Op-ed - Prosecutors: Ky. capital punishment unfair

Prosecutors: Ky. capital punishment unfair

Of the 78 people sentenced to death in Kentucky since 1976, 50 have had a death sentence overturned on appeal by Kentucky or federal courts because of significant legal errors. That is an unacceptable error rate of more than 60 percent.

Kentucky's justice system is at an historic moment. As a matter of basic fairness, we must pause to understand and reform the way capital punishment is administered in our state.

Each of us is a current or former prosecutor, some of whom have prosecuted capital cases in our commonwealth.

As prosecutors, we continue to believe that heinous criminal conduct must be punished severely in a way that advances public safety.

However, punishment must be a result of a fair process that produces valid results in which we have full confidence. It is time to suspend executions in Kentucky until the reforms recommended by a groundbreaking professional study are implemented.

This column is signed by John L. "Jack" Smith, former U.S. Attorney for the Western District of Kentucky; Alexander T. "Sandy" Taft, former U.S. Attorney for the Western District of Kentucky; Stephen B. Pence, former U.S. Attorney for the Western District of Kentucky and former Lt. Governor of the Commonwealth of Kentucky; Marc S. Murphy, former Jefferson County Commonwealth's Attorney; Michael J. "Mike" O'Connell, Jefferson County Attorney; Joe Gutmann, former Jefferson County Assistant Commonwealth's Attorney; Scott C. Cox, former Assistant U.S. Attorney; Larry D. Simon, former Jefferson County Assistant Commonwealth's Attorney; Will Collins, former Letcher County Commonwealth's Attorney; Jeffrey A. Darling, former Fayette County Assistant Commonwealth's Attorney; J. Stewart Schneider, former Boyd County Commonwealth's Attorney.

Call for Moratorium on Executions

KY Public Advocate and Louisville Metro Chief Public Defender Endorse the Call for a Moratorium on Executions and the Expeditious Implementation of the Reforms recommended by the ABA Assessment of the Kentucky Death Penalty

(Frankfort, Kentucky, December 7, 2011) Kentucky Public Advocate Ed Monahan and Louisville Metro Chief Public Defender Dan Goyette echoed today’s call by the American Bar association and the Kentucky Death Penalty Assessment Team for a suspension of executions in Kentucky until the recommendations in its December 7, 2011 report are fully implemented. Over the last two years, the Kentucky Death Penalty Assessment Team objectively reviewed the fairness, accuracy and reliability of Kentucky’s system for administering the death penalty. The review is thorough and scholarly. It was conducted by experienced, highly respected Kentucky criminal justice experts. It is a fact-based analysis supported by comprehensive, detailed evidence. It found major deficiencies that undermine the integrity of the system.


Today, Goyette and Monahan sent a request to the Governor asking that he not sign any execution warrants until the study’s reforms are put into effect. A similar request was submitted to the Attorney General asking that he not seek any execution warrants until the Kentucky Death Penalty Assessment Team recommendations are enacted.

See full press release here.

For more information and supporting documents, click here.

ABA Press Release - The Kentucky Death Penalty Assessment Report

Kentucky Legal Team Identifies Problems With Commonwealth’s Death Penalty System, Calls for Moratorium on Executions

WASHINGTON, D.C., Dec. 7, 2011 — A two-year review of Kentucky’s system of capital punishment concludes that the commonwealth doesn’t adequately ensure fairness or sufficiently guard against executing the innocent.  The report, released today by the American Bar Association, calls for a suspension of executions in Kentucky until the identified problems are addressed and corrected.

The Kentucky-based assessment team was comprised of former state Supreme Court judges, a state legislator, state bar leaders, law school professors and other lawyers from the commonwealth.  The team also consulted with a number of state government and judicial entities, law enforcement and criminal justice groups.

“The assessment team in Kentucky is an esteemed group of highly dedicated individuals who are committed to ensuring justice,” said ABA President Wm. T. (Bill) Robinson III, a native of the state.  “The report provides a thorough analysis of the death penalty system, and identifies many areas that need reform,” he said.

The report evaluates Kentucky’s laws, rules, procedures, standards and guidelines relating to administration of the death penalty, and uses 92 benchmarks set by the ABA to evaluate death penalty jurisprudence.  The report found that Kentucky is in full compliance with six protocols, partial compliance with 40 and not in compliance with 26.  The team did not have sufficient information to assess compliance with 20 of the benchmarks.

Assessment team co-chair Linda Ewald, professor emeritus at Louis D. Brandeis School of Law, says that the system in Kentucky does not adequately assure that capital defendants receive fair treatment.  “The problems with the death penalty system are substantial, and need to be addressed so that we also minimize the risk of executing the innocent,” she said.

The report identified the following issues as most in need of reform:

  • Inadequate protections to guard against wrongful convictions
  • Inconsistent and disproportionate capital charging and sentencing
  • Deficiencies and inadequate funding of the capital defender system
  • Inadequacies in post-conviction review to correct error
  • Capital juror confusion
  • Imposition of a death sentence on people with mental retardation and severe mental disability
  • Overall lack of data keeping on capital charging and sentencing practices

The report recommends several measures to bring the commonwealth into compliance with ABA protocols, including state-specific measures to address the issues raised in the 438-page report.  The team is recommending a suspension of executions in the commonwealth until problematic issues are rectified.

The report notes that Kentucky has made some progress in seeking to achieve fairness and accuracy in its administration of the death penalty.  Those measures include: the establishment of a statewide capital defender to represent indigent capital defendants and death row inmates; adoption of a post-conviction DNA testing statute to minimize the risk of executing the innocent; and adoption of a racial justice act that seeks to eliminate racial and ethnic bias in application of the death penalty in the commonwealth.

The full report and executive summary are available here.

In 2003, the ABA’s Death Penalty Moratorium Implementation Project, housed in the Section of Individual Rights and Responsibilities, began several comprehensive evaluations of the death penalty, like the one conducted in Kentucky.  The ABA has examined administration of the death penalty in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania and Tennessee.  The Project expects to release additional reports on Missouri, Texas and Virginia.  The reports have not been adopted by the ABA House of Delegates.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

 

Miguel Soto's death sentences vacated - AP article and order

Death sentence tossed in slaying of former in-laws AP

A judge threw out the death sentence on Tuesday of a Kentucky inmate convicted of killing his former in-laws more than a decade ago after concluding that a juror gave inaccurate statements during pretrial questioning.

Oldham County Circuit Judge Karen Conrad also found that the same juror in the case of 39-year-old Miguel "Mickey" Soto failed to follow his oath and consider mitigating evidence in the case. Conrad ordered a new sentencing hearing for Soto.

Read the Order

Kentucky unable to acquire lethal injection drug

Companies won't sell Kentucky lethal injection drug

by Brett Barrouquere AP

Amid a nationwide shortage of a lethal injection drug, documents obtained under a freedom of information request show two pharmaceutical companies declined to sell Kentucky a supply of the sedative.

The state e-mails obtained by The Associated Press show one firm, KRS Global Biotechnology of Boca Raton, Fla., explained it's refusal by saying there was no doctor involved in the purchase of sodium thiopental, even though Kentucky law bars physicians from being involved in administering executions.

No reason was given in the e-mail traffic between state officials and pharmacists for a canceled order from the other company, Spectrum Chemical and Laboratory Products of Gardenia, Calif. A Spectrum official told the AP the ordered was scrapped when it sold that part of its business last year.

New edition of Capital Defense Weekly is now available

Capital Defense Weekly

Leading off this edition is the Sixth Circuit's decision in  Archie Dixon v. Houk. In that decision the panel held that the police in Mr. Dixon's case improperly questioned first and warned later. As Ohio lawyer & blogger Russ Bensing notes, "[c]entral to the court’s decision was not only that the police had deliberately decided not to give warnings before the first custodial interrogation, but that the trial court, which had originally suppressed the confession, found the police weren’t telling the truth about their claim that [Mr. Dixon] had told them he’d talked to his lawyer and his lawyer had advised him to tell the police what happened.  (The state made an interlocutory appeal to the 6th District, which reversed the suppression and sent the case back for trial.)   Although the Ohio Supreme Court had found to the contrary in affirming the conviction and death sentence, the court has a point in noting that the trial judge was in the best position to make that determination, given its ability to hear and see the witnesses, and besides, no attorney in his right mind would have ever given that advice."

Louisville judge rejects death sentence - “He will wish this court had put him on death row.”

Life in prison worse than death sentence for Cecil New, judge says  - Louisville Courier Journal

Saying the death penalty was not a harsh enough punishment, a judge ordered for Cecil New II to serve the rest of his life in prison, surrounded by “bigger, meaner men who have nothing to lose.”

“He will fear for his life every day,” Judge Judith McDonald-Burkman told the family of 4-year-old Ivan Aguilar-Cano, who disappeared while playing outside his home near Churchill Downs in 2007 and was murdered by New.  “He will wish this court had put him on death row.”

Since a November hearing in which prosecutors asked that New be sentenced to death, McDonald-Burkman said she had investigated the differences between the life of a death-row inmate and one serving a life sentence.  On death row, she said, inmates are segregated from other prisoners and can have meals sent to their cell without ever having to be around anyone else, and typically an execution is not scheduled for at least 20 years. With the life sentence, New must congregate with other prisoners and “is never truly isolated.”

“Death is undoubtedly justified for you,” the judge told New. “There’s not one cell in your body, Cecil New, that can be rehabilitated, not one. But is a death sentence justice?”  The unusually frank language from McDonald-Burkman included scenarios on how New’s life would play out in the general population.  “Death is easy,” she said.  “Living outside of death row, in general population in fear of prison justice every day is a hell more suited to you, Mr. New, than living under the protective guise of death row.”....

On Oct. 14, the day before his trial, New surprised many by pleading guilty to charges of murder, kidnapping, tampering with physical evidence and unlawful transaction with a minor.  However, New did not negotiate a plea bargain and entered what is known as an open plea, which made him eligible to receive the death penalty and waiving his right to an appeal.

Assistant Commonwealth's Attorney Jon Heck had asked McDonald-Burkman on Nov. 16 to give New the death penalty, saying he deserved to die for his actions. But Jay Lambert, New's attorney, argued that New's life should be spared because of a horrific childhood that, at least in part, helped make him into who he is.

After the sentencing, Heck said he agreed with the judge’s reasoning that the life sentence was the greatest penalty.  “He will serve out his life a tormented man,” Heck said. “And I think he deserves that.”

 

ABC news reports on cost of the death penalty

Could Abolishing the Death Penalty Help States Save Money?," at ABC News.  There is video at the link.

California has a $25 billion deficit and almost 700 inmates on death row. According to a 2008 report issued by the California Commission for the Fair Administration of Justice, maintaining the criminal justice system costs $137 million per year, but the cost would drop to $11.5 million if it weren't for the death penalty. A 2010 study from the Northern California chapter of the American Civil Liberties Union found that California would be forced to spend $1 billion on the death penalty in the next five years if the state does not replace capital punishment with permanent imprisonment.

California is not the only state where cost has become an argument for abolishing the death penalty.

And:

Illinois Democratic State Rep. Karen Yarbrough, a sponsor of the bill, said she had been working on the issue of abolishing the death penalty for four years, and this is the closest the vote has ever come in the legislature for this measure. Yarbrough said she needs one more vote to call the bill to the Illinois House floor for a vote in January.

"Illinois has spent over $100 million in 10 years and hasn't put anyone to death," Yarbrough said. "It's time to put this barbaric practice to rest."

Yarbrough's bill would take the money saved from the death penalty and put it toward solving cold cases in the state, and training law enforcement officials.

"We have a $13 billion shortfall in the budget," she said. "We want to be pennywise and be able to put this money into something substantial."

And:

A typical cost per year for the death penalty ranges from $10 million to $20 million in states that have one or fewer executions per year, according to Richard Dieter, executive director of the nonpartisan Death Penalty Information Center. This number does not take into account states that have extreme numbers of executions or death row inmates, such as Texas or California.

"There have been quite a few studies in various states," Dieter said. "And the studies have all concluded that the death penalty is more of a burden on taxpayers than if the same defendant receives a life sentence."

A study by a Duke University economist in 2009 of North Carolina's death penalty costs found that the state could save $11 million a year if it abolished the death penalty.

In 2008, an Urban Institute study of Maryland found that a death penalty trial costs $1.9 million more than a nondeath penalty trial. The study also estimated that the state's taxpayers had paid at least $37.2 million for each of the five executions the state had carried out since 1978.

The Tennessee Comptroller of the Currency estimated in 2004 that death penalty trials cost an average of 48 percent more than trials in which prosecutors seek life imprisonment.

A 2003 legislative audit in Kansas concluded that capital cases are 70 percent more expensive than comparable nondeath penalty cases.

Every part of a death penalty case is longer and requires more legal time, since capital punishment is on the table, Dieter said.

Hearing Delayed in Texas Death Penalty Case

A Texas hearing on the constitutionality of the death penalty was delayed today when the state's highest criminal court issued an order staying proceedings for at least 15 days while defense attorneys and prosecutors submit briefs on their positions.

More on today's stay is here.

The hearing, in the case of John Edward Green, was the first in Texas history to examine the substantial risk of wrongful convictions in a Texas capital trial.