SOME TALKING POINTS ON THE ABA ASSESSMENT TEAM REPORT
*¢ The ABA Death Penalty Assessment Team on the Death Penalty has conducted an exhaustive
study how the death penalty is being carried out in our state and its findings are deeply
troubling.
© 62% of Kentuckians in a poll in early December favor the temporary suspension of executions
while a more in depth study occur.
¢ KACDL supports the ABA Assessment Team’s support for a moratorium on executions, and calls
upon the Governor, the Attorney General, and policy makers to immediately impose a
moratorium on the death penalty until they have an opportunity to study the ABA Assessment
Team Report and implement the recommendations made there.
*¢ KACDL supports the ABA Assessment Team’s recommendations, particularly those with regard
to eyewitness identification reform, videotaping statements of defendants, eliminating the
death penalty for the severely mentally ill, preservation of evidence, improving significantly the
instructions given to jurors in capital cases, and fully funding capital representation.
¢ The effort by the Assessment Team was groundbreaking as it was the first time an independent
comprehensive evaluation of all death penalty cases has been conducted in Kentucky.
*¢ The Assessment Team conducted a highly professional examination of the Kentucky death
penalty. It consisted of in-state experts including former Kentucky Supreme Court Justices who
were trial court judges, law professors and other attorneys.
*¢ The Assessment Team's report focuses on fairness and accuracy in capital cases—not pro or con
with regard to the death penalty.
¢ The Report identifies a number of serious problems with the use of the death penalty in
Kentucky.
¢ The report makes a series of important recommendations that will address the problems
identified with the death penalty.
ABA PRESS RELEASE
AMERICAN BAR ASSOCIATION
Kentucky Assessment Team on the Death Penalty
For Release at 10 a.m. EST, December 7, 2011
Two year assessment of death penalty procedures prompts call for
suspension of executions in Kentucky
Report concludes ‘serious problem areas persist’
Poll shows majority of Kentuckians support suspension
FRANKFORT, Ky. - Kentucky should temporarily suspend executions until serious
issues related to fairness and accuracy in the imposition of death sentences are
addressed, according to a report resulting from a two-year review of capital punishment
in the state.
The review by the Kentucky Assessment Team, which included attorneys, former
Kentucky state Supreme Court justices and law school professors, produced such
troubling findings as:
Of the last 78 people sentenced to death in Kentucky, 50 have had a death
sentence overturned on appeal by Kentucky or federal courts. That is an error
rate of more than 60 percent.
e Evidence in criminal cases is not required to be retained for as long as a
defendant remains incarcerated, and the problem of lost evidence significantly
diminishes the effectiveness of a state law that allows post-conviction DNA
testing prior to execution. Such lost or missing evidence prevents exonerating
innocent people and can prevent apprehension of the guilty.
¢ There are no uniform standards on eyewitness identifications and interrogations,
and many of Kentucky's largest law enforcement agencies do not fully adhere to
best practices to guard against false eyewitness identifications and false
confessions, two of the leading causes of wrongful conviction nationwide.
¢ Kentucky public defenders handling capital cases have caseloads that far exceed
national averages and salaries that are 31 percent below those of similarly
experienced attorneys in surrounding states. Private attorneys who take on
representation of a person facing the death penalty make far less than other
attorneys contracted by Kentucky to perform legal services on civil matters.
At least 10 of the 78 people sentenced to death were represented by defense
attorneys who were subsequently disbarred. There are no statewide standards
governing the qualifications and training of attorneys appointed to handle capital
cases.
e Asurvey of jurors serving in capital cases found a disturbingly high percentage
failed to understand sentencing guidelines before deciding whether or not a
defendant should be executed. This is not the fault of the jurors, but rather the
failure to adequately instruct the jurors.
2
There is no mechanism in place to guide prosecutors in deciding what charges to
bring to support the non-discriminatory application of the death penalty across
the state.
e Kentucky does not have adequate protections to ensure that death sentences
are not imposed or carried out on a defendant with mental disabilities.
e There is a lack of data-keeping throughout the administration of the death penalty
in Kentucky, making it impossible to guarantee that the system is operating fairly,
effectively and efficiently.
The team further cautioned that the ongoing fiscal crisis faced by the Commonwealth
would undoubtedly lead to greater risk of error in death penalty cases.
The assessment team was established under a project of the American Bar
Association that was created in 2001 to collect and monitor data on domestic and
international death penalty developments. The Kentucky review, which began in late
2009, was the project’s ninth state-level assessment.
“| commend the Kentucky team for its thorough scholarship and detailed analysis of
the Commonwealth's capital punishment system,” said American Bar Association
president and Kentucky native Wm. T. (Bill) Robinson III. “The team is comprised of
some of Kentucky's best lawyers and legal experts, all of whom are committed to
assuring fairness in the administration of justice,” he added.
The assessments use as a benchmark ABA protocols covering key aspects of death
penalty administration. Assessment team members are not required to support or
oppose the death penalty, and Kentucky’s members have varying perspectives on
capital punishment. All agreed, however, to use the ABA protocols as a framework for
their review.
“It is the Assessment Team’s unanimous view that so 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,” the report noted.
“To this end, Kentucky has made substantial strides in several areas” including a
statewide public defender system, a statute allowing post-conviction DNA testing and the
adoption of a Racial Justice Act.
But the 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,” the report added,
prompting the call for a suspension of executions.
“We came in to this with no real idea of what we would find,” said Linda Ewald,
University of Louisville Louis D. Brandeis School of Law, who co-chaired the assessment
team. “But at the close of our two-year deliberations, we were left with no option but to
recommend that the Commonwealth halt executions until the problems we identified are
remedied. This report is really about the administration of justice in Kentucky.”
Arecent poll shows that a majority of Kentuckians support a suspension of executions
to allow time for problems within the system to be remedied. The November 30-
December 4 survey of 405 most likely voters statewide found 62 percent support a
temporary halt to executions. The support was consistent across the state: a majority of
men, women, urban, suburban, and rural, Republican, Democratic, and Independent
voters all favored a temporary halt to executions. The poll, with an error rate of plus or
minus 4.9 percent, was conducted for the Kentucky Assessment Team by Lake
Research Partners of Washington, D.C.
The team issued a series of recommendations to address the problems identified in
the assessment. Among them:
3
e Kentucky must guarantee proper preservation of all biological evidence in capital
cases, and courts should order DNA testing if the results could create a
reasonable probability that a defendant should not have been sentenced to
death.
e Law enforcement training and practices should comport with well-known best
practices to promote apprehension of the guilty and prevent conviction of the
innocent.
e Kentucky should adopt statewide standards governing the qualifications and
training required of defense attorneys in capital cases.
e Kentucky should provide additional funding to ensure defense attorneys who
represent indigent capital defendants are paid at a rate to ensure the high quality
provision of legal services in such complex and demanding cases as a death
penalty case.
¢ Guidelines governing the exercise of prosecutorial discretion in death penalty
cases should be adopted for statewide application.
e Kentucky should establish a statewide clearinghouse to collect data on all deatheligible
cases.
e Kentucky’s post-conviction rules and practices should be amended to permit
adequate development and consideration by the courts of an inmate’s claims of
constitutional error.
¢ To improve death penalty juror comprehension, the state must revise the jury
instructions typically given in capital cases.
¢ Shortcomings of the Kentucky Racial Justice Act must be corrected to ensure
that the Act serves as an effective remedy for racial discrimination in death
penalty cases.
e Kentucky should adopt legislation exempting the severely mentally ill from the
death penalty.
The other team co-chair was Michael J.Z. Mannheimer of the Northern Kentucky
University Salmon P. Chase College of Law. Additional members were Michael Bowling,
former state representative and an attorney with Steptoe & Johnson in Middlesboro;
Allison Connelly of the University of Kentucky College of Law; former Supreme Court
Justice Martin E. Johnstone of Prospect; former Supreme Court Justice James Keller of
Lexington; Frank Hampton Moore Jr., an attorney with Cole & Moore in Bowling Green;
and Marcia Milby Ridings, an attorney with Hamm, Milby & Ridings in London.
Under the ABA project, similar state assessment teams have examined the
administration of the death penalty in Alabama, Arizona, Florida, Georgia, Indiana, Ohio,
Pennsylvania and Tennessee; the review has resulted in a recommendation for a
moratorium on executions in five of the eight states.
The full report is available at: http://ambar.org/kentucky
HE
Contacts:
Anne Nicholas Diana Taylor
American Bar Association Taylor-Gray Associates
202-662-1097 502-226-8307
Anne.Nicholas@americanbar.org diana@taylor-gray.com
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.
i
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 Justice:
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
I, 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 Team1 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.2 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.
1 The membership of the Kentucky Death Penalty Assessment Team is included infra on page 3 of the
Kentucky
Death Penalty Assessment Report.
2 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.
iii
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.
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).
[2] 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).
[2] 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 videoor
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).
(2 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).3 With fiftyseven
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, nondiscriminatory
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
3 See infra page vii on Kentucky agencies’ and entities’ participation in the Assessment process.
v
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 postconviction
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 Juror 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 IQtested
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
(2 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).
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).
[2] 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.
(21 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.
(21 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.
2 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.
(2 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.
[2] Kentucky prosecutors should be required to provide open file discovery at trial and
during post-conviction proceedings.
(21 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.
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Improvement of Defense Services (Chapter 6).
(2 Kentucky should adopt statewide standards governing the qualifications and training
required of defense counsel and ancillary services in capital trial, appeal, and postconviction
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.
(21 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.
(21 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.
(21 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.
[2] 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
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collection of the data, such as the Administrative Office of the Courts or the Criminal
Justice Council.
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.
[2] 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.
[2] 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.
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.
(| 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.
(21 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 noncapital
cases.
Improved Juror Instruction and Comprehension (Chapter 10). Given the documented evidence
of confusion of Kentucky jurors regarding their roles and responsibilities in capital cases
(1 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
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monitor the extent to which jurors understand revised instructions to permit further
revision as necessary;
(| 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).
[2 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
o 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;
o Application of the KRJA on appeal and during post-conviction proceedings;
o 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
o 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.
[2] 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 1Q 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
adaptive behavior, as expressed in conceptual, social, and practical adaptive skills,
resulting from mental retardation, dementia, or a traumatic brain injury. Kentucky also
should bar the death penalty for offenders who, at the time of their offense, had a severe
mental disorder or disability that significantly impaired their capacity to appreciate the
nature, consequences, or wrongfulness of their conduct, exercise rational judgment in
relation to conduct, or conform their conduct to the requirements of the law. Kentucky
also should preclude imposition of the death penalty in cases where a defendant is found
guilty but mentally ill.
[2] 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. Fiftytwo
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.
KACDL BOARD RESOLUTION
RESOLUTION IN SUPPORT OF
IMPLEMENTATION OF THE REFORMS RECOMMENDED BY THE AMERICAN BAR ASSOCIATION’S
ASSESSMENT TEAM AND A MORATORIUM ON EXECUTIONS UNTIL THE REFORMS ARE IMPLEMENTED
December , 2011
WHEREAS, the Kentucky Association of Criminal Defense Lawyers is the Commonwealth of Kentucky's
largest statewide association of criminal defense lawyers;
WHEREAS, the American Bar Association (ABA) Kentucky Assessment Team on the Death Penalty
consisting of two retired Kentucky Supreme Court Justices, the former director of the Legislative
Research Commission and Administrative Office of the Courts, an incumbent Commonwealth Attorney, a
former chair of the House Judiciary Committee, distinguished law professors and bar leaders has over
the last two years conducted the most extensive analysis of the manner in which the death penalty is
administered in Kentucky in the history of the Commonwealth;
WHEREAS, the American Bar Association Kentucky Assessment Team on the Death Penalty has found
Kentucky’s administration of the death penalty deficient in meeting the ABA Protocols on the
Administration of Capital Punishment;
WHEREAS, since 1976, 95 capital trials have resulted in at least one death sentence in Kentucky;
Whereas, there are currently 33 people on Kentucky’s death row;
Whereas, since 1976, there have been 49 Kentucky cases where judicial or executive review has
determined that death was not appropriate;
Whereas, deficiencies in the administration of the death penalty in Kentucky must be corrected to
insure the system that determines whether someone should be executed has the integrity necessary to
insure results that are fair and reliable and that have the confidence of the public.
THEREFORE, NOW BE IT RESOLVED
That the Kentucky Association of Criminal Defense Lawyers calls upon the Governor, the Attorney
General of Kentucky, and other Kentucky criminal justice policy makers to fully implement the American
Bar Association Kentucky Assessment Team on the Death Penalty’s recommendations and to institute a
moratorium on executions until the American Bar Association Kentucky Assessment Team on the Death
Penalty’s recommendations are fully implemented.
INFORMATION FROM DPA WEBSITE
The facts of Kentucky death sentences imposed and the number of Kentucky cases where judicial and
executive review have determined that death was not appropriate since December 22, 1976
Death as a possible sentence for aggravated murders was reinstituted in Kentucky December 22, 1976.
The following data is from December 22, 1976 through November 23, 2011.
There are currently 33 people on Kentucky’s death row.
Since 1976, 95 capital trials have resulted in at least one death sentence. Of those 95, the Kentucky
Supreme Court has reviewed 88 on direct appeal, 3 have yet to have the first review by the Kentucky
Supreme Court and 4 inmates died before their direct appeal was decided. To date, the Kentucky
Supreme Court has reversed the death sentences in 37 of those 88 cases on their initial appeal to the
Court.
Of the 51 cases reviewed by the Kentucky Supreme court but not reversed upon direct appeal, 38 were
reviewed on appeal of their state post-conviction actions and three were reversed on that review, for a
total to date of 40 reversals by the Kentucky Supreme Court. Eleven other cases still have future initial
state post-conviction reviews by the Kentucky Supreme Court available to them. One inmate died while
state post-conviction proceedings were pending, while one inmate waived post-conviction proceedings
and was executed without having had that level of review by the Kentucky Supreme Court. The Sixth
Circuit Court of Appeals has completed review of 10 Kentucky state capital convictions and has reversed
3 death sentences. Two are pending review in the Sixth Circuit Court of Appeals. One inmate waived
further proceedings and agreed to be executed without his case being reviewed by the Sixth Circuit
Court of Appeals.
Of the 50 Kentucky capital cases that have exhausted review by the Kentucky Supreme Court and the
Sixth Circuit Court of Appeals, 43 of them (86%) have been reversed.
Thirty-seven cases are pending further review by a state or federal court after affirmance on the initial
direct appeal to the Kentucky Supreme Court. Of those, only 6 have received one review by every level
of state and federal court.
Three persons have been executed, 2 of them waived some levels of appellate review.
Seven inmates died prior to completion of their judicial review, 3 of them after affirmance on direct
appeal by the Kentucky Supreme Court.
Two death sentences have been commuted by Kentucky Governors.
The number of Kentucky cases where judicial or executive review has determined that death was not
appropriate is 45 (47% of all death sentences). By contrast, executions have resulted in a 3% of all death
sentences.
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