COMMONWEALTH OF KENTUCKY
OFFICE OF THE ATTORNEY GENERAL
Jack CONway CAPITOL BUILDING, SUITE 118
ATTORNEY GENERAL 700 CAPITAL AVENUE
FRANKFORT, KENTUCKY 40601
March 5, 2009 (502) 696-5300
FAX: (502) 564-2894
Mr. Norman Lawson
Committee Staff Administrator
Judiciary Committee
Legislative Research Commission
State Capitol, Room 408
Frankfort, KY 40601
Dear Mr. Lawson:
This letter responds to your request for information related to the death penalty.
Obviously, this issue produces strong feelings among those who support or oppose capital
punishment. This letter will attempt to give factual guidance related to the issues you have
requested us to address. However, before answers can be given to many of these questions,
one must first more precisely define the parameters of the issue.
Specifically, your first request is as follows: “I would like to understand what the total
cost has been for the death penalty since its reenactment on December 22, 1976, and what it
would cost instead to incarcerate someone for the rest of their life.”
Before one can attempt to answer this question, one would first have to determine
what factors should be included in the definition of “total cost.” This alone would probably
necessitate a separate comprehensive study by the LRC, perhaps requiring expert assistance to
determine the methodology, merely because of the breadth of the factors that might have to
be considered. The per diem costs of incarceration for death penalty inmates can certainly be
obtained from the Kentucky Department of Corrections. However, the “total cost” of any given
type of crime/sentencing is difficult to determine both on a societal level and on an individual
level. For victims of crime and their surviving family members, the costs can include both a
monetary cost and a physical, mental and emotional cost. The monetary costs of crime can
include health care costs such as hospitalization and other medical treatment and loss of
income. Many crime victims and the families of deceased crime victims often seek mental and
emotional therapy for the trauma they have suffered. For victims who must testify at trials and
post-conviction proceedings, they are forced to relive the trauma they have suffered over and
over again in different judicial fora.
AN Equal OPPORTUNITY EMPLOYER M/F/D
Moreover, the question of “total cost” necessarily may implicate an analysis of the
criminal justice system’s current method of handling capital cases. For example, commentators
have debated whether a properly funded criminal justice system functions more efficiently in
all types of criminal cases, reducing the lags in moving criminal cases through the system. One
would also need to factor whether stricter rules relating to repeated or frivolous filings would
change the cost factors associated with capital litigation. Other hotly debated issues would
need to be addressed in relation to “total cost.” For example, a consensus would need to be
reached regarding the differing views on the deterrent effect of the death penalty in terms of
the societal “cost savings” of preventing the further loss of life.
Also, when balancing the cost of the death penalty against the cost of incarceration, one
would need to determine the factor of escape in assessing how and in what manner this factor
would be, including in the calculation of “total cost.” Unfortunately, escapes from maximum
security facilities have occurred in Kentucky. For example, on June 16, 1988, eight inmates
escaped from Eddyville. Of the eight inmates who escaped, three were death row inmates.
Some of these escapees drove to Stewart County Tennessee and brutally murdered an elderly
couple in their home. See Commonwealth v. Vester, 956 S.W.2d 204 (Ky. 1997). For the family
members of the elderly couple in Tennessee, the costs associated with this escape are
incalculable.
There are a multitude of other factors that could be debated and discussed with respect
to the “total cost” analysis. As previously noted, this issue may need a full-fledged study in
itself before any sort of definitive calculation could be made.
In addition to the “total cost” issue, you have provided a list of specific questions, and
we will attempt to address these below:
How many cases have been eligible to have been prosecuted as death penalty cases? The
answer to this question would take a considerable amount of time to compile. Currently, KRS
532.025(2) lists the aggravating factors which, if present, may subject a defendant to a death
sentence. However, this statute has been modified over the years, i.e., changing the factors
which make a case “death-eligible.” For example, KRS 527.200 — Use of a weapon of mass
destruction in the first degree -- was enacted in 2001. If a defendant is found guilty of this
crime and kills another person aside from himself, this is a capital offense for which a death
sentence may issue. However, up until 2001, this statute was not in existence and thus was not
a death eligible crime. That is merely one example of how the factors have changed over the
years.
In order to properly attempt to answer this question, one first would have to determine which
version of KRS 532.025 was present in each year beginning in 1976 until the present day. Then,
for each of those years, one would have to determine which types of crimes during those
particular years were death-eligible. It is possible that the Administrative Office of the Courts
may be able to formulate a statistical query of its database to provide some information on this
issue. If the AOC cannot provide this information or cannot provide it for the applicable years,
it is unclear how this information could be gathered in a timely fashion.
How many cases were prosecuted as death penalty cases? The answer to this question may
lie with the Administrative Office of the Courts. When a prosecutor intends to seek the death
penalty in a case, a notice of this intent is filed with the Court, listing the applicable aggravating
factors in KRS 532.025. If the Administrative Office of the Courts could query its database for
cases in which this type of notice was filed, one could obtain a fairly accurate estimate of the
number of cases prosecuted as death penalty cases. However, barring this method, it would be
difficult to make this determination without attempting to gather some information from
individual Commonwealth’s Attorneys’ files. Obviously, this would be a time consuming
process, given the fact that this involves over a 30-year span of time and would involve manual
research of particular files.
How many cases had the death penalty returned by the judge or jury? This information may
be available from the Kentucky Supreme Court or the Administrative Office of the Courts.
Pursuant to KRS 532.075, the Kentucky Supreme Court is required to review on the record any
sentence of death that is final in the circuit court. This is done in the direct appeal of any death
verdict. KRS 532.075(6) provides that the Kentucky Supreme Court must “accumulate the
records of all felony offenses in which the death penalty was imposed after January 1, 1970, or
such earlier date as the court may deem appropriate.” Thus, this information should be
available from the Kentucky Supreme Court or the Administrative Office of the Courts.
Additionally, we can provide current information relating to Kentucky’s death row population.
According to the Kentucky Department of Corrections website, there are currently 36 inmates
on death row in Kentucky ranging in age from 28 years old to 66 years old. The dates of their
sentences are also listed. For example, Karu Gene White, who murdered three individuals from
Breathitt County, is the longest serving death row prisoner, having been sentenced to death on
March 29, 1980. A copy of this printout from the Department of Corrections is enclosed for
your information.
How many cases have had the sentence of death reversed by a Kentucky or federal court?
Some clarification may be necessary with respect to this request before online legal resources
could be accessed to gather this information. We would need clarification regarding whether
you seek information relating to the guilt phase or penalty phase of these cases. Additionally,
we may be constrained in some ways by ongoing litigation that involves various aspects of the
penalty phases of capital cases. For example, the Kentucky Supreme Court has occasionally
remanded capital cases for new penalty phase adjudications in the trial court which are then
affirmed in the next appellate process. We would require clarification regarding whether this
type of activity would be considered a “reversal.” Questions like these are important factors in
attempting to answer these questions, particularly since these characterizations necessarily
implicate our statutory duties in ongoing capital cases.
How much has it cost prosecutors and the Attorney General at the trial, appellate and post-
conviction levels to prosecute death penalty cases? The state’s 57 Commonwealth’s Attorneys
handle the prosecution of capital cases in Kentucky and any post-conviction actions in these
cases that may be filed in the circuit courts. The Commonwealth’s Attorneys and Assistant
Commonwealth’s Attorneys receive general fund dollars for the prosecution of all felony cases
in their respective judicial circuits. Their pay does not increase or decrease depending upon
whether they prosecute a death penalty case or a Class D felony. With respect to appellate
matters, pursuant to KRS 15.020, the Office of the Attorney General represents the
Commonwealth in all felony appeals in the Court of Appeals and Kentucky Supreme Court. The
Office of Criminal Appeals within the Attorney General’s Office handles all felony appeals within
the existing budget of the Office.
What other costs have there been? See discussion with respect to the definition of “total cost”
above.
We hope this information is helpful. Obviously, this is a subject in which there is no
easily identifiable quantification that is readily agreed upon by all. Please do not hesitate to
contact us with further guidelines or information.
Sincerel
ofney General
/srb
Enclosures
