The Kentucky Racial J ustice Act: A Policy Analysis
Janet E. Powell
SW 630
12/12/2001
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The Kentucky Racial J ustice Act: A Policy Analysis
Janet E. Powell
Southern trees bear a strange fruit,
Blood on the leaves and blood at the root,
Black bodies swinging in the southern breeze,
Strange fruit hanging from the poplar trees...
-Excerpt of “ Strange Fruit” lyrics written in 1939 by Abel Meeropol and arranged
and sung by Billie Holiday as her “ personal protest” anti-lynching battle call.
_Al = - &" Design for Death” (1946) , Gertrude Abercrombie’s response to “ Strange Fruit”
Introduction
In 1998, Kentucky became the first state in the nation to enact a law addressing the racial
disparities in death penalty sentencing. This law became known as the Racial Justice Act:
KRS 532.300 Prohibition against death sentence being sought or given on the basis
of race - Procedures for dealing with claims.
A report released by the federal goverment’ s General Accounting Office found a
“pattem of evidence indicating racial disparities in the charging, sentencing and imposing of the
death penalty" (U.S. General Accounting Office, 1990). The Kentucky Racial Justice Act has
been created to address the social injustice of racial disparities in death penalty sentencing by
creating a pre-trial process in which a capital defendant may introduce valid statistical and other
relevant evidence to show that his or her race was influential in the prosecution's decision to
seek the death penalty (Commonwealth of Kentucky Revised Statutes, 1998).
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Racism in the Criminal Justice System
At the heart of the Racial Justice Act lies the pervasive social problem of racism and its
influence within the criminal justice system. Racism may be defined as “all of the leamed
behavior and learned emotions on the part of a group of people towards another group whose
physical characteristics are dissimilar to the former group; behavior and emotions that compel
one group to conceive of and to treat the other on the basis of its physical characteristics alone
(Hemton, 1965). Although this country claims to have made great strides toward eliminating
racism in the 35 years that have passed since the enactment of the Federal Civil Rights Act,
being non-white continues to place individuals at a disadvantage in many areas, as racism
continues to be alive and well (e.g., Canady, 1998; Allen, 2001; Sears & Jessor, 1996; Sydell &
Nelson, 2000).
While it is difficult to gauge the pervasiveness of racism in this country, its existence can
be seen through the harsh reality of race-based disparities that exist on both the macro and micro
scale. At the macro level, institutional racism deprives minority children of their right to a
quality education; it denies adults’ access to equal employment opportunities and equal pay; and
it deprives families of their right to safe and affordable housing and to health care and mental
health services. Across the lifespan, from childhood to old-age, institutional racism creates
barriers against equal access to vital resources; these socially constructed barriers serve as great
obstacles to personal achievement that may prevent many persons of minority status from
fulfilling their goals (Mayden & Nieves, 2000). Despite the fact that many discriminatory
practices are illegal and that there are ongoing efforts to combat the existence of racism,
institutional racism continues to pervade our country’s major structures: legal, social, economic,
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and political.
At the micro level, racism provides the basis for a poorness of fit with the environment
for many persons of color. The experience of prejudice is damaging to the self-esteem and sense
of personal worth. The assaults incurred through racial jokes and slurs; hate groups; social
exclusion in the classroom, the workplace, or the community; and damaging media portrayals all
take their toll upon the self-image, and may be internalized as self-fulfilling prophesies for
persons of minority affiliation (Aronson, 1999). Racism is a tragic violation upon the
individual’s right to live with dignity, free from discrimination and abuse. With every racist act,
our whole world suffers; social injustices affect us all, regardless of our racial or ethnic identity -
the web of life is broken.
Racist statutes within the legal code have been in existence in this country since its
earliest foundation. For many African A mericans who enter the criminal justice system,
discriminatory sentencing patterns are often an unavoidable reality (Miller, 1996). Although
African Americans account for only 12% of the U.S. population, they comprise about 50% of the
total adult prison population (U.S. Census Bureau, 2000; US Bureau of Justice, 2000). Blacks
convicted of killing whites are more likely than any other racial or ethnic group to receive a
death sentence (Miller, 1996), while whites have rarely been sentenced to death for killing
blacks, a trend seen in both Kentucky and across the nation! (W ayne, 1999; Amnesty
International, 2000).
Over the course of time, little has changed in racially disparate sentencing patterns, as
'Since 1976, only six whites in the U.S. have been executed for killing blacks (Amnesty Intemational,
2000).
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reflected in the following testimony of Supreme Court Justice Harry A. Blackmun (1994):
Twenty years have passed since this court declared that the death penalty must be
imposed fairly and with reasonable consistency or not at all, and despite the effort of the
states and courts to devise legal formulas and procedural rules to meet this challenge, the
death penalty remains fraught with arbitrariness, discrimination, and mistake.
Historical Background of Racism and the Death Penalty Laws in Kentucky
Following European settlement, the land that became known as America has endured a
long history of racism and racist policies that have affected First Nations peoples, persons of
African origin, and persons belonging to other racial and ethnic minority groups. The prevailing
values and ideologies of the first Americans formed the foundation for our country’s long legacy
of racist laws, beginning with the Constitution of the United States in 1776 which formally
legitimized the institution of slavery and assigned, for the purposes of taxes and of allocating
seats in the House of Representatives, each slave the value of three-fifths of a person (Bent,
2000).
When Kentucky became the fifteenth state in the Union in 1792 the state’s first
Constitution was an adaptation of Virginia’ s Constitution which was rooted in the strict “bloody
code” of England. Under harsh English law, nearly 200 offenses were punishable by death,
including pick-pocketing, shoplifting, and associating with gypsies (Reichert, 1959). Due to
strong public opposition to the broad nature of Kentucky’ s death penalty laws, the legislature
amended the statutes to read: “No crime whatsoever, committed by any free person against the
Commonwealth (except for murder in the first degree) shall be punished with death.” Further,
the Act went on to state that “Whereas the reformation of offenders, an object highly meriting
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the attention of laws, is not affected at all by capital punishments, which exterminate instead of
reforming, and should be the last melancholy resource against those whose existence is
becoming inconsistent with the safety of their fellow citizens” (Commonwealth of Kentucky,
1798). The wording of this Act gives an insight into the era’s prevailing attitudes about crime
and punishment, the objectives of the penal code, and of the individual’s capacity for reform. It
is also important to note that this A ct applied only to free persons (i.e., whites).
For African Americans, Kentucky’s death penalty laws covered a much wider range of
offenses than those of whites. In addition to murder, the Kentucky legislature stated in 1801 that
“any slave or slaves hereafter duly convicted of an attempt to commit a rape on the body of any
white woman such slave or slaves so convicted shall suffer death.” In 1819, Kentucky’s laws
were revised to make it a capital offense for slaves to wound a white person with intent to kill.
In addition, the 1833 legislature enacted a law that made punishable by death any attempt by a
slave (whether successful or not) to blow up the newly-constructed Louisville and Portland
Canal. Whites, on the other hand, were to receive two to four years in the penitentiary for this
same offense (Morehead & Brown, 1834).
Not only was racism explicitly expressed in the formulation of the early statutes of
Kentucky, but strong evidence of racial bias can be seen in the state’s execution records as well.
From the period of 1871 to 1962, 271 men were executed, with 147 (54%) of these being black
and 124 (46%) being white. Racial disparity is blatantly evident in this sentencing patter, as the
state’s A frican A merican population has consistently ranged from 7.0 - 7.5% since the 1900
census (Wright, 1990; U.S. Census, 2000).
Public opinion regarding the death penalty began to wane in the late 1950's, dramatically
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slowing the pace of executions in this state and fostering the development of H.B. 229 of 1958,
Kentucky’ s first bill to abolish the death penalty. Unfortunately, proponents of the death penalty
waged fierce public campaigns and sparked debates in newspaper editorials following the
introduction of the bill; their efforts were largely instrumental in H.B. 299's demise (Reichert,
1959).
Shortly after the defeat of H.B. 229, the newly elected Govemor Ned Breathitt, an activist
for racial justice and opponent of the death penalty, issued a general stay of all executions during
his term (1962-1966). During Breathitt’s tenure, the Kentucky Legislative Research
Commission published a 17-page study on capital punishment (1965). In their study, the
Commission found that the death penalty is of little value as a deterrent for capital crimes, and
that social, cultural, and economic factors are more influential in homicide rates than the
application of the death penalty.
Soon after Breathitt left his office as governor, the U.S. Supreme court halted all
executions, partly on the basis of the blatant racial discrepancies in capital sentencing patterns
(Furman v. Georgia, 1972; Amnesty International, 2000). After devising a “guided discretion”
statute which requires that judges must examine capital cases for evidence of error and bias,
executions resumed across the country in 1977 (Gregg v. Georgia, 1976).
Following the Gregg v. Georgia ruling, public awareness for the continued need for
reform in death penalty sentencing began to grow, strengthened by a report by the Kentucky
Legislative Research Commission (1985) which concluded that the cost of executing a convicted
felon was greater than the cost of upkeep for a sentence of life in prison without parole and that
the death penalty has not been found to be an effective deterrent against murder (the same
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conclusion the reached in their 1965 study).
On July 1, 1997, Harold McQueen was executed at the Kentucky State Penitentiary for
the 1980 murder of Madison County's Rebecca O'Heam. Being the first execution in the state
since 1962, McQueen’s case became the focus of statewide media attention. Stories of
McQueen’s life and of the poverty and abuse he endured as a child, coupled with his articulate,
soft-spoken voice and remorseful sentiments led to a surge of support for the abolitionist
movement in the state (Wedekind, 2000).
In 1998, following the extensive lobbying and publicity campaigns which surrounded the
McQueen execution, Kentucky enacted the Racial Justice A ct (Commonwealth of Kentucky
Revised Statutes, 1998), making it the first (and yet the only) state in the nation to pass
legislation intended to eliminate racial bias in capital sentencing.
The Kentucky Racial Justice Act: Policy Description
The Kentucky Racial Justice Act (hereafter referred to as the RJA or the Act) states that
“no person shall be subject to or given a sentence of death that was sought on the basis of race.”
Further, it creates a pre-trial process in capital cases that permits the defendant to “state with
particularity how the evidence supports a claim that racial considerations played a significant
part in the decision to seek a death sentence in his or her case.” In this procedure, the defendant
must present to the judge valid “statistical or other evidence” that death sentences are sought
significantly more frequently for persons of one race over another and also for persons charged
with the murder of a person of one race over another (Commonwealth of Kentucky Revised
Statutes, 1998).
Other valid evidence of racial bias may include words or deeds of the Commonwealth's
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Attorney or members of his or her staff that appear to be racially discriminatory, the
community’ s record on racial discrimination, and civil litigation alleging racial discrimination by
government agencies other than the prosecutor’ s office (Kentucky Department of Public
Advocacy, 2000).
The RJA states that “the defendant has the burden of proving by clear and convincing
evidence that race was the basis of the decision to seek the death penalty” (Commonwealth of
Kentucky Revised Statutes, 1998). The Kentucky Department of Public Advocacy, one of the
Act's strongest lobbyists, provides a training manual for attorneys who wish to invoke the RJA
on behalf of their clients (Will Hilyerd, personal communication, November 19, 2001). The RJA
provides that the Commonwealth may offer a rebuttal to the evidence presented by the defense
attorney(s). Following the full disclosure of evidence regarding racial bias in the defendant's
case, the judge has sole authority to decide whether race was the basis of the decision to seek the
death sentence, and if race is determined to be a factor in this decision, the death sentence must
not be sought (Commonwealth of Kentucky Revised Statutes, 1998).
Although this A ct does not explicitly state a funding mechanism for its application,
funding must be provided for the upkeep and operation of the court system, and for the retention
of defendants within the Kentucky Department of Corrections. Since a large proportion of
capital defendants are indigent and cannot afford legal representation, funding is also required
for legal support through the Kentucky Department of Public Advocacy (Will Hilyerd, personal
communication, November 19, 2001).
The authority to oversee the administration of the RJA lies with the Judicial Branch of
the Commonwealth of Kentucky, as specified in the Kentucky Revised Statutes, Title IV,
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Chapters 22-34 (Commonwealth of Kentucky Revised Statutes, 2001). The RJA exists as a
provision to create a pre-trial process for examining evidence of racial bias, with the decision to
seek or revoke the death penalty resting with the presiding judge (Commonwealth of Kentucky
Revised Statutes, 1998).
According to representatives of the Kentucky Legislative Research Commission, the
Kentucky Department of Public Advocacy, the Kentucky Coalition to Abolish the Death Penalty,
and Rep. Jim Wayne, there exists no formal process for evaluating the RJA, nor has any research
been done to date to monitor the effectiveness of the RJA (Norman Lawson, personal
communication, November 14, 2001; Will Hilyerd, personal communication, November 19,
2001; Pat Delahanty, personal communication, November 12, 2001; Jim Wayne, personal
communication, November 5, 2001). The RJA is intended to remain in the KRS indefinitely, or
at least until Kentucky enacts legislation to abolish the death penalty, so it is hoped that an
evaluation of the effectiveness of this Act will be undertaken in the near future.
Supportive research for the urgent necessity of the RJA in this state has been generated
by the findings of Keil and Vito (1995) in a study commissioned by the Kentucky Legislative
Research Commission (Wayne, 1999). In this study, the authors relied upon the U.S. General
Accounting Office methodology for evaluating racial bias in the murder trials of 572
Kentuckians from 1976-1992. This study concluded that A frican A merican capital defendants
were more likely to receive a death sentence than whites, especially in cases with white victims.
“Kentucky’s death row profile says much about how the criminal justice system devalues black
people’s lives” (Keil & Vito, 1995). Further evidence of racial bias in Kentucky's criminal
justice system came from a subsequent study by Keil and Vito (2000) in which the authors found
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that among non-capital crimes in Kentucky, A frican A mericans tend to receive longer sentences
than whites”. The findings of Keil and Vito in their studies are consistent with national research
on the existence of racism within the criminal justice system (e.g., Petersilia, 1985; Baldus,
Pulaski, & Woodworth, 1990; Thomberry, 1973; Erikson, 1973).
Analysis of the Goals of the Racial Justice Act
The underlying ideological assumption of this policy is that racism continues to exist as a
plague upon society and upon the criminal justice system. Based upon research findings (e.g.,
U.S. General Accounting Office, 1990; Keil & Vito, 1995; Baldus, Pulaski, & Woodworth,
1990), the RJA recognizes that death sentences have been sough significantly more frequently:
“(a) Upon persons of one race than upon persons of another race; and (b) As punishment for
capital offenses against persons of one race than as punishment for capital offenses against
persons of another race” (Commonwealth of Kentucky Revised Statutes, 1998).
The goal of this policy is to eliminate race as a factor in the decision to seek the death
penalty, thereby giving equal protection to all under the law. By invoking this Act, capital
defendants are given the opportunity to present evidence of racial bias in their case. The
wording of this policy gives considerable latitude to the defense position, increasing the
likelihood of the elimination of racial bias and of equal protection in the court.
Social workers have a professional obligation to “act to prevent and eliminate domination
of, exploitation of, and discrimination against any person, group, or class” (National Association
of Social Workers, 1996). In regards to the criminal justice system, the National Association of
“This study was intended to test the “Powell Hypothesis,” reflecting upon a statement made by Supreme
Court Justice Lewis Powell expressing the opinion that racial bias rampantly exists throughout the criminal justice
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Social Workers (NASW) advocates for the “fair and equitable treatment of ethnic minorities
involved in the criminal justice system,” and the “monitoring and promoting of criminal justice
policies, statutes, and laws that do not discriminate against individuals based on race, ethnicity,
class, political affiliation, or place of residence.” Further, citing that the death penalty violates
the constitutional guarantee to equal protection under the law and the prohibition against cruel
and unusual punishment, the NASW calls for the abolition this practice (Mayden & Nieves,
2000).
Although this A ct was not intended to abolish the use of the death penalty in Kentucky,
its goals to eliminate racial bias in capital sentencing and to ensure equal protection under the
law are consistent with the policy statements of the NASW. In the absence of an Act to abolish
the death penalty, social workers should make use of this policy as an incremental stepping stone
to ending the death penalty altogether. Tactical legal advisors note that a strategy which targets
specific problematic areas relating to the use of death penalty, such as the existence of racial bias
in sentencing patterns, is often more effective in weakening the support for death penalty laws
than an outright attack (e.g., Berman, 2000). In this state, advocacy groups such as the
Kentucky Coalition to Abolish the Death Penalty and the Catholic Conference of Kentucky have
taken this approach, and are pleased with the passage of the RJA, hoping that it may bring
Kentucky one step closer to abolition (Jim Wayne, personal communication, November 5, 2001).
Although the impacts and effectiveness of the RJA have not yet been evaluated, there
exists considerable support for a strong rationale for abandoning the application of the death
penalty. For capital defendants who successfully demonstrate racial bias in their case, this Act
system, not just among capital cases.
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provides a reprieve from the harsh imposition of the death sentence and its concomitant trauma.
The imposition of the death penalty has been shown to have many deleterious effects upon the
condemned and their families, the victims’ families, and society as a whole (e.g., Aronson, 1999;
King & Norgard, 2000).
As for the lives of the individuals who successfully receive protection from a
discriminatory death sentence, the RJA presents an opportunity for reformation and moral
growth. Those condemned to die are denied of their dignity and worth. Those who are innocent
and wrongly convicted are spared their lives, and may persist in seeking justice. Furthermore,
the legal sanctioning of the death penalty sends the message that violence is an acceptable means
of dealing with societal problems (Aronson, 1999; Haney, 1984).
In addition to the social and psychological effects of the death penalty, there are other
serious implications associated with its use which may be avoided when the death sentence is not
imposed. For example, an empirical study reviewing death penalty cases found that two-thirds
of these sentences had been subsequently overturned on appeals due mainly to inadequate
counsel on behalf of the defendant, incompetent investigative procedures, or on the grounds of
withholding of evidence by police or the prosecutors (Liebman, Fagan, & West, 2000). Further,
the use of improved DNA techniques has led to the declaration of innocence for 62 post-
conviction inmates (Schneck, Neufeld, & Dwyer, 2000).
Given the numerous effects of the imposition of the death penalty, any reprieve, such as
that granted by the RJA may be deemed beneficial for all parties involved.
Political Feasibility of the Racial Justice Act
Historically, support for the death penalty in America has waxed and waned according to
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the socio-political climate of the era. In times of increased social tension and upsurges in violent
crime, support for the death penalty has grown, while on the contrary, support has tended to
decline in times of relative peace and stability (Kim, 2001). Regardless of the trends, the debate
over the application of death penalty has been one of our nation’s most challenging issues, as
evidenced in the high degree of polarization between opponents and supporters of capital
punishment (Wedekind, 2000).
The debate over the H.B. 171, the Racial Justice Bill, was no less intense. Legislation to
enact a racial justice law for capital sentences was overwhelmingly defeated twice in Kentucky,
first in 1994 and then again 1996, before passing and being signed into law in 1998. During the
period of 1994 to 1998, support for the death penalty varied widely. According to Gallup
(2000), public support for the death penalty nationwide was at 62% in 1978, rising to an all-time
high of 80% in 1994. Following this brief peak, support fell once again to 66% in 1998 (Gallup,
2000).
A number of factors may have played a role in the state’ s political climate, resulting ina
hesitance to pass the RJA and presenting a hindrance to the passage of an abolition law.
According to Gil (1981), choices in policy are “heavily influenced by dominant beliefs, values,
ideologies, customs, and traditions of the cultural and political elites.” Values an ideologies have
no doubt played a large role in the capital punishment laws of Kentucky, a chiefly Southern,
conservative state.
In their analysis of the trends in capital sentence cases and the role of cultural attitudes in
Kentucky, Keil and Vito (1992) stated that “the South consistently has had a greater number of
blacks than whites executed during the 20" century... and findings regarding racial bias in capital
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punishment consistently point to the South.” Fear amongst the populace has also been shown to
have an effect upon attitudes toward the death penalty (Sheley, 1985). Among Kentucky
residents, University of Kentucky sociologist Mark Peffley found that one-fourth of his 501
study participants reportedly believe that most blacks are violent (In press), thus fear in some
cases may compound the effects of Souther attitudes on support for the death penalty.
In additional to cultural attitudes, religion also plays a significant role in the development
of values and ideologies. According to the American Religion Data Archive (2001), Kentucky is
a predominantly conservative Protestant state with 1,330,517 adherents to fundamentalist
Protestant churches (by comparison, there are 419,491 “moderate” Protestants, 76,706 “liberal”
Protestants, and 365,270 Catholics in Kentucky). Regarding religion and the death penalty,
Y oung (1992) found that fundamentalism, particularly Southem Protestant fundamentalism is
strongly correlated with high levels of support for capital punishment’.
Backed by the prevailing socio-cultural attitudes in the state, Kentucky’ s political climate
has not been supportive of liberal ideologies toward the imposition of the death penalty.
In the course of events surrounding the passage of the RJA, several large, prominent
groups emerged in support of the RJA: The Kentucky Department of Public Advocacy, the
Kentucky Coalition to Abolish the Death Penalty, the Catholic Coalition of Kentucky, the
Kentucky Council of Churches, the American Civil Liberties Union, and Amnesty International
(Wayne, 1999). Rather than embracing a pro/con death penalty stance, these groups lobbied
around the central issue of the protection of civil rights and equal protection under the law (Jim
53Itis interesting to note that research by Wiehe (1990) revealed a parallel conclusion in that parents from
fundamentalist Protestant faiths are more likely to support the use of corporal punishment as a valid means of child
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Wayne, personal communication, November 5, 2001).
When the Racial Justice Bill was first introduced in the legislature in 1994, it failed to
leave the Senate. In 1996, it failed to leave the House. In both cases, one of the main issues
surrounding the rejection of this bill was that it contained a clause allowing it to be retroactive,
making it costly for the state in terms of both legal and financial resources (Will Hilyerd,
personal communication, November 19, 2001).
In 1998, the Racial Justice Bill was reintroduced into the Senate by the state’s only
African American legislator, Sen. Gerald Neal (D-Jefferson). Following its introduction, the bill
was challenged by the many state prosecutors, the state’s A ttomey General, and victims’ rights
advocates.
Despite the strong opposition, the bill managed to pass in the Senate with a 22-12 vote
(Wayne, 1999). In the House, the bill was not well-received, and its defeat seemed imminent.
Acting quickly, the American Civil Liberties Union and the Kentucky Coalition to Abolish the
Death Penalty mobilized a media press conference on the Capitol steps demanding that the bill
be voted out of committee. In a similar show of protest, hundreds of supporters frantically called
their House representatives. Their supportive efforts paid off; within 72 hours, the bill was voted
out of the committee and passed with a vote of 70-23. On May 1, 1998, one day after the
legislature adjourned, Goveror Paul Patton signed the bill into law, making it KRS 532:300
(Wayne, 1999).
Economic Feasability of the Racial Justice Act
discipline.
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When the Racial Justice Bill was introduced during the 1994 and 1996 legislative
sessions, it was defeated largely on the grounds of it economic feasibility. Because of the
retroactive nature of the bill, legislators envisioned an endless stream of litigation from persons
previously receiving the death penalty, likely amounting to a hefty financial burden for the state.
With the passage of the bill in 1998, it was specifically structured (albeit reluctantly) to designate
only those cases tried after July 15, 1998 as eligible for invoking the Act in their defense (Jim
Wayne, personal communication, November 5, 2001).
Although the RJA does not state its economic impact or funding requirements, it is not
without costs. In a fiscal impact statement prepared by the Kentucky Legislative Research
Commission (1998), it was noted that the level of impact for this Act lies with Kentucky’s
General Fund, specifically, with the Department of Corrections, the Office of the Attorney
General, and the Kentucky Department of Public Advocacy, having an “indeterminable” fiscal
impact.
In their impact statement, the Commission also stated that any additional costs to the
Department of Corrections as a result of the RJA would be minor, due to the fact that the average
appeals process for death penalty cases is 20 years and assuming that those avoiding death
sentences on account of the RJA would most likely receive life without parole for 25 years, the
next most serious sentence. For FY 2019, the Commission estimated a total annual cost to the
Department of Corrections of $27,070 per person which would continue each year until the end
of time served at an estimated inflation factor of 2.9%.
In regards to the impact on the Kentucky Department of Public Advocacy, the
Commission noted that the average public defender receives a wage of $25.00 per hour. In
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addition to the costs of a typical capital case, minimal additional funds would be needed in RJA
cases (Kentucky Legislative Research Commission, 1998). For the fiscal year 2000, the
Kentucky Department of Public Advocacy (DPA) represented 93 capital offense defenders,
comprising 0.10% of the DPA’s workload (Kentucky Department of Public Advocacy, 2001a).
The DPA is a state agency funded by state resources. For FY 2000, the total expenditure for the
DPA’s capital trial and appellate divisions was $1,617,531, representing 7.6% of the
Department's total caseload expenditures and an annual per capita taxpayer cost of $0.40
(Kentucky Department of Public Advocacy, 2001b).
The Kentucky Legislative Research Commission (1998) stated in their fiscal impact
statement that the costs incurred by the Office of the Attorney General is indeterminable and
case-specific. Although additional time must be allocated for the pre-trial procedure as outlined
by the RJA and for the preparation of a refutation of the defendant's claim, it is difficult to
determine the time required and the costs to the state. It can only be estimated that the time
spent by the prosecution would be roughly equivalent to the time investments made by the public
defender, which was deemed as “minimal” by the Commission.
Administrative Feasability of the Racial Justice Act
The RJA creates a process through which defendants may present evidence to
substantiate a claim that race was the basis for the decision to seek the death penalty in their
case. The authority to raise an RJA claim is shared between the client and the client’s attorney
who must jointly initiate the claim, and the prosecutor who may subsequently refute the
defendant's claim. Ultimately, authority rests with the presiding judge, who must consider the
evidence and issue a ruling as to whether the death penalty will be sought or overturned
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(Commonwealth of Kentucky Revised Statues, 2001).
Because this Act relies upon existing personnel and resources, it may be assumed that
these resources are sufficient for fulfilling the administrative requirements of the Act. The Act
makes no provisions for hiring additional personnel, and it may further be assumed through the
analysis of the Act’s economic impact that its implementation is feasible from an administrative
standpoint.
The Act does not specify a means for its evaluation, and no office or agency has been
designated to oversee its implementation. While the Kentucky Legislative Research
Commission has not yet gathered data on the effectiveness of the Act, this agency will likely
undertake such a study in the future (Norman Lawson, personal communication, November 14,
2001). While agencies such as the Kentucky Coalition to Abolish the Death Penalty and the
Kentucky Department of Public Advocacy continue to seek ways to address the issue of the
death penalty and serve as “watchdogs” over existing policies such as the RJA, no official
research has been done to date by these groups ( Pat Delahanty, personal communication,
November 12, 2001).
If the goals of the RJA are upheld, this Act will effectively eliminate the possibility of
racial bias in the sentencing process of capital offense cases. However, we live in an imperfect
world which would render the possibility as highly unlikely that racial bias will be entirely
filtered out.
As devil’s advocate, this Act may also be instrumental in sparing the death sentence from
persons who deserve to die (i.e., race was not a factor in the basis to seek the death penalty in
their case, but it incorrectly perceived by the judge to be so). According to an official website
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operated by Fayette County Commonwealth's Attomey Ray Larson, George Moore, President of
the Kentucky Commonwealth's A ttomeys Association states that he does not believe that race
plays a significant role in capital sentencing (2000). For persons of like mind with President
Moore, perhaps any consequence of the RJA is an unintentional (undesirable) consequence.
Models of Policy Analysis and the Racial Justice Act
Due to the high degree of polarization surrounding the issue of capital punishment and
the Racial Justice Act, the group model of policymaking provides a thorough means for
understanding this policy. According to the group model, different groups struggle to influence
public policy to their desired ends, with the outcome of the policy process often depending upon
the amount of power and influence held by the different groups, as determined by their numbers,
wealth, access to decision making, and intemal cohesion (Dye, 1972).
In the case of the RJA, each side of the issue had the support of several prominent
groups. Reflecting the influence of prevailing cultural attitudes and perhaps an example of
modem racism’ in action, opposing groups rejected the notion that Kentucky’ s criminal justice
system is fraught with racial bias. Proponents of the RJA, on the other hand, clung to scientific
research and historical evidence to support their position.
In the legislature, the focus of contention between opponents and proponents of the Act
became centered around the Act’s retroactive nature. The RJA was introduced into the
legislature twice before it passed in 1998, and both times it failed on account of the retroactive
clause. According to the group model, conflict between groups is managed by balancing
‘Modem racism: a subtle and complex form of racism in which racist individuals are not explicitly racist,
but tend to hold negative views of racial minorities and blame minorities for their social disadvantages (Mooney,
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interests to produce a policy that represents a compromise between the groups (Dye, 1972). In
this case, the RJA was passed in both the House and the Senate in 1998 after a compromise
policy was formulated that eliminated the retroactive clause. Ona deeper level, the real
compromise may have been between the values and ideologies of Southern, fundamentalist
Kentucky and the American belief in “liberty and justice for all.”
Seldom can any one model singlehandedly describe the complex interactions and
transactions that tend to accompany the policy process, as public policy is often the result of a
combination of various models (Dye, 1972). Another model that may be used to facilitate an
understanding of the RJA is the elite model. This model is rooted in conflict theory (e.g.,
Dahrendorf, 1959) and emphasizes the role of the powerful elite in the policymaking process.
Because of the greater influence of groups in power, it is often the powerful who define social
problems to the detriment of less privileged groups.
In the case of the RJA, the elite model is useful for recognizing and understanding the
historical and socio-cultural values and ideologies that have been instrumental in creating
barriers against the formulation and enactment of such a policy. Nearly four years after its
passage, Kentucky continues to be the only state in the nation that has passed legislation to
address the racial disparities in capital sentencing. The individuals and groups involved in
promoting the RJA’s passage are to be commended for their vigilance, tireless activism, and
persistence in the face of tremendous odds.
Conclusion
Kentucky’s Racial Justice Act represents a great stride toward the elimination of bias
Knox, & Schacht, 2000).
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within the criminal justice system. In the name of social justice, it is hoped that the enactment of
the RJA will eliminate racial bias from the capital sentencing procedure. In the name of human
rights, it is hoped that the RJA will bring Kentucky and the nation one step closer to abolishing
the death penalty.
"The criminal court system calls itself a justice system, but it measures privilege, wealth, power, social status, and -
last but not least - race to determine who goes to death row. Further, until we recognize the evil irrationality of
capital punishment, will we only add, brick by brick, execution by execution, to the dark temple of Fear. How many
more lives will he sacrificed on its altar?”
- Mumia Abu-Jamal, activist, acclaimed author, and 18-year veteran of Pennsylvania's death row
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