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PUBLIC SUPPORT
A recent poll conducted by the ABA shows that a
majority of Kentuckians support a suspension of
executions to allow time for problems within the
system to be remedied.
The Nov. 30-Dec. 4, 2011 survey of 405 most
likely voters statewide found a solid majority of
Kentucky voters (62 percent) support a temporary
halt to executions. The support was consistent
across the state: a majority of men, women,
urban, suburban, 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.
Temporary Halt of Executions
Total 32 62
Oppose ™ Support
Men (48%) 37 a 5°
Women (52%) 27 64
Democrats (44%) 21 73
Independents (17%) 38 54
Republicans (35%) 42 52
Urban (29%) 24 i a 71
Suburban (18%) 29 a 67
Exurban (17%) 42 as 55
Rural (36%) 36 a 55
For More Information
The full report of the Kentucky Death Penalty
Assessment Team, poll results, and other information
is available at: www.ambar.org/kentucky.
RECOMMENDATIONS
Strengthen Preservation and Testing of Evidence:
Kentucky must guarantee proper preservation of all
biological evidence in capital cases for as long as the
defendant remains incarcerated. Courts should order DNA
testing if the results could create a reasonable probability
that a defendant should not have been sentenced to death.
Adopt Best Practices for Law Enforcement: Law
enforcement training and practices should comport with well-
known best practices to promote apprehension of the guilty
and prevent conviction of the innocent.
Standards for Defense Attorneys: Kentucky should adopt
statewide standards governing the qualifications and training
required of defense attorneys in capital cases.
Improved Pay for Defense Counsel: 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 death penalty cases.
Uniform Standards for Use of Death Penalty:
Guidelines governing the exercise of prosecutorial
discretion in death penalty cases should be adopted for
statewide application.
Improve Data Collection: Kentucky should establish a
statewide clearinghouse to collect data on all death-eligible
cases.
Enhance Error Correction by the Courts: 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.
Revise Jury Instructions: To improve death penalty juror
comprehension, the state must revise the jury
instructions typically given in capital cases.
Amend Racial Justice Act: 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.
Protections for Mentally Ill and Disabled: Kentucky
should adopt legislation exempting the severely mentally ill
from the death penalty and modernizing the definition of
mental retardation.
Disctaimer: Inclusion of the findings of the ABA
Kentucky Death Penalty essment Report in
this pamphlet does not imply th
of the KCADP by the ABA,
essment Team, or its individuals members.
Please see www.ambar.org/kentucky for mor
information.
KENTUCKY ASSESSMENT
REPORT ON THE
DEATH PENALTY
December 2011
“We came in to this with no real idea of what
we would find. 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.”
- Linda Ewald, University of Louisville
Louis D. Brandeis School of Law,
Kentucky Assessment Team Co-Chair
OVERVIEW
A two-year review by a team of Kentucky legal
experts found that “serious problems persist”
in state death penalty procedures. The team
unanimously recommended that Kentucky
temporarily suspend executions until serious
issues related to fairness and accuracy in the
imposition of death sentences are addressed.
The review was conducted by the Kentucky
Assessment Team on the Death Penalty,
established under a project of the American Bar
Association. The Kentucky review began in 2009
and was conducted by:
¢ Linda Ewald, Co-Chair, University of
Louisville Louis D. Brandeis School of Law,
Louisville, KY;
¢ Michael J. Z. Mannheimer, Co-Chair,
Northern Kentucky University Salmon P.
Chase College of Law, Highland Heights, KY;
¢ Hon. Michael Bowling, Steptoe & Johnson
PLLC, Middlesboro, KY;
¢ Allison Connelly, University of Kentucky
College of Law, Lexington, KY;
¢ Hon. Martin E. Johnstone, Kentucky
Supreme Court (Retired), Prospect, KY;
e Hon. James Keller, Kentucky Supreme
Court (Retired), Lexington, KY;
¢ Frank Hampton Moore, Jr., Cole & Moore,
P.S.C., Bowling Green, KY; and
¢ Marcia Milby Ridings, Hamm, Milby &
Ridings, London, KY.
The Report used as a framework ABA protocols
covering key aspects of death penalty
administration. Assessment team members were
not required to support or oppose the death
penalty, and Kentucky's members have varying
perspectives on capital punishment.
KEY FINDINGS
The review by the Kentucky Assessment Team produced a number of troubling findings:
High Error Rate in Death Penalty Cases: Of
the 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.
Inadequate Retention of Evidence: 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.
Law Enforcement Inadequately Protects
Against Wrongful Conviction: 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.
Inconsistent Application of Death
Penalty: 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.
Juror Confusion: A survey 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.
Low Pay for Public Defenders: 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.
Unqualified Defense Attorneys: 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.
Inadequate Protections for the Mentally
Disabled: Kentucky does not have adequate
protections to ensure that death sentences are
not imposed or carried out on a defendant with
mental retardation or mental illness.
Lack of Data: 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.
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