’s state and federal
appeals are exhausted, in contrast, other Kentucky Governors may issue a death warrant before
the statute of limitations placed on filing appeals has lapsed. Thus, in some cases, counsel must
file a clemency petition that is not ripe for review and is never then reviewed by the Office of the
Kentucky Governor. Conversely, an execution date may be set quickly causing a hastily
prepared or incomplete petition for clemency to be filed on behalf of the condemned inmate.
Furthermore, while the Kentucky Governor possesses the sole constitutional and statutory power
to grant or deny clemency, s/he may request an investigation and a non-binding recommendation
from the Kentucky Parole Board (Board). Board members must meet certain experience and
training requirements to serve. Since the reinstatement of the death penalty, however, no
Kentucky Governor has requested the Board’s participation in a death row inmate’s clemency
determination. It is possible there will be no hearing or meeting with the death row inmate prior
to execution. In contrast, in non-capital cases, the Kentucky Parole Board conducts an in-person
XXX
meeting with inmates seeking parole. Finally, while Kentucky’s public defender agencies seek
to provide counsel to each death row inmate petitioning for clemency, the right to counsel is not
guaranteed. Moreover, a death row inmate may be denied access to prison officials who would
support the inmate’s application for commutation of a sentence. Prison officials are often the
only individuals with whom a death row inmate interacts and are therefore uniquely able, if
amenable, to support an inmate’s application for clemency. The Commonwealth’s denial of
access to such individuals unnecessarily frustrates a death row inmate’s ability to develop and
present relevant information that could result in a sentence less than death.
Chapter Ten: Capital Jury Instructions
In capital cases, jurors possess the “awesome responsibility” of deciding whether another person
will live or die. Due to the complexities inherent in capital proceedings, trial judges must present
fully and accurately, through jury instructions, the applicable law to be followed. Sometimes,
however, jury instructions are poorly written and poorly conveyed, leading to confusion among
jurors as to the applicable law and the extent of their responsibilities. In this chapter, we
reviewed Kentucky’s laws, procedures, and practices on capital jury instructions and assessed
whether they comply with the ABA’s policies on capital jury instructions.
A summary of Kentucky’s overall compliance with the ABA’s policies on capital jury
instructions is illustrated in the following chart.
Capital J ury Instructions
Compliance Tasaiteat
In Partially in Not in peu jon Not
Compliance | Compliance | Compliance | si tevije” Applicable
Recommendation Compliance
Recommendation #1: Jurisdictions should work
with attorneys, judges, linguists, social scientists,
psychologists, and jurors to evaluate the extent to
which jurors understand instructions, revise the x
instructions as necessary to ensure that jurors
understand applicable law, and monitor the extent
to which jurors understand revised instructions to
permit further revision as necessary.
Recommendation #2: Jurors should receive
written copies of court instructions to consult x
while the court is instructing them and while
conducting deliberations.
Recommendation #3: Trial courts should
respond meaningfully to jurors’ requests for
clarification of instructions by explaining the
legal concepts at issue and meanings of words x
that may have different meanings in everyday
usage and, where appropriate, by directly
answering jurors’ questions about applicable law.
XXxXi
Capital J ury Instructions (C ont’ d)
Compliance Insuficent
In Partially in Notin mormaton,
; : A to Determine Not
Compliance | Compliance | Compliance | "sitewide | Applicable
Recommendation Compliance
Recommendation #4: Trial courts should instruct
jurors clearly on available _ alternative
punishments and should, upon the defendant’s
request during the sentencing phase, permit x
parole officials or other knowledgeable witnesses
to testify about parole practices in the state to
clarify jurors’ understanding of alternative
sentences.
Recommendation #: Trial courts should instruct
[jurors that a juror may return a life sentence, even
in the absence of any mitigating factor and even
where an aggravating factor has been established xX
beyond a reasonable doubt, if the juror does not
believe that the defendant should receive the
death penalty,
Recommendation #6: Trial courts should not
place limits on a juror’s ability to give full x
consideration to any evidence that might serve as
a basis for a sentence less than death.
Recommendation #7: In states where it is
applicable, trial courts should make clear in jury
instructions that the weighing process for
considering aggravating and mitigating factors x
should not be conducted by determining whether
there are a greater number of aggravating factors
than mitigating factors.
In its review of the Commonwealth’s approach to jury instructions in capital cases, the Kentucky
Assessment Team identified several areas of concern. First, there is no indication that the
Commonwealth has undertaken a thorough evaluation of the extent to which jurors understand
the instructions they are given in capital cases. The imperative for such an evaluation cannot be
doubted. Disturbingly high percentages of Kentucky capital jurors interviewed by the Capital
Jury Project failed to understand the guidelines for considering aggravating and mitigating
evidence. For example, 45.9% of jurors failed to understand that they could consider mitigating
evidence at sentencing, 61.8% failed to understand that they need not find mitigation “beyond a
reasonable doubt,” and 83.5% did not understand that they need not have been unanimous on
findings of mitigation. Despite this evidence of juror miscomprehension, the Kentucky Supreme
Court has held that jurors need not be supplied with a definition of “mitigating circumstances.”
The Kentucky Supreme Court also has prohibited trial testimony regarding parole practices even
though many jurors, concerned with erring on the side of leniency, opt to recommend a sentence
of death when they otherwise would not. Trial courts also need not clarify for jurors that they
may recommend a life sentence regardless of their finding on aggravation and mitigation.
Chapter Eleven: Judicial Independence
XXxii
In some states, judicial elections, appointments, and confirmations are influenced by
consideration of judicial nominees’ or candidates’ purported views of the death penalty or of
judges’ decisions in capital cases. In addition, judges’ decisions in individual cases sometimes
are, or appear to be, improperly influenced by electoral pressures. This increases the possibility
that judges will be selected, elevated, and retained by a process that ignores the larger interests of
justice and fairness, focuses narrowly on the issue of capital punishment, and undermines
society’s confidence that individuals in court are guaranteed a fair hearing. In this chapter, we
reviewed Kentucky’s laws, procedures, and practices on the election and appointment of judges
and on judicial decision-making processes and assessed whether they comply with the ABA’s
policies on judicial independence.
A summary of Kentucky’s overall compliance with the ABA’s policies on judicial independence
is illustrated in the following chart.
Judicial Independence
‘Goniplianes. In Partially in | Notin Insufficient Not
Compliance | Compliance | Compliance | Information | Applicable
to Determine
‘ Statewide
Recommendation Compliance
Recommendation #1: States should examine the
fairness of their judicial election/appointment process
and should educate the public about the importance of x
judicial independence and the effect of unfair
practices on judicial independence.
Recommendation #2: A judge who has made any
promise regarding his/her prospective decisions in
capital cases that amounts to prejudgment should not x
preside over any capital case or review any death
penalty decision in the jurisdiction.
Recommendation #3: Bar associations and
community leaders should speak out in defense of
judges who are criticized for decisions in capital
cases, educate the public concerning the roles and
responsibilities of judges and lawyers in capital cases,
and publicly oppose any questioning of candidates for x
judicial appointment or re-appointment concerning
their decisions in capital cases. Purported views on the
death penalty or on habeas corpus should not be
litmus tests or important factors in the selection of
judges.
Recommendation #4: A judge who observes
ineffective lawyering by defense counsel should
inquire into counsel’s performance and, where x
appropriate, take effective actions to ensure defendant
receives a proper defense.
Recommendation #5: A judge who determines that
prosecutorial misconduct or other unfair activity has
occurred during a capital case should take immediate xX
action to address the situation and to ensure the capital
proceeding is fair,
XXXili
Judicial Independence (C ont’ d)
—— Compl In Partially in | Notin | Insufficient | Not
— omENanee Compliance | Compliance | Compliance | Information | Applicable
= to Determine
, —— Statewide
Recommendation Se Compliance
Recommendation #6: Judges should do all within
their power to ensure that defendants are provided x
with full discovery in capital cases.
While some Kentucky entities and even judicial candidates have sought to promote and educate
the public on the importance of an independent and impartial judiciary, the Commonwealth has
not examined the fairness of its statewide judicial selection process. Meanwhile, campaign
rhetoric in the Commonwealth’s judicial election system raises significant questions about both
the fairness of judicial selection in Kentucky and the independence of judges. For example,
there have been numerous instances where judicial candidates have stated their view on capital
punishment and/or campaigned on a “tough on crime” platform, including criticizing an
incumbent judge for the percentage of cases in which the judge had ruled in favor of criminal
defendants. Judicial candidates’ assertion of their party affiliation is likely to increase since the
U.S. Court of Appeals for the Sixth Circuit invalidated the portion of the Kentucky Code of
Judicial Conduct that prohibited judges and judicial candidates from publicly disclosing their
party affiliation. Furthermore, the current operation of the Commonwealth’s appointment
process for vacancies on the bench permits the Governor to wield undue influence in the
appointment of judges.
Since the death penalty was reinstated in 1976, death sentences have been imposed on seventy-
eight defendants in Kentucky. Fifty of these defendants' cases have seen a reversal of a death
sentence by the state or federal courts due to trial court errors, prosecutorial misconduct, or
ineffective assistance of counsel. The prevalence of reversals of death sentences in the
Commonwealth demonstrates that trial courts are not always taking effective action to ensure
that capital proceedings are fair. Finally, while full or open file discovery may occur via
agreement, it is not required, and Commonwealth trial judges need only ensure that parties
adhere to the Kentucky rules of discovery. The Commonwealth does not permit discovery in
capital post-conviction proceedings. Kentucky courts are under no obligation to ensure to
discovery in this context.
Chapter Twelve: Treatment of Racial and Ethnic Minorities
To eliminate the impact of race in the administration of the death penalty, the ways in which race
infects the system must be identified, and strategies must be devised to root out the
discriminatory practices. In this chapter, we examined Kentucky’s laws, procedures, and
practices pertaining to the treatment of racial and ethnic minorities and assessed whether they
comply with the ABA’s policies.
A summary of Kentucky’s overall compliance with the ABA’s policies on racial and ethnic
minorities and the death penalty is illustrated in the following chart.
XXXxiV
Racial and Ethnic Minorities
Compliance
Recommendation
In
Compliance
Partially in
Compliance
Notin
Compliance
Insufficient
Information
to Determine
Statewide
Compliance
Not
Applicable
Recommendation #1: Jurisdictions should fully
investigate and evaluate the impact of racial
discrimination in their criminal justice systems and
develop strategies that strive to eliminate it.
Recommendation #2: Jurisdictions should collect and
maintain data on the race of defendants and victims, on
the circumstances of the crime, on all aggravating and
mitigating circumstances, and on the nature and strength
of the evidence for all potential capital cases. The data
should be collected and maintained with respect to every
stage of the criminal justice process, from reporting of the
crime through execution of the sentence.
Recommendation #3: Jurisdictions should collect and
review all valid studies already undertaken to determine
the impact of racial discrimination on the administration
of the death penalty and should identify and carry out any
additional studies that would help determine
discriminatory impacts on capital cases. In conducting
new studies, states should collect data by race for any
aspect of the death penalty in which race could be a
factor.
Recommendation #4: Where patterns of racial
discrimination are found in any phase of the death
penalty administration, jurisdictions should develop, in
consultation with legal scholars, practitioners, and other
appropriate experts, effective remedial and prevention
strategies to address the discrimination,
Recommendation #5: Jurisdictions should adopt
legislation explicitly stating that no person shall be put to
death in accordance with a sentence sought or imposed as
a result of the race of the defendant or the race of the
victim. To enforce this law, jurisdictions should permit
defendants and inmates to establish prima facie cases of
discrimination based upon proof that their cases are part
of established racially discriminatory patterns. If a prima
facie is established, the state should have the burden
of rebutting it by substantial evidence.
Recommendation #6: Jurisdictions should develop and
implement educational programs applicable to all parts of
the criminal justice system to stress that race should not
be a factor in any aspect of death penalty administration.
To ensure that such programs are effective, jurisdictions
also should impose meaningful sanctions against any state
actor found to have acted on the basis of race in a capital
case.
Recommendation #7: Defense counsel should be trained
to identify and develop racial discrimination claims in
capital cases. Jurisdictions also should ensure that
defense counsel are trained to identify biased jurors
during voir dire.
XXXV
Racial and Ethnic Minorities (C ont’ d)
; In Partially in | Notin | Insufficient | Not
Complianes Ti) cisinptisnse | Comptianes | Compliance’ | futormation | ‘Applicable
to Determine
Recommendation Statewide
Compliance
Recommendation #8: Jurisdictions should require jury
instructions that it is improper for jurors to consider any
racial factors in their decision making and that jurors xe
should report any evidence of racial discrimination in jury
deliberations.
Recommendation #9: Jurisdictions should ensure that
judges recuse themselves from capital cases when any
party in a given case establishes a reasonable basis for x
concluding that the judge’s decision-making could be
affected by racially discriminatory factors.
Recommendation #10: States should permit defendants
or inmates to raise directly claims of racial discrimination
in the imposition of death sentences at any stage of
judicial proceedings, notwithstanding any procedural rule x
that otherwise might bar such claims, unless the state
proves in a given case that a defendant or inmate has
knowingly and intelligently waived the claim.
Numerous empirical studies, including one commissioned by the Kentucky General Assembly,
have shown that the Commonwealth is more likely to seek the death penalty when the offender is
black and the victim is white, and that a death sentence is more likely to be imposed on black
offenders convicted of killing a white victim. In response to such findings, in 1998, Kentucky
became the first state in the United States to adopt a Racial Justice Act (KRJA), which permits
capital defendants to raise, during pretrial proceedings, a claim that the Commonwealth sought
the death penalty against the defendant based, in part, on the race of the defendant and/or race of
the victim. The Act requires the trial court to remove the death penalty as a sentencing option if
the defendant is successful under the KRJA.
While the adoption of the KRJA is laudable, the Act appears to have a number of limitations. For
example, the KRJA
e is not applicable retroactively and, therefore, is unavailable to inmates who were
sentenced to death prior to the Act’s adoption in 1998;
e does not to permit a capital defendant or death row inmate to raise a claim of racial
discrimination in the decision to impose the death penalty;
e requires a capital defendant to raise a KRJA claim before trial rather than permitting an
inmate to raise the claim at any stage of the capital proceedings, including on appeal or
during post-conviction proceedings;
e requires a capital defendant to prove racial discrimination by clear and convincing
evidence, rather than by a preponderance of the evidence; and
e does not permit a capital defendant or death row inmate to prevail under the KRJA if s/he
is able to demonstrate that racial considerations played a significant part in the decision to
seek or impose a death sentence in the county, judicial district, or the Commonwealth;
XXXVI
instead, the KRJA requires the defendant to demonstrate evidence of racial discrimination
in the defendant’s individual case.
Furthermore, like claims under the KRJA, claims challenging the Commonwealth’s use of
peremptory challenges on the basis of race (Batson challenges) and claims challenging the racial
composition of the jury pool are procedurally barred on appeal unless raised prior to trial.
In addition, no entity within the Commonwealth collects and maintains data on the race of
defendants and victims, on the circumstances of the crime, on all aggravating and mitigating
circumstances, and on the nature and strength of the evidence for all potential capital cases.
Without these data, Kentucky cannot guarantee that its system ensures proportionality in
charging or sentencing, nor can it determine the extent of racial or ethnic bias in its capital
system. This lack of data collection and reporting on the overall use of capital punishment in
Kentucky makes it impossible for the Commonwealth to determine whether such a system is
operating effectively, efficiently, and without bias.
Since the adoption of the KRJA, the Commonwealth has undertaken a number of investigations
into racial disparities in the criminal justice system and perceptions of racial bias in the judicial
system by court-users. However, Kentucky has not investigated or adopted any specific
remedial or preventative strategies to address racial disparities in capital charging or sentencing
since the 1998 adoption of the KRJA.
The Commonwealth’s public defenders and conflict counsel contracted by the public defenders
are trained to identify and develop racial discrimination claims in capital cases and to identify
biased jurors during voir dire. However, because there are no training requirements that apply
to all capital defense counsel in the Commonwealth, there is no assurance that such counsel are
trained on litigating KRJA claims or other issues of racial discrimination that may arise in a
capital case.
Chapter Thirteen: Mental Retardation and Mental Illness
Mental Retardation
In Atkins v. Virginia, the U.S. Supreme Court held that it is unconstitutional to execute offenders
with mental retardation. This holding, however, does not guarantee that individuals with mental
retardation will not be executed, as each state has the authority to make its own rules for
determining whether a capital defendant is mentally retarded. In this chapter, we reviewed
Kentucky’s laws, procedures, and practices pertaining to mental retardation in connection with
the death penalty and assessed whether they comply with the ABA’s policy on mental retardation
and the death penalty.
A summary of Kentucky’s overall compliance with the ABA’s policies on mental retardation is
illustrated in the following chart.
XXXVil
Mental Retardation
Compliance
Recommendation
In
Compliance
Partially in
Compliance
Notin
Compliance
Insufficient
Information
to Determine
Statewide
Compliance
Not
Applicable
Recommendation #1: Jurisdictions should bar the
execution of individuals who have mental
retardation, as defined by the American Association
on Intellectual and Developmental Disabilities.
Whether the definition is satisfied in a particular case
should be based upon a clinical judgment, not solely
upon a legislatively prescribed IQ measure, and
judges and counsel should be trained to apply the law
fully and fairly. No IQ maximum lower than 75
should be imposed in this regard. Testing used in
arriving at this judgment need not have been
performed prior to the crime.
Recommendation #2: All actors in the criminal
justice system should be trained to recognize mental
retardation in capital defendants and death row
inmates.
Recommendation #3: The jurisdiction should have in
place policies that ensure that persons who may have
mental retardation are represented by attorneys who
fully appreciate the significance of their client’s
mental limitations. These attorneys should have
training sufficient to assist them in recognizing
mental retardation in their clients and understanding
its possible impact on their clients’ ability to assist
with their defense, on the validity of their
“confessions” (where applicable) and on_ their
eligibility for capital punishment, These attorneys
should also have sufficient funds and resources to
determine accurately and prove the mental capacities
and adaptive skill deficiencies of a defendant who
counsel believes may have mental retardation.
Recommendation #4: For cases commencing after
Atkins v. Virginia or the state’s ban on the execution
of the mentally retarded (the earlier of the two), the
determination of whether a defendant has mental
retardation should occur as early as possible in
criminal proceedings, preferably prior to the
guilt/innocence phase of a trial and certainly before
the penalty stage of a trial.
Recommendation #5: The burden of disproving
mental retardation should be placed on the
prosecution, where the defense has presented a
substantial showing that the defendant may have
mental retardation. If, instead, the burden of proof is
placed on the defense, its burden should be limited to
proof by a preponderance of the evidence.
Recommendation #6: During police investigations
and interrogations, special steps should be taken to
ensure that the Miranda rights of a mentally retarded
person are sufficiently protected and that false,
coerced, or garbled confessions are not obtained or
used.
XXXVili
Mental Retardation (Cont'd)
" Insufficient
Compliance ip 4 Information
In Partially in Notin SoD eter Not
A 4 jetermine .
Compliance | Compliance | Compliance | ce ewige | Applicable
Recommendation Compliance
Recommendation #7: The jurisdiction should have
in place mechanisms to ensure that, during court
proceedings, the rights of mentally retarded persons x
are protected against “waivers” that are the product of
their mental disability.
Since 1990, Kentucky has prohibited the execution of offenders with mental retardation, well
before the U.S. Supreme Court’s decision in Atkins. In compliance with the ABA
Recommendations, the Commonwealth requires capital offenders to prove mental retardation by
a preponderance of the evidence. Furthermore, some of the Commonwealth’s practices
facilitates the identification of mental retardation in capital defendants and death row inmates,
such as the training of capital defense counsel on identification of mental retardation in their
clients and litigation of this issue before the courts. Trial counsel in Kentucky also has access to
needed expert resources to determine accurately and prove the mental capacities of capital
defendants.
However, some procedures and practices adopted by the Commonwealth to identify mental
retardation in capital defendants and death row inmates fall short of the ABA Recommendations
in several important respects. For example,
e Kentucky’s statutory definition of mental retardation creates a bright-line
maximum IQ of seventy, which fails to comport with the modern scientific
understanding of mental retardation.
e Kentucky courts also have required that a capital defendant have been IQ-tested
prior to the age of eighteen, which often places an unattainable burden of proof on
the offender since such individuals have rarely taken standardized assessments of
intelligence or adaptive behavior functioning before adulthood.
e Kentucky’s procedural rules could permit a death row inmate who is mentally
retarded to be executed when the inmate have failed to effectively raise the issue
of his/her mental retardation before trial. Furthermore, Kentucky post-conviction
courts typically do not authorize any funding for mental health experts to assist
potentially mentally retarded death row inmates to accurately determine and prove
their mental capacities.
Mental Illness
We also reviewed Kentucky’s laws, procedures, and practices pertaining to mental illness in
connection with the death penalty and assessed whether they comply with the ABA’s policy on
mental illness and the death penalty. Mental illness can affect every stage of a capital trial. It is
relevant to the defendant’s competence to stand trial, it may provide a defense to the murder
charge, and it can be the centerpiece of the mitigation case. Conversely, when the judge,
XXXiX
prosecutor, or jurors are misinformed about the nature of mental illness and its relevance to the
defendant’s culpability and life experience, tragic consequences often follow for the defendant.
A summary of Kentucky’s overall compliance with the ABA’s policies on mental illness is
illustrated in the following chart.
Mental Illness
Compliance In Partially in Notin Insufficient Not
Compliance | Compliance | Compliance | Information | Applicable
to Determine
. Statewide
Recommendation Compliance
Recommendation #1: All actors in the criminal
justice system, including police officers, court
officers, prosecutors, defense attorneys, judges, x
and prison authorities, should be trained to
recognize mental illness in capital defendants
and death row inmates.
Recommendation #2: During _ police
investigations and interrogations, special steps
should be taken to ensure that the Miranda rights x
of a mentally ill person are sufficiently protected
and that false, coerced, or garbled confessions
are not obtained or used.
Recommendation #8: The jurisdiction should
have in place policies that ensure that persons
who may have mental illness are represented by
attorneys who fully appreciate the significance of
their client’s mental disabilities. These attorneys
should have training sufficient to assist them in
recognizing mental disabilities in their clients
and understanding its possible impact on their x
clients’ ability to assist with their defense, on the
validity of their “confessions” (where applicable)
and on their initial or subsequent eligibility for
capital punishment. These attorneys should also
have sufficient funds and resources to determine
accurately and prove the disabilities of a
defendant who counsel believes may have mental
disabilities.
Recommendation #1: Prosecutors should
employ, and trial judges should appoint, mental
health experts on the basis of their qualifications
and relevant professional experience, not on the
basis of the expert’s prior status as a witness for x
the state. Similarly, trial judges should appoint
qualified mental health experts to assist the
defense confidentially according to the needs of
the defense, not on the basis of the expert’s
current or past status with the state.
xl
Mental Illness (C ont’ d)
Compliance
Recommendation
In
Compliance
Partially in
Compliance
Notin
Compliance
Insufficient
Information
to Determine
Statewide
Compliance
Not
Applicable
Recommendation #: Jurisdictions should
provide adequate funding to permit the
employment of qualified mental health experts in
capital cases. Experts should be paid in an
amount sufficient to attract the services of those
who are well-trained and who remain current in
their fields. Compensation should not place a
premium on quick and inexpensive evaluations,
but rather should be sufficient to ensure a
thorough evaluation that will uncover pathology
that a superficial or cost-saving evaluation might
mis
Recommendation #6: Jurisdictions should
forbid death sentences and executions for
everyone who, at the time of the offense, had
significant limitations in intellectual functioning
and adaptive behavior as expressed in
conceptual, social, and practical adaptive skills,
resulting from mental retardation, dementia, or a
traumatic brain injury.
Recommendation #7: The jurisdiction should
forbid death sentences and executions with
regard to everyone who, at the time of the
offense, had a severe mental disorder or
disability that significantly impaired the capacity
(a) to appreciate the nature, consequences, or
wrongfulness of one’s conduct, (b) to exercise
rational judgment in relation to conduct, or (c) to
conform one’s conduct to the requirements of the
law.
Recommendation #8: To the extent that a
mental disorder or disability does not preclude
imposition of the death sentence pursuant to a
particular provision of law, jury instructions
should communicate clearly that a mental
disorder or disability is a mitigating factor, not an
aggravating factor, in a capital case, that jurors
should not rely upon the factor of a mental
disorder or disability to conclude that the
defendant represents a future danger to society,
and that jurors should distinguish between the
defense of insanity and the defendant's
subsequent reliance on mental disorder or
disability as a mitigating factor.
Recommendation #9: Jury instructions should
adequately communicate to jurors, where
applicable, that the defendant is receiving
medication for a mental disorder or disability,
that this affects the defendant's perceived
demeanor, and that this should not be considered
in aggravation.
xli
Mental Illness (C ont’ d)
Compliance In Partially in Notin Insufficient Not
Compliance | Compliance | Compliance | Information | Applicable
to Determine
. Statewide
Recommendation Compliance
Recommendation #10: The jurisdiction should
have in place mechanisms to ensure that, during
court proceedings, the rights of persons with
mental disorders or disabilities are protected
against "waivers" that are the product of a mental
disorder or disability. In particular, the
jurisdiction should allow a "next friend" acting x
on a death row inmate’s behalf to initiate or
pursue available remedies to set aside the
conviction or death sentence, where the inmate
wishes to forego or terminate post-conviction
proceedings but has a mental disorder or
disability that significantly impairs his/her
capacity to make a rational decision.
Recommendation #11: The jurisdiction should
stay post-conviction proceedings where a
prisoner under a sentence of death has a mental
disorder or disability that significantly impairs
his/her capacity to understand or communicate
pertinent information, or otherwise to assist
counsel, in connection with such proceedings and
the prisoner's participation is necessary for a fair x
resolution of specific claims bearing on the
validity of the conviction or death sentence. The
jurisdiction should require that the prisoner’s
sentence be reduced to the sentence imposed in
capital cases when execution is not an option if
there is no significant likelihood of restoring the
prisoner’s capacity to participate in post-
conviction proceedings in the foreseeable future.
Recommendation #12: The jurisdiction should
provide that a death row inmate is not
“competent” for execution where the inmate, due
to a mental disorder or disability, has
significantly impaired capacity to understand the
nature and purpose of the punishment or to
appreciate the reason for its imposition in the x
inmate’s own case. It should further provide that
when such a finding of incompetence is made
after challenges to the conviction's and death
sentence’s validity have been exhausted and
execution has been scheduled, the death sentence
shall be reduced to the sentence imposed in
capital cases when execution is not an option.
Recommendation #13: Jurisdictions should
develop and disseminate—to police officers,
attorneys, judges, and other court and prison
officials—models of best practices on ways to
protect mentally ill individuals within the Xx
criminal justice system. In developing these
models, jurisdictions should enlist the assistance
of organizations devoted to protecting the rights
of mentally ill citizens.
xiii
Many actors within the Kentucky criminal justice system, including law enforcement,
corrections personnel, and, most notably, capital defense counsel, receive training on recognizing
mental illness in capital defendants and death row inmates. As in the case with mental
retardation, public defenders undergo training on recognizing mental illness and proving their
clients’ mental capabilities, although training is not required of all attorneys who represent a
capital defendant or death row inmate. Furthermore, trial courts in Kentucky often grant trial
counsel's ex parte requests for funding to hire qualified mental health experts to assist the
defense confidentially.
Despite these efforts, the Commonwealth’s death penalty system does not adequately protect the
rights of individuals with severe mental illness. Kentucky is one of only a few states that permit
a finding of “guilty but mentally ill,” but Kentucky courts cannot exclude the death penalty as a
sentencing option for defendants found guilty but mentally ill. Furthermore, while the
Commonwealth does prohibit execution of mentally retarded offenders, as described above,
Kentucky does not prohibit execution of offenders with mental disabilities similar to mental
retardation, such as dementia or traumatic brain injury, but which manifest after the age of
eighteen. In addition, Kentucky does not prohibit imposition of a death sentence or execution of
an individual who, at the time of his/her offense, had a severe mental illness, disorder, or
disability that significantly impaired his/her capacity to appreciate the nature, consequences, or
wrongfulness of his/her conduct to exercise rational judgment in relation to conduct, or to
conform his/her conduct to the requirements of the law.
Kentucky does not require jurors be specifically instructed that a mental disorder or disability is
a mitigating, not an aggravating factor; that evidence of mental disability should not be relied
upon to conclude that the defendant represents a future danger to society; and to distinguish
between the affirmative defense of insanity and a defendant’s subsequent reliance on similar
evidence to demonstrate a mental disorder or disability as a mitigating factor.
Finally, it does not appear that Kentucky courts will toll the statute of limitations imposed in
post-conviction proceedings if an inmate suffers from a mental disorder or disability that affected
the inmate’s ability to file a timely petition for post-conviction relief. There is also no provision
of Kentucky law that permits a “next friend” to pursue available remedies on a death row
inmate’s behalf if the inmate wishes to forgo further legal proceedings as a result of a mental
disorder or disability that significantly impairs his/her capacity to make a rational decision.
xii
