Capital Sentencing In Kentucky, 2000-
2010
Gennaro F. Vito, George E. Higgins &
Anthony G. Vito
American Journal of Criminal Justice
The Journal of the Southern Criminal
Justice Association
_ AMERICAN JOURNAL |
DOI 10.1007/s12103-014-9258-2 OF CRIMINAL ‘a
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Am J Crim Just
DOI 10.1007/s12103-014-9258-2
Capital Sentencing In Kentucky, 2000-2010
Gennaro F. Vito - George E. Higgins -
Anthony G. Vito
Received: 6 June 2014 / Accepted: 6 June 2014
© Southem Criminal Justice Association 2014
Abstract The current study attempts to build upon previous analyses of capital
sentencing in Kentucky and other states. Using data compiled from official court
records compiled by the Kentucky Department of Public Advocacy, we examined
death eligible homicide cases for the years 2000-2010 for the state (N=359).
Multivariate analysis determined that the death penalty in Kentucky was sought 3.17
times or 217 % more when the victim is female. It also found that cases featuring a
black defendant and a white victim were 56 % less likely to result in a plea than cases
featuring other defendant/victim racial combinations. Despite legal requirements,
Kentucky fails to collect data to assess the factors that influence the seeking and
imposition of the death penalty.
Paper presented at the Second Annual Forum on Criminal Law Reform in the
Commonwealth of Kentucky on November 15, 2013 at the University of Kentucky
Law School, Lexington, KY.
Keywords Capital sentencing - Capital punishment - Prosecutorial discretion
Introduction
Capital punishment was reinstated in Kentucky in 1976. This re-establishment took
place despite a background of racial bias in the imposition of the death penalty in both
the country and the Commonwealth. Historically, African Americans were lynched
typically preceded by torture and followed by mutilation of the the body. Eventually,
lynchings were replaced by the imposition of capital punishment by the state but the
evidence of racial discrimination continued. However, in Kentucky, official state
executions failed to halt lynchings for either blacks or whites (see Wright, 1990; Keil
& Vito, 2009). Racial bias continued to plague the capital sentencing system in
Kentucky.
G. F. Vito (3) G. E. Higgins * A. G. Vito
Department of Justice Administration, University of Louisville, Louisville, KY, USA
e-mail: gf-vito@louisville.edu
Published online: 19 June 2014 D Springer
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The research findings presented here extends the study of capital sentencing in Kentucky.
The first portion of the analysis covers the period 2000-2010 for statewide homicide cases
(with the exception of cases from Jefferson County) and considers the factors that were
related to the capital sentencing process. ' The second portion includes the Jefferson County
cases to consider the total distribution of capital cases in Kentucky for this period.
The McCleskey Decision
As a whole, studies of capital sentencing have been modeled on the work of David
Baldus and his colleagues. Basically, these studies have demonstrated that the race of
the victim (especially when a black kills a white) significantly enhances the probability
that an offender will be sentenced to death. In fact, research conducted by Baldus and
his associates in Georgia was the basis for the defendant’s claim in the McCleskey v.
Kemp decision.
In an exhaustive and sophisticated study, Baldus, Pulaski, and Woodworth (1983)
reviewed the Georgia capital sentencing process. The authors utilized two data sets: 1)
130 pre-Furman cases (20 resulted in a death sentence) and 2) 594 defendants tried and
sentenced for murder since that decision. They considered the effect of some 232
different variables which were designed to consider relevant aggravating and mitigating
circumstances in capital sentencing.
Their statistical model revealed that, among cases with statutory aggravating factors,
the death sentencing rate did not exceed 62 %. Thus, prosecutors and jurors used
considerable discretion in selecting defendants for execution. They also uncovered a
very low death sentencing rate in black victim cases. They concluded that the level of
aggravation must be substantially great for prosecutors to seek the death penalty and
that juries appeared to tolerate greater levels of aggravation without imposing the death
penalty in black victim cases. Their conclusion was that “Georgia’s death sentencing
system has continued to impose the type of inconsistent, arbitrary sentencing that the
U.S. Supreme Court condemned in Furman (Baldus et al. 1983, p. 730).”
In McCleskey v. Kemp, * the U.S. Supreme Court stated that the Baldus study on the
Georgia capital sentencing procedures reviewed in Gregg revealed only “a discrepancy
... correlated with race.” The study did not and indeed could not focus on McCleskey’s
case, but he was in the category identified by the research — a black who killed a white
police officer during the course of an armed robbery. Therefore, the U.S. Supreme Court
found that the study did not demonstrate that race was a factor in his death sentence.
Findings from Previous Research
Both before and after McCleskey, a number of studies from different locations have
determined that homicide cases involving white victims (especially cases where blacks kill
" We excluded Jefferson County cases because, as a matter of official policy, prosecutors there sought the
death penalty in each and every eligible homicide case. However, these cases were the subject of separate
study (see Vito, Higgins, & Vito, 2013).
? McCleskey v. Kemp, 481 U.S. 279 (1987).
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whites) was the deciding and decisive factor in the decision to execute (Arkin, 1980; Baldus
et al. 1983; Bowers & Pierce, 1980; Gross & Mauro, 1984; Paternoster, 1983; Radelet,
1981; Wolfgang & Riedel, 1973; Zeisel, 1981; for a summary of post-Gregg findings, see
US. General Accounting Office, 1990). Indeed, recent research confirms that this pattern
continues to exist. Baldus and his colleagues have identified 18 additional empirical studies
published or reported since the GAO report. The results of these studies were consistent with
the findings of the GAO report: two documented no race effects at all; three reported both
race of victim and race of the offender effects; two identified specific disparities in terms of
the cases where blacks were charged with the murder of whites; and the remaining twelve
reported race of victim effects (Baldus & Woodworth, 2009, p. 509).
Our study of the Kentucky capital sentencing system was included in the GAO
review. A replication of the Baldus study, the research findings identified the factors
that prosecutors * used to seek and jurors to impose the death penalty in Kentucky from
1976 to 1991 (Keil & Vito, 1995). These factors were identical for both prosecutors and
jurors, specifically cases where:
+ The offender killed more than one victim.
+ The offender killed to “silence” the victim.
+ More than one aggravating circumstance was present.
* Cases in which Blacks killed Whites.
The study concluded that the impact of race on prosecutorial decisions could not be
justified by the presence of other legitimate factors. Juries considered the killing of a white
by a black more deserving of the death penalty than other offender/victim racial
combinations.
Recently, the race of the offender and victim in capital cases was found to be source of
bias in several states including Maryland (Paternoster & Brame, 2008; Paternoster,
Brame, Bacon, & Ditchfield, 2004), Harris County, Texas study (Phillips, 2008-2009),
Texas as a whole (Petrie & Coverdill, 2010), California (Pierce & Radelet, 2005-2006),
Illinois (Pierce & Radelet, 2002), Arizona (Thomson, 1997), Ohio (Williams & Holcomb,
2001), North Carolina (Unah, 2011) and the Federal level (McNally, 2003-2004). 4
In addition, American Bar Association (ABA) has conducted studies in in eight states
(Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania and Tennessee) and
reached the following conclusions concerning race and capital sentencing:
1. Every state studied appears to have significant racial disparities in its capital
system, particularly those associated with race of the victim.
2. Even in states with acknowledged racial disparities, little, if anything, has been
done to rectify the problem and
* Another study to determine whether the capital sentencing decisions of Kentucky prosecutors (in cases from
1976 to 1991) were determined at random or by deliberate factors revealed that the death penalty was most
likely to be sought in cases where black offenders killed white victims (see Keil & Vito, 2006)
+ A Tennessee based study found no evidence of racial discrimination in capital sentencing. Scheb, Lyons, and
Wagers (2008) analyized 968 homicide cases from 1977 to 2006. They determined that, after controls for such
case factors as place, method, motive, nature of the evidence, presence of multiple vietims, and prior record
were controlled for the race of the defendant and race of the victim were not significant predictors of a capital
sentence (Scheb et al., 2008, p. 343).
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3. Generally, states are not keeping the data necessary to conduct the sort of analysis
necessary to quantify the problem with bias and identify its causes, making the
process of analysis, difficult if not impossible (ABA, 2011).
The ABA is continuing these studies in other states.
In sum, the research evidence continues to follow a pattern summarized earlier by
Gross (1985, p. 1301) as one which “indicates, unmistakably, that there has been
substantial discrimination in capital sentencing by the race of the victim” and that
“few social science findings have such strong support.”
Effect of Sex of Victim on Capital Sentencing
In addition to the race of the victim, there is some indication that the sex of the victim also
plays a role in the determination of a capital sentence. This patter holds despite the fact that
homicide rates for both males and females have been relatively stable between 1980 and
2008. However, during this time period, female murder victims were almost six times more
likely to be the victim of intimate killings (Cooper & Smith, 2011, p. 10). Baumer, Messmer,
and Felson (2000) determined that male homicide offenders with female victims were more
likely to be prosecuted and convicted on the most serious charges in comparison to males
who killed males. An Ohio study determined that cases involving white female victims had
the greatest probability of attracting a death sentence (Holcomb, Williams, & Demuth, 2004,
p. 893). It is possible that homicides featuring female victims are more henious or aggravated
than male victim cases (Williams & Holcomb, 2004, p. 371).
These authors reached a similar conclusion following their re-analysis of the Baldus
capital sentencing data from Georgia. They determined that defendants who murdered
females were more likely to be sentenced to die than the killers of males. In terms of race,
cases involving white female victims were treated most harshly while those in which black
males were the victims were treated the most leniently (Williams, Demuth & Holcumb
2007, p. 885). A study of Colorado death sentences between 1972 and 2005 and cases in
which the death penalty was sought (1980-1999) determined that the deciding factors were
cases involving female victims and those in which blacks were charged with killing whites
(Hindson, Potter, & Radelet, 2006).
However, an analysis of North Carolina capital cases found that the white female victim
effect and any impact for race were eliminated by a multivariate analysis that introduced
control variables in a logistic regression format (Stauffer, Smith, Cochran, Fogel &
Bjerregaard 2006). It was speculated that the sex of the victim was related to other significant
variables such as victim/offender relationship and victim culpability that obscured the main
effect of the sex of victim. To consider this possibility a second North Carolina study of
capital cases determined that there was an almost 98 % increase in the probability that a
jury would recommend a death sentence in cases where the female victim was an
acquaintance of, rather than a stranger to, the defendant (Gillespie, Loughran, Smith,
Fogel and Bjerregaard 2013, p. 13). Another North Carolina study utilizing these data
considered sex-specific models to examine jury decision making in capital cases. Here, the
predictors of a death sentence in female victim cases were the number of mitigators and
the determination under North Carolina law that the homicide in question was especially
henious and cruel (Richards, Jennings, Smith, Sellers, Fogel & Bjerregaard 2014).
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Therefore, in addition to the race of the offender and victim, the sex of the victim is a
crucial variable that should be included in capital sentencing research.
Role of the Prosecutor in Capital Sentencing
Prosecutors must be involved in the attempt to eliminate racial disparity in capital
sentencing. Prosecutors control the flow of offenders to death row because they: 1)
formulate the charge and determine whether or not the death penalty is permitted if a
conviction is obtained, 2) have almost unbounded discretion to offer a life sentence in
exchange for a guilty plea in cases where capital punishment is possible and 3) even after
conviction, the prosecutor may or may not demand the death penalty (Zeisel, 1981, p.
466). Though their charging decisions may be well intentioned, they have often resulted
in racial bias (see Bohm, 2013).
Several studies of prosecutorial discretion provide evidence that racial differences in
capital case processing is present. Analyzing cases from 1976 to 1991 in Kentucky,
Keil and Vito utilized a statistical method that compared the prosecutorial decision to
seek the death penalty to a random process. They determined that this decision was
decidedly non-random: prosecutors were more likely to proceed capital when the
defendant was Black and the victim was White (Keil & Vito, 2006).
Evidence of racial bias in prosecutorial decision making has been found in cases
where black kill whites in a Midwest county (Sorensen & Wallace, 1999) and South
Carolina (Songer & Unah 2006). A Missouri based study (cases from 1997 to 2001) of
the prosecutorial decision to seek the death penalty determined that the place of the case
mattered. Defendants from St. Louis and Kansas City (the states’ two largest cities)
were less likely to be the subject of a capital trial and be sentenced to death than
defendants in the rest of the state (Barnes, Sloss, & Thaman, 2009, p. 307). Another
study involving Missouri determined that prosecutors “sought out the vulnerabilities in
defendants and selected defendants for capital trials on the basis of their ability to
convict, rather than on the facts of the crime” (Lenza, Keys, & Guess, 2005, p. 163).
Evidence of racial discrepancies was particularly notable: blacks who killed whites
were five times more likely to be charged with capital murder than whites who killed
blacks or whites who had white victims (Lenza, Keys, & Guess, 2005, p. 158).
One response by prosecutors confronted with these research findings was to seek the
death penalty in every eligible case and thereby eliminating any possibility of bias,
racial or otherwise (see Vito et al., 2013). This action is perilously close to the
unconstitutional result of making the death penalty mandatory. As Neal (2004) notes,
this method is an abandonment of prosecutorial discretion and “the people of Kentucky
have not elected Commonwealth Attorneys to exercise no discretion.” Neal asserts that
the question is not whether you are for or against the death penalty but it is whether the
death penalty should be subject to the same standards of nondiscrimination as any other
institution in the state (Neal, 2004, p. 20).
The U.S. Supreme Court has plainly condemned the complete absence of discretion in
capital sentencing. Following the Furman decision, several states made the death penalty
mandatory for certain crimes or categories of victims (i.e., police officers). The Court
subsequently rejected this elimination of sentencing discretion in Woodson v. North
Carolina and Roberts v. Louisiana and recognized that discretion was a crucial element
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in the constitutionality of capital sentencing (Bendramer, Bramnick, Jones III, &
Lippman, 1986-1987, p. 301). Furthermore, findings of purposeful racial discrimination
by the courts against a prosecutor “deeply impugns” their character and typically provokes
“angry and vehement reactions” (Baldus, Woodworth, & Grasso, 2007-2008, p. 149).
Methodology
The first portion of the current study attempts to build upon previous analyses of capital
sentencing in Kentucky and other states. Using data compiled from official court records
compiled by the Kentucky Department of Public Advocacy, we examined death eligible
homicide cases for the years 2000-2010 for the state (V=359). > Consistent with our
previous findings on the Kentucky capital sentencing system (that was modeled on the
original Baldus study) and other studies, this research focuses upon several variables present
in homicide cases.
Dependent Variables
The present study attempted to follow the stages in the capital sentencing system.
Therefore, the dependent variables mirror the prosecutorial decision points in that
system. First of all, the decision to seek the death penalty (0 = No, 1 = Yes) and a
second prosecutorial decision - whether or not to offer a plea bargain (0 = No, 1 = Yes).
Independent Variables
Here, the legal considerations in Kentucky’s capital sentencing system were measured.
Specifically, the aggravating circumstances listed under Kentucky law: murder cases
that also featured arson, kidnapping, rape, robbery, sodomy, burglary, murder for profit,
defendants with a history of violent offenses, homicides featuring multiple victims, a
law enforcement victim (or other special categories of victims) or the violation of a
domestic violence protection order. These aggravating circumstances were measured
dichotomously (0 = No, 1 = Yes). Categories were also collapsed (Concurrent Felony —
0=No, | = Yes; Multiple Aggravators — 0 = No, 1 = Yes). Both the race of the offender
and race of the victim were measured as 0 = White and 1 = Black. Sex of the offender
and victim were measured as 0 = Male and 1 = Female. Variables were also created to
measure white victim (0 = No, 1 = Yes). °
® Jefferson County cases were excluded from this portion of the analysis because the prosecution sought the
death penalty in all eligible homicide cases during this time period.
° It must be noted that the type of variables were restricted by the availability of the data. In addition, these
variables were based upon those utilized in the original Baldus study. While we do have a majority of the
original variables, we were unable to obtain data on: victin/offender relationship, victim culpability, heinous-
ness of the offense as well as offender demographic variables (age, education, drug/alcohol history, mental
health data). These omissions were largely due to the fact that the present study was based upon court data
while our previous Kentucky studies were based upon correctional files (including classification data and data
fiom the presentence investigation) as well as data from official Kentucky death certificates.
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Findings
Among these cases, the death penalty was sought by the prosecution over
60 % of the time (220/359=61.3 %). Here, the majority of capital cases
were pled (N=153-70.5 %). The highest percentage of these cases resulted
in a sentence of years (N=53-34.6 %). However, if the categories of Life
Without Parole and Life Without Parole for 25 years are combined, a
sentence of Life Without Parole would represent over half of this subcate-
gory of cases (77/153=50.3 %). Only one of these cases resulted in a
sentence of death.
Among these capital cases that went to the jury (64/220=29.5 %), the highest
percentage also resulted in a sentence of years (24/64=37.5 %). Juries levied the death
penalty in six cases and were more likely to impose a sentence of Life without Parole
(20/64=31.2 %).
Independent Variables: Frequencies
Aggravating Circumstances
Table 1 presents a breakdown of the aggravating circumstances present in
Kentucky Capital and Non-Capital Cases during this time period. The most
common aggravating circumstance present in capital cases was robbery (N=
127-41.1 %). Among non-capital homicide cases, the top ranked aggravating
circumstance was also robbery (N=91—50.6 %).
Table 1 Aggravating circumstances in Kentucky homicide cases: 2000-2010"
Aggravator Death sought Death not sought
Arson 175.5% 9 (5.0%)
Kidnapping 23 (7.5 %) 11 (6.1%)
Robbery 127 (41.1 %) 91 (50.6 %)
Rape 176.5%) 5 (28%)
Sodomy 103.2% 4 (22%)
Burglary 50 (16.1 %) 31 (17.2%)
Murder for profit 10 3.2%) 1 (0.5 %)
History of violent offenses 2 (0.6%) 105 %)
Muttiple victims 44 (14.2 %) 22 (12.2 %
Law enforcement vietim 4(12%) 2(1.1%)
Violation of domestic violence order 6 (1.9%) 3 (1.7%)
Total 310 180
"There was only one case where the use of a destructive device was an aggravator but it was not prosecuted as
a death penalty case. There were no cases involving a prison employee vietim
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Table 2. Combined aggravating circumstances in Kentucky homicide cases: 2000-2010
Category Death sought Death not sought Total
Muttiple aggravators 67 (67.0 %) 33 (33.0%) 100
Concurrent felony 185 (60.1 %) 123 (39.9 %) 308
In Table 2, we see that capital cases had more than one aggravating circumstance
present in the majority of instances (V=67-67 %). The majority of capital cases also
had a concurrent felony present (V=185-60.1 %). ?
Sex of Offender and Victim in Kentucky Homicide Cases
Table 3 indicates that males were most likely to be offenders in both capital (V=188
89.1 %) and non-capital (V=118-88.7 %) cases. In Table 4, males were also the most
probable homicide victim in capital (V=110-65.9 %) and non-capital (V=77-85.6 %)
cases. Notably, female victims were a stronger feature of capital (V=57-34.1 %) rather
than non-capital cases (V=13-14.4 %).
Race of Offender and Victim in Kentucky Homicide Cases
In Table 5, the data indicate that white offenders were prevalent in both capital (V=
160-75.5 %) and non-capital homicide cases (V=92-71.9 %). This pattern was also
present among victims listed in Table 6 with capital (V=134-83.8 %) and non-capital
(N=70-84.3 %) most likely to feature white victims.
Table 7, we can see that the majority of instances in both capital and non-capital
cases statewide featured a white offender and a white victim.
Analysis of Capital Sentencing Decision Making
These variables will now be examined in terms of two levels of capital sentencing
prosecutorial decision making: 1) the decision to seek the death penalty and once the
death penalty was sought, 2) the decision to seek a plea.
Seeking the Death Penalty — Bivariate Analysis
Table 8 presents a breakdown of how each of the independent variables influences the
decision to seek the death penalty individually. Here, the only variable that registered a
statistically significant effect was the presence of a female victim. Female victims were
present in over 34 % of the murder cases where the death penalty was sought compared
to over 14 % of the homicide cases were the death penalty was not sought. In addition,
the majority of female victim, death penalty cases (58.8 %) featured a sex crime
aggravator (rape and/or sodomy) — a relationship that was also statistically significant.
7 The category of Concurrent Felony combines Arson, Kidnapping, Robbery, Rape, Sodomy and Burglary),
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Table 3. Sex of offender in Ken-
tucky homicide cases: 2000 - 2010 Sex of offender Death sought Death not sought
Male 188 (89.1 %) 118 (88.7 %)
Female 23 (10.9 %) 15 (11.3 %)
Total 2u1 133
® Thus, the addition of the sex crime aggravator in female victim homicide cases led
prosecutors to seek the death penalty.
Recall that the previous capital sentencing research that discrimination by race of the
victim (white) was a consistent finding (U.S. General Accounting Office, 1990).
Therefore, Table 9 presents evidence that the death penalty in Kentucky was sought
in cases featuring a black offender and a white victim. In our subsample, these cases
were more likely to cross racial lines than cases featuring a white offender and a white
victim. Over half of the black offender cases featured a white victim and less than eight
percent of the white offender cases featured a black victim.
Seeking a Plea — Bivariate Analysis
Table 10 examines the individual factors that affect seeking a plea after the death
penalty was sought in the homicide cases. Here, the only statistically significant
relationship found involved cases that featured black offenders charged with killing
white victims. A plea was sought in over 26 % of the cases featuring other racial
combinations of offender and victim compared to nine percent of cases where blacks
were charged with killing whites.
Seeking the Death Penalty — Multivariate Analysis
The purpose of this analysis is to further examine the factors that relate to the stages of
capital sentencing decision making (i.e., death penalty sought or plea taken) by
including all of the independent variables simultaneously. Multivariate analysis can
then demonstrate if a bivariate relationship between the independent variable and the
dependent variable still holds true when all of the independent variables are taken into
account.”
Table 11 shows the results of the first binary logistic regression analysis that
examines the factors that relate to whether the death penalty was sought. The death
penalty is sought 3.17 times or 217 % more when the victim is female rather than male.
Therefore, the prosecutorial decision to seek the death penalty was influenced by the
presence of a female victim.
§ Percentage difference is statistically significant at 0.05 level. Chi-square Value = 5.036, degrees of freedom =
1, Phi Value = 0.174, Also notable among female vietim cases where the death penalty was sought were the
presence of multiple victims (13/37 or 35.1 %) and aggravators (18/37=48.6 %),
” Regression analysis provides the relationship through values of these sentencing decisions based on a
number of factors. Because these sentencing decisions are measured in binary categories (i.e., 1 = yes and 0
= no), Ordinary Least Squares (OLS) regression is inappropriate. OLS requires that the dependent variable be
measured continuously rather than dichotomously. Instead, we use binary logistic regression properly esti-
mates the effects of the independent variables on a binary dependent variable to perform the analysis (Allison,
1999; Menard, 2002).
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Table 4 Sex of victim in Ken-
tucky homicide cases: 2000-2010 Se oF victim Déathi sought Death not sought
Male 110 (65.9 %) 77 (85.6%)
Female 57 (34.1%) 13 (14.4%)
Total 167 90
Further consideration of female victim cases determined that the death penalty was
sought in the majority of these cases (57/70=81.4 %). Over 38 % of female victim
cases resulted in a sentence of life without parole (27/70=38.5 %) while three (3/70=
4.3 %) drew the death penalty. In cases involving female victims, the aggravating
circumstance that was most present was robbery (31/70=44.3 %), followed by burglary
(18/70=25.7 %) and a combination of rape and sodomy (12/70=17.1 %).
Seeking a Plea — Multivariate Analysis
Table 12 shows the results of the second binary logistic regression analysis where the
factors that influence the decision to plead the case after the death penalty were sought.
Here, one variable is statistically significant. Cases featuring a black defendant and a
white victim were 56 % less likely to result in a plea than cases featuring other
defendant/victim racial combinations. In addition, black offenders who were charged
with killing white victims and were not offered a plea were most likely to be sentenced
to life without parole (7/12=58.3 %) — the most serious penalty available absent the
death penalty. A plea was less likely to result when the homicide case featured a black
offender killing a white victim.
Statewide Disposition of Death Eligible Homicide Cases
In the second portion of this analysis, Jefferson County cases are added to provide a
breakdown of death penalty cases dispositions for the entire state. These totals are
presented in Fig. 1. During this time period (2000-10), the death penalty was sought in
over 70 % of Kentucky’s death eligible homicide cases. Of these cases, the majority
(N=283, 69.0 %) resulted in a guilty plea. Among these cases, almost one-third (32.4 %
- the highest percentage at this stage) resulted in a sentence of life without parole. One
death sentence was listed at this stage.
Among the cases where the death penalty was sought, over 30 % (123 cases) went to
the jury. Juries levied a sentence of years in over 34 % of these cases and a sentence of
life without parole in over 23 % of the cases. Seven cases (5.7 %) resulted in a death
sentence. Therefore, among the cases where the death penalty was sought, almost 30 %
Table 5 Race of offender in Ken-
tucky homicide eases: 2000-2010 Rate of offender Death sought Death not sought
Black 52 (24.5 %) 36 (28.1 %)
White 160 (75.5 %) 92(71.9 %)
Total 212 128
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Table 6 Race of victim in Ken-
tucky homicide cases: 2000 - 2010 Rave of vietim Death sought Death not sought
Black 26 (16.2 %| 13 (15.7 %)
White 134 (83.8 %) 70 (84.3 %)
Total 160 83
of the cases resulted in a sentence of life without parole (120/407) while the sentence of
death occurred under two percent of the time (8/407).
Conclusion
This analysis revealed that race was still a factor in one stage of the Kentucky capital
sentencing process. The prosecutorial decision to seek the death penalty was governed
and guided by serious factors — targeting those cases with female victims and cases
featuring multiple aggravating circumstances. Although the bivariate analysis revealed
an interaction effect that the death penalty was sought in cases where black offenders
were charged with killing white victims, this relationship was not sustained when other
independent variables were taken into account (multivariate analysis). Yet, the decision
to agree to a plea was influenced by the race of offender and victim. Black offenders
charged with killing a white victim were much less likely to benefit from a plea in a
capital case. '° The fact that the race of the offender (with or without the presence of a
white victim) was not related to the decision to seek the death penalty may be the result
of the passage of the Kentucky Racial Justice Act prior to the time period under
consideration.
Yet, the influence of the presence of a female victim is troubling. In effect, female
victim became an extralegal, aggravating factor in capital sentencing that is not defined
by statute. As mentioned previously, capital sentencing research has uncovered the
impact of female homicide victimization before. It has also been determined to be a
factor in homicide cases across the U.S. An examination of over 1300 homicide cases
by Franklin and Fear (2008) determined that male offenders who targeted female
victims received the most severe sentences when compared to any other victim/
offender gender combination. A recommendation concerning prosecutorial discretion
by Franklin (2010, p. 191) is worth consideration: “prosecutors” offices should rou-
tinely examine the outcomes of their decision making to help ensure that undue racial
disparity, or disparity coming from extralegal sources such as race, gender and age,
does not exist or can at least be corrected where it does exist.”
When we include Jefferson County cases (see Vito et al., 2013) for this time period
and examine the statewide disposition of eligible death penalty homicide cases, it is
obvious that Kentucky juries had a marked preference for a sentence of life without
parole in death penalty cases. Life without parole was levied by the jury in 23.6 % of
death penalty cases statewide (29/123) while they sentenced defendants to death less
'° However, a distinction must be made in this finding. The data collected for this variable reflect the result of
the case ~ specifically, whether the defendant was convicted by a jury or a plea. It does not indicate whether a
plea was offered and then withdrawn
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Table 7 Race of offender and race of victim in Kentucky homicide cases: 2000 — 2010
Race of offender & vietim Death sought Death not sought Total
Black kills white 22. (13.9 %) 1721.3 %) 39 (16.3%
Black kills black 17 (10.8 %) 9 (11.3 %) 26 (10.8 %)
White kills black 9 (5.7%) 4(5.0%) 14 (5.7%)
White kills white 110 (69.6 %) 50 (62.5 %) 160 (67.2 %)
Total 158 80 238
than six percent of the time (7/123) (See Fig. 3). Given the time and effort spent on
capital cases, these findings question whether the capital sentencing process is a wise
use of resources of Kentucky courts.
However, there are limitations to the research findings. First of all, this portion of the
study excluded Jefferson County homicide cases due to their policy of seeking the
death penalty whenever and wherever an aggravating circumstance was present.
Therefore, the anal of the factors related to the seeking and sentencing of death
apply to the entire state minus Jefferson County. No jurisdictional pattern was deter-
mined. The research results revealed in this Kentucky capital sentencing study are a
reflection of a system wide pattern. Therefore, they are not attributable to the actions of
one county, one prosecutor or one defense attorney. They are also not the result of one
defendant being discriminated against. Yet, they do reflect the results of the entire
Kentucky capital sentencing process and should be illuminating to those officials
responsible for its operation in its entirety.
Finally, the total number of cases examined was 359 but data was often incomplete
for certain variables — especially race of the victim. These data should have been easily
obtainable but they were not. Following the Furman and Gregg decisions, 26 states
Table 8 Seeking the death penalty ~ bivariate analysis
Death penalty sought: Yes No Total
Female victim*: Yes 57 B4.1%) 13 (14.4%) 70 (27.2%)
No 110 (65.9 %) 77 (85.6%) 187 (72.8 %)
Total 167 90 2387
X Aggravators: Yes 67 (30.7 %) 33 (23.7%) 100 (28.0 %)
No 151 (66.3 %) 106 (76.3 %) 257 (72.0%)
Total 218 139 337
X Victims: Yes 44 (20.2 %) 22 (15.8 %) 66 (18.5 %)
No 174 (79.8 %) 117 (84.2 %) 291 (81.5 %)
Total 218 1B9 357
White Vietim: Yes 134 (83.8 %) 70 (84.3 %) 204 (84.0%)
No 26 (16.3 %) 13 (15.7%) 39 (16.0%)
Total 160 90 243
* Percentage difference is statistically significant at 0.05 level. Chi-square Value=11.437, degrees of freedom =
1, Phi Value=0.211
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Table 9 White victim & race of offender in Kentucky homicide cases: 2000 — 2010 where the death penalty
was sought
White Victim White Offender Black Offender
Yes 110 (92.4 %) 22 (56.4 %)
No 9 (7.6 %) 17 (43.6 %)
Total 19 39"
Percentage difference is statistically significant at the 0.05 level. Chi-square value=27.31. Cramer’s V=
0.419
included comparative proportionality review as a super due process element in their
capital statutes. Kentucky is one of 25 death penalty states whose capital punishment
statute that presently requires comparative proportionality review of capital cases on
appeal. Some states have adopted statutes to collect the data necessary to conduct
systematic capital case comparative proportionality review. For example, Texas and
Tennessee have adopted legal requirements to collect and compile data on cases in
which the death penalty was sought. |!
In Kentucky, the data collection procedure for review of a death sentence is legally
specified in KRS 532.075 (effective date: December 22, 1976). This statute specifies
data collection procedures to be followed by authorizing the Chief Justice to “assign an
administrative assistant who is an attorney the following duties”:
a. To accumulate the records of all felony offenses in which the death penalty was
imposed after January 1, 1970, or such earlier date as the court may deem
appropriate.
b. To provide the court with whatever extracted information it desires with respect
thereto, including but not limited to a synopsis or brief of the facts in the record
concerning the crime and the defendant.
c. To compile such data as deemed by the Chief Justice to be appropriate and relevant
to statutory questions concerning the validity of the sentence.
This statute also directs the Administrative Office of the Courts to “provide such
staff, services, and data as are necessary to the proper consideration of any matter
relating to the imposition of the death penalty in any case.”
The Kentucky ABA Death Penalty Assessment Team made the following recom-
mendation in their report, noting that Kentucky was not in compliance with it:
Jurisdictions should collect and maintain data on the race of the defendants and
victims, on the circumstances of the crime, on all aggravating and mitigating
"' The requirements of the Tennessee Supreme Court Rule 12 (“Report of the Trial Judge in First Degree
Murder Cases”) are very extensive. Specifically, it consists of six sections: A. Data Concerning the Trial of the
Offense (14 variables), B. Data Conceming the Defendant (17 variables), C. Data Conceming Victim, Co-
Defendants and Accomplices (15 variables), D. Representation of the Defendant (10 variables), E. General
Considerations (3 variables) and F. Chronology of the Case (10 variables). Unfortunately, these data have not
been collected in a complete fashion in Tennessee (See Scheb et al., 2008).
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Table 10. Seeking a plea ~ bivariate analysis
Pled: Yes No Total
Black Kills White® Yes 10 (9.0 %) 12 (26.7 %) 22.(14.1 %)
No 101 (91.0 %) 33 (73.3 %) 134 (%)
Total M1 45 156
Concurrent Felony: Yes 128 (84.2 %) 55 (85.9 %) 183 (84.7 %)
No 24 (15.8%) 9 (14.1%) 33 (15.3 %)
Total 152 64 216
Female Vietim: Yes 40 34.5 %) 17 4.7 %) 57345 %)
No 76 (65.5 %) 32 (65.3 %) 108 (65.5 %)
Total 116 49 165
X Aggravators: Yes 52 34.2 %) 15 (23.4 %) 67 (31.0%)
No 100 (65.8 %) 49 (76.6 %) 149 (69.0 %)
Total 152 64 216
X Victims: Yes 33 (21.7%) 11 (17.2%) 44 (20.4%
No 119 (78.3 %) 53 (82.8 %) 172 (79.6 %)
Total 152 64 216
White Vietim: Yes 98 (86.7 %) 35 (77.8 %) 133 (84.2 %)
No 15 (13.3 %) 10 (22.2 %) 25 (15.8 %)
Total 113, 45 158
"Percentage difference is statistically significant at the 0.05 level, Chi-square Value=8.241, degrees of
freedom = 1, Phi Value=0.230
circumstances, and on the nature and strength of the evidence in all potential
capital cases (regardless of whether the case is charged, prosecuted, or disposed
of as a capital case). This [sic] 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.
The Kentucky ABA Death Penalty Assessment Team also recommended that “the
Commonwealth thoroughly reexamine the impact of racial discrimination in capital
Table 11 Logistic regression
analysis - death penalty sought
“p<0.05
© Springer
Measure b SE Exp(b)
Multiple deaths -0.21 047 081
Concurrent felony 0.66 0.48 0.52
Multiple aggravators 0.74 041 2.09
Black kills white 0.07 0.39 1.07
Female victim 1.16* 0.36 3.17
~2Log Likelihood = 290.24
Cox & Snell R-square=0.07
Nagelkerke R-square=0.10
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Table 12 Logistic regression
satpaie~ plea Measure b SE. Exp(b)
Multiple deaths 0.10 0.46 0.90
Concurrent felony 0.08 0.46 0.93
Multiple aggravators 0.34 0.39 1.40
Black kills white -0.83* 037 0.44
Female victim 0.12 031 0.89
—2Log Likelihood = 285.59
Cox & Snell R-Square=0.03
2 Nagelkerke R-Square=0.04
"p<0.05
sentencing since the adoption of the KRJA in 1998 to determine what effect, if any, the
KRJA has had on ameliorating racial discrimination in capital cases” and noted that to
“the best of our knowledge, no jurisdiction or entity within the Commonwealth collects
Sentence of Years
Pled a Guts)? |
life Sentence
578)
Death Penalty Sought
Eligible Cases (N
Swen ———
DEATH 7)
Total number of cases and percentages do not equal 100% in some cases
due to missing data on that variable.
Fig. 1 Disposition of Kentucky death eligible cases (2000-2010) where the death penalty was sought
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Am J Crim Just
and maintains the data” prescribed in the above recommendation (American Bar
Association, 2011, p. 359).
Accountability requires that such data bases be carefully constructed and
maintained. When questions of discrimination have been levied against the
police (Higgins, Vito, & Grossi 2012a, Higgins, Vito, Grossi & Vito, 2012b)
and juvenile justice system (Huizinga et al., 2007), agencies took the steps
necessary to collect data so research on these inquiries could take place.
There is no reason why courtroom officials in Kentucky cannot do the same.
Despite legal requirements, Kentucky fails to collect data to assess the
factors that influencing the seeking and imposition of the death penalty.
Acknowledgments The authors wish to express their gratitude to the Proteus Fund and the
following individuals who collected data and information for this study: Ed Monahan, Dan Goyette,
Glen McClister, Glenda Edwards and Jeff Sherr. This research was supported by a grant from the
Proteus Action League.
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Gennaro F. Vito is a Professor and University Scholar in the Department of Justice Administration at the
University of Louisville. He also serves as a faculty member in the Administrative Officer’s Course at the
Southern Police Institute. He holds a Ph.D, in Public Administration from The Ohio State University. He is a
past president and Fellow of the Academy of Criminal Justice Sciences and a recipient of their Bruce Smith
Award. He is a former editor of the American Journal of Criminal Justice. He has published journal articles on
such topics as: capital sentencing, police consolidation, police traffic stops, policing strategies for dug
problems in public housing, attitudes toward capital punishment, and the effectiveness of criminal justice
programs, such as drug elimination programs, drug courts, and drug testing of probationers and parolees. He is
the co-author of nine textbooks in criminal justice and criminology including Practical Program Evaluation in
Criminal Justice (Elsevier), Criminology: Theory, Research and Practice (Jones & Bartlett) and Organiza
tional Behavior and Management in Law Enforcement (Prentice Hall).
George E. Higgins is a Professor in the Department of Justice Administration at the University of Louisville.
He received his Ph.D. in Criminology from Indiana University of Pennsylvania in 2001. He has published
more than 100 journal articles and book chapters primarily in the areas of criminological theory testing, racial
profiling, and cybercrime. In 2009, he was awarded the Coramae Richey Mann Leadership Award, which is
the top award from the Minority and Women’s Section of the Academy of Criminal Justice Sciences for
research and leadership in race and ethnicity research, He is the past editor of the American Journal of
Criminal Justice and the current editor of The Journal of Criminal Justice Education His latest textbook is
Practical Program Evaluation in Criminal Justice (Elsevier).
Anthony G. Vito is a Doctoral student in in the Department of Justice Administration at the University of
Louisville where he presently serves as managing editor of The Journal of Criminal Justice Education. He
holds an MS. in Justice Administration from the Department of Justice Administration at the University of
Louisville. His publications on drug abuse, police management and capital sentencing have appeared in the
International Journal of Police Science and Administration, American Journal of Criminal Justice, Journal of
Ethnicity & Criminal Justice, and Deviant Behavior:
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