Confidential – Not for Distribution
Kentucky Death Penalty Summit
Kentucky Home of the Innocents
June 14-15, 2012
June 14:
Where are We? Opportunities and Challenges
New and Existing Opportunities:
1. ABA Study (weight and value)
2. ABA Study – articulation of problems
3. ABA Messengers & messages
4. No executions and no new sentences
5. High Reversal rate
6. High number of acquittals in death penalty cases causing consternation about the
waste (including among judges)
7. Historically, KY at the forefront of the social justice reforms (creation of Public
Defender, Racial Justice Act, Mental Retardation exclusion); have also
successfully defeated “bad” bills
8. Tom Wine – New L’ville Commonwealth’s Attorney
9. Former Governor(s) possibly supportive
10. Budget crisis
11. Polling data resonates with lawmakers (ABA polling)
12. National climate in favor of repeal
13. Active victims’ family members (13-14 that can be called on); no active family
members vocal in support of the death penalty
14. Wrongful convictions/innocence cases (12-13) - Exonerations in non capital cases
15. Former prosecutors (11 who signed op-ed) support ABA report and call for
moratorium
16. Strong support in Senate (Gerald Neal)
17. Lethal injection – de facto moratorium
18. Governor is in his second and final term
19. No current public discussion on the death penalty; opportunity to discuss crime
problem perception
20. 2013 not a budget year in the general assembly
21. 7-8 Senators in favor of repeal
22. Al Cross – could convene the press for an information session on status of death
penalty and ABA report
23. Strong public defender
24. Redemption resonates with some lawmakers and decision makers
25. KY News Service and Forum
26. Media
a.
Courier-Journal supports repeal
b. Floyd City Times supports repeal
c.
Lex Herald Leader supports moratorium
d. Owensboro Messenger supports repeal and its news department is
dedicating a lot of reporting space to the death penalty.
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Challenges:
1. Tradition of multiple task forces and years of discussion before any headway is
made
2. Governor in second term
3. Commonwealth Attorneys Association hostile to reform and repeal
4. Attorney General
5. Prosecutors Advisory Council
6. Rural media in support of DP (Paducah Sun)
7. Aging partners, including among religious community
8. Southern Baptist on record in support of death penalty
9. Current composition of Judicial Rules Committee
10. Speaker of the House – Greg Stumbo
11. Senate is up for reelection – half of members every two years;
12. Many things in flux in the General Assembly, so folks are not courageous in these
circumstances
13. Composition of the House - Democrats
14. Some perception that the ABA study is biased
15. Some perception about violent crime in KY – misperception that it is worse than
it is
16. Possible bad cases – recent violent crime spate in Jefferson including murder of
children
17. Low death sentences and executions means that citizens are not thinking about the
death penalty as a “problem” per se
18. Only a single death row exonoree (Larry Osborne)
19. KCADP challenges
a.
No money/fundraising
b. Board with limited geographic diversity
Unknown:
1. Governor in last term
2. Senate President: how does his wife running for AG affect whether he will
support reform or repeal? He may only have two years left in Senate, but how
does it affect us?
3. No current public discussion on the death penalty
Determining Strategy Toward Repeal:
Possible Options under consideration and discussed: (and/or)
-
Cost Bill
-
MI Bill
-
Support repeal
-
Study Commission or Task Force
-
Study of the ABA
-
Straight to repeal
-
Work the tactics – develop tools and support
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Tactics/Goals: Each are accompanied by an action item and description of timing needed
to accomplish the goal. Priorities are in BOLD.
1. Now: Take the temperature of the entire Legislature
– private interviews and
visits
a.
Ensure that the right people are interviewing the legislators to figure out
where they are on death penalty-related issues and educate them (active
roll call, in both district and capital)
i. find out deeper detail on what makes the legislator tick
ii. Bring the ABA Report to all meetings; use opportunities to get it
out there
iii. Inform them of the momentum in other states
iv. Inform them that Kentucky executes mentally ill people
2. Now: Recruit unlikely allies
3. Unknown Start Date: Legislative hearings on repeal without votes:
Historically, in Kentucky legislation must be reintroduced repeatedly before it is
adopted. This makes legislators more comfortable with change, educated, hear it
often enough, it’s the thing to do.
4. Polling
: closer to time of repeal
5. Now: Governor Strategy
(see below)
6. Unknown start date: Speaker of the House Strategy
: (see below). Note that
where campaigns have lost is when they have ignored a major target and not
done deep analysis and strategy on the person. Need full day of brainstorming on
him.
7. Intermediate step
good if doesn’t hurt ultimate goal, might be easier, but takes
time.
a.
Mental Illness Bill?
8. Unknown Start Date: Amicus Brief/Judicial Branch Challenge to the KY
Death Penalty – good supplement or alternative if Stumbo running for Gov in
2015 and Stivers is President of Senate; Gives the Court an opportunity to say
some bad things about the death penalty, regardless of outcome
a.
Who would write it? Who would formally be author?
b. Who else to consult with in creation of the brief (Tony Amsterdam,
George Kendall, Steve Bright); DPA
i. What other litigators could be consulted?
c.
Contingency planning needed on what happens if you lose and the death
penalty is validated by the KY Supreme Court
d. Discussion on the legal architecture of the argument
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i. Sentencing decisions of juries: Rehnquist dissent in Atkins –
nothing is more determinative of whether the death penalty
comports with evolving standards of decency than the decisions of
juries. In KY, juries have not imposed a death sentence in 2 years.
ii. Opinions of experts and ALI’s decision to repeal the entire MPC
on the death penalty
iii. “Evolving standard of Due Process”: inherent tension between
individualized sentencing v. non-arbitrary imposition of the death
penalty
iv. Lack of proportionality
v. Findings of ABA Assessment – institutional and systemic problems
that are not fixable
vi. Others?
e.
What is the case where this comes up? Does a record need to be created?
(Consulting litigators would help with this)
9. Start 2013: Cost Analysis
a.
NJ example - Cost and trade-off
i. 4-part argument
1. DP expensive
2. DP more expensive that LWOP
3. You are not getting anything for what you are paying
4. And here is what you could get instead for what you are
paying for the DP
ii. Get nuggets of data
iii. Explain everything that has been cut by the General Assembly
(schools, courts closed, etc)
b. Problems with timing if cost study
i. If raised too early, then they’ll go after your budget
ii. When you get close to repeal and are raising the cost issue, then
legislators may say that since KY is not executing anyone,
supporting the death penalty is the only way show I am tough on
crime
c.
How to get the data? Find a source that is respectable
i. Rebut the argument that you “can’t put a value on a human life.”
Response: Actuaries do this everyday
ii. Ask for Sen. Jensen’s assistance in developing the cost data – find
a person that Jensen is comfortable with
iii. Also ask for how much it would cost to bring the system in to
compliance with the Assessment Team’s recommendations
iv. If Jensen says no, then pursue with the Governor’s office to come
up with the numbers
v. Auditor not likely to do this
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10. Wrongful Conviction/Innocence
(Not discussed in any detail at the meeting. See
NJ example of Innocence Report that was never released).
STRATEGY
Plan A: Repeal in 2014: Best option if Stumbo running for Gov in 2015 and Stivers is
President of Senate
Plan B: Repeal in 2015: Governor term ends in 2015, no legislative elections, non-
budget year; possible obstacle: Greg Stumbo running for Governor in 2016 (or Jack
Conway, Crit Luallen)
In the interim, switch to MI reform if adoption of MI bill is serious: Repeal by 2014
or 2015, while seeing what kind of traction the mental illness bill receives
a.
If adoption of the MI bill appears serious then engage in strategic move
toward moving the MI bill
b. If MI Bill gets a vote but fails, must engage in a thank you campaign (“As
an opponent of the death penalty, thank you for supporting this bill.”)
c.
If the MI bill does not pass, dedicate resources wholly to repeal
2. Engage in capacity building between now and start of the 2013 session, including
doing legislative interviews
3. Other incremental reforms: Propose comprehensive list of reforms including a
fiscal note
a.
Serves as a constant reminder of all the problems
b. What does coalition say about a reform, rather than a repeal bill? “It’s a
good bill, but repeal is cheaper and easier.” (And that is what your
legislative colleagues in other states have figured out, too.)
i. Ask Celeste for briefing book
Targets: Targets are prioritized. A planning session of all targets must be
conducted. Questions to answer are: Who are they? What do they need to hear? And
who needs to tell them?
HIGH PRIORITY
1. Governor
a.
The Ask:
i. Sign no warrant and maintain the moratorium - no executions until
integrity of death penalty process is ensured.
ii. Deal with the execution protocol
iii. Draw attention to ABA Report and express concern about the death
penalty
iv. Commutation of all death sentences
b. Messages
i. Legacy – needs to fully understand what he is possibly facing;
possibly have a firm’s lawyers lay out all of the legal options and
that he has a potential large number of executions coming his way
ii. Lethal injection options
iii. Commutation options
iv. Integrity of system
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v. Constitution does not require you to sign death warrants
vi. Right thing to do is to suspend executions
vii. Victims to counter concerns of Wilson case
viii. Lawyers to counter concerns of Wilson case
c.
Messengers
i. Messenger to explain all of the options
1. DPA to draft the memorandum
ii. Advice on Governor
1. Ellen Hesen (FIRST MEETING) – Pat, Mary Ellen
(ASAP)
a.
intelligence gathering
b. Who is best to bring the memo to the Governor?
c.
How to approach Hollie Hopkins, if you can
approach Bill Lear
2. Nina Bonnie (friend of Jane Beshear) – Don, Pat, Mary
Ellen (July 1)
a.
Educate Nina on how to influence Jane to influence
the Governor
b. Legacy issues
iii. A-Team meet with Governor (Keller- maybe not Johnstone; Bob
Lawson) – by July 15 – Hollie Hopkins (ask Diana and Bob)
1. Give him reasons to not sign any executions warrants
2. Explain problems with the system and reforms
iv. Jennifer Moore – Don (July 1)
1. Give political advice to Governor – why not bad for you
and why not bad for Democrats
2. And I will support you in doing this
v. Kennedy Helm (Beshear’s former law partner) – Don (July 1)
1. Legacy argument
vi. Larry Hayes: Chief of Staff and head of Econ Development
cabinet for the Governor – who is the right person?
1. Bill Richardson to call Larry Hayes?
2. International argument – executions will embarrass
Kentucky
vii. Hollie Hopkins – TBD (depending A-Team meeting with Governor
and discussion with Ellen Hesen)
1. Protocols – specifics – does the Governor know what all of
his options are
viii. Katie Dailinger – Sheila – July 10
1. Prime Katie on the whole spectrum of issues
ix. Secretary Brown – check in with A-Team who met with him
x. Coleman Elridge – Marian and Pat – later this summer
2. Speaker of the House Stumbo
a.
The Ask:
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i. Allow a vote (on any DP bill)
b. Message – political (no cogent argument about the death penalty with him
i. Get his caucus members to ask for it
1. Make it inevitable
2. Make it in his best interest – friendly climate
a.
Majority of his members has to be supportive
b. Or members need to tell him to vote for it
c.
Messengers
i. His caucus
ii. Grassroots
iii. Grasstops
iv. Progressive Louisville and Lexington Democrats
v. Victims family members
vi. Law enforcement
vii. Prosecutors or former prosecutors
3. Senate President David Williams
a.
Ask:
i. Stay out of the way
ii. Actively support
iii. Possibly co-sponsor bill
b. Strategy/message
i. Unknown: What does his wife’s entry into the AG race mean for
the death penalty?
ii. Legacy issue may resonate with him
c.
Messengers (need to make assignments for reaching out to these folks)
i. Listens to legislators from other states (active in Council of State
Governments)
ii. Earl Ray of West Virginia
iii. Ellen Williams
iv. Renee Niebert – Jason – Oct. 1
d. Possible Messengers
i. Mike Shea
ii. Leonard Lawson
iii. Bill Niebert
iv. Hershel York – Marian - Summer – to see where he is on the issue
v. Robyn Williams - Jason
OTHER HIGH TARGETS
4. Senate Judiciary Committee Chair
5. House Committee Chair Tilley (who has an opponent in this election)
6. DA Wine
7. Attorney General
8. Commonwealth Attorney Wine (Jefferson)
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9. Commonwealth’s Attorneys
10. All 5 members of House Democratic Leadership
11. Republican Leadership
a.
Hoover (House)
b. Stivers (Senate)
12. Conservatives - generally
13. Rotarians
14. Don and Mira Ball – Horse folks, UK supporters
a.
Marian to reach out
15. Baptist pastors
a.
Hershel York
16. Methodists
17. Jewish Community
MEDIUM
18. Louisville West End Task Force – Blaine Hudson
19. Kentucky Bar Association
20. Public defenders – high for information sharing purposes
21. KACDL
22. Former Supreme Court Justices
23. Optimist Clubs
24. Students
LOW
25. NAACP
26. Law school deans
27. Gov.Patton
28. Herald-Leader
29. Labor Unions
30. NAMI
June 15, 2012
Who are the Legislative Champions?
1. Senate
a.
Gerald Neal - D
b. Julie Denton - R
c.
Jimmy Higdon - R
d. Freshman Senators - R
i. Need to find where they stand – Kate and Mica
e.
Tom Jensen - R
2. House
a.
Sandy Overly – Kelly Flood to ask where she is on this
b. Julie Adams
c.
Sarah Beth Gregory
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What infrastructure do you need? Envision a $100-$120K budget
1. Need a campaign coordinator
a.
Skills needed
i. Energy
ii. Ability to juggle
iii. Social media savvy
iv. Communicator
v. Organizer
b. Full or part time: Should be full time
c.
$60,000 salary (40K + 20K with benefits)
2. Kaye – Admin
3. Free office space
Tools in the Toolbox
1. ABA report
2. Good website, tweet, blogging
3. Good webmaster – social media volunteer
4. Constant contact
5. Database – 1000; 200 are paid members
6. Access to legislative action through
a.
council of churches (1200)
b. ACLU (?)
c.
Catholic Conference (1200)
d. NCADP
e.
WTI
f.
MVFHR
g. Death row inmates’ family members
7. Kentucky News Connection access
8. KCADP Board (including a lobbyist)
9. Taylor-Gray (public affairs)
10. ABA Assessment Team
11. Good relationships with the press – coverage, op-eds
What do you Need?
1. PR firm to assist KCADP on pro bono basis
2. Update fact sheets
3. Implementation/Distribution
Next Steps/Follow-up:
1. Check-in calls to update on KY developments – Celeste and Jeremy
a.
General check in with Dick Dieter, Diann, possibly EJ USA, Laura
Burstein – to update on KY and discuss national implications and national
development implications for KY
b. Lethal Injection check in with Berkley Clinic
2. Next meeting by July 20th – KAYE (Jeremy to assist)
a.
Prioritize more on the targets
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b. Identify the targets moveable by the grassroots – Abe B. to assist
3. Check circulated noted against Post-It Sheets – KAYE
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