The Death Penalty In Kentucky: Stayed And Uncertain

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Syringe, Judges Gavel And Money On Brown Wooden Table

The mention of “death row” conjures images of inmates pacing in their cells, awaiting executions. But in Kentucky, defendants have little reason to fear the needle.

Most, if not all, of the state’s death row residents will never see the execution chamber.

Lengthy appeals and a shortage of lethal injection drugs mean Kentucky’s death row inmates remain in prison indefinitely. And even if inmates want to be executed, the state’s court system would not allow it.

While this delicate death deliberation plays out, millions of public dollars are spent each year to sentence defendants to death, though legislators, criminal justice experts and others know such a sentence is mostly futile.

This process plays out as the United States continues to grapple with capital punishment amid a sea change of sorts. Executions across the country reached a 24-year low in 2015. Legislators in several states, including Kentucky, are considering bills to repeal the practice. Polls show public support of the death penalty is waning, wrongful convictions are in the national conversation and lethal injection drugs are under heavy scrutiny.

Meanwhile, executions are on hold in Kentucky due to a lawsuit over the legality of lethal injection. The Kentucky Department of Corrections said in 2014 it would work to change regulations regarding lethal injection, but the release date has been pushed back and now stands at “sometime in 2016.”

Amid the many delays, lawsuits and shifting social and political landscape, just what does the future hold for capital punishment in Kentucky?

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Kentucky has executed three people since the U.S. Supreme Court ruled the death penalty constitutional in 1976. The ruling reinstated the death penalty after a 1972 decision put it on hold for four years. Two of the state’s three executions since 1976 came at the request of the inmate.

Kentucky’s Department of Public Advocacy says prosecutors, public defenders and the courts each year spend a total of $10 million on capital cases. Public defenders throughout the state are working on at least 47 pending capital cases, and private attorneys are on an additional but unknown number of cases.

Thirty-two people are currently under a sentence of death in Kentucky. The last death sentence was imposed in 2008.

Karu White, sentenced in 1980, has been on death row the longest. Like many inmates, White is embroiled in a lengthy appeals process. Just one of his appeals — deciding who will examine White to determine whether or not he is mentally disabled — has been going on for more than 10 years.

Brian Moore, a death row inmate of 32 years, has spent a decade litigating DNA testing.

Even if all death row inmate appeals ended tomorrow, no one would receive a lethal injection.

Franklin Circuit Court Judge Phillip Shepherd in 2010 put all executions on hold. His injunction is part of a pending court case filed by inmates questioning the legality of the state’s lethal injection protocol.

One roadblock: lethal injection drugs are not easy to find. Some states have reported that U.S. pharmacies aren’t willing to sell them, according to Robert Dunham, the executive director of the Death Penalty Information Center.

Pharmacy groups, including the American Pharmacists Association, have discouraged such drug sales because it contradicts their health care mission. Some also say it violates a medical provider’s Hippocratic oath, which outlines ethical conduct.

To get around this, Ohio public officials used the Department of Mental Health to buy the drugs, concealing the intended use. Other states have turned to compounding pharmacies, which do not have to register with the Food and Drug Administration.

It is unclear how the Kentucky Department of Corrections is addressing issues related to lethal injection. The agency declined to comment on its progress.

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Despite bleak prospects for an actual execution, some prosecutors use their discretion to seek death sentences. Some see it as leverage in negotiating a plea deal.

Anti-death penalty advocates say this creates an unfair and arbitrary system. A defendant in one county gets a life sentence for committing a heinous murder, while a defendant with a similar case a county over gets a death sentence.

Rob Sanders, Commonwealth’s Attorney for the 16th Judicial Circuit

Rob Sanders, Commonwealth’s Attorney for the 16th Judicial Circuit

Rob Sanders, president of the Commonwealth Attorneys Association, said discretion allows voters to have some control over their own criminal justice system. If residents prefer a prosecutor who does not use the death penalty, they can elect one, and vice versa.

Sanders said ridding the state of the death penalty wouldn’t save any money.

“Eliminating the death penalty would only eliminate the just punishment, not the case itself,” Sanders said in an email statement.

Other death penalty proponents say capital punishment can actually save the state money because defendants are more likely to make a plea deal if a death sentence looms.

Durham with the Death Penalty Information Center disputed these assertions. All the extra steps of a death penalty case — a more extensive jury selection process, deep biographical research, and other steps including appeals — make those cases more expensive, he said.

Empty cell

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Empty cell

With all of the barriers blocking the way to the execution chamber, some think the death penalty may be effectively over in Kentucky anyway.

Former Kentucky Supreme Court Chief Justice Joseph Lambert is one of those people. He said one of the biggest obstacles to execution is that death sentences are regularly reversed.

More than 60 percent of people sentenced to death get a reversal, according to the Department of Public Advocacy, which represents the state’s indigent defendants. Many of those reversals happen due to police or prosecutorial misconduct, according to Durham with the Death Penalty Information Center.

“These are complicated matters that often have severe defects in them,” said Public Advocate Ed Monahan. “Would any of us put our best friend on an airline that 60 percent of its planes returned to the airport?”

Anti-death penalty advocates like Patrick Delahanty, a Catholic priest and chair of the Kentucky Coalition to Abolish the Death Penalty, think the end of capital punishment could come soon.

“We’re on the cusp,” Delahanty said.

During the last legislative session, a bill to abolish the death penalty died in committee by one vote.

And a recently released poll from the University of Kentucky Survey Research Center asserts that most Kentuckians support a moratorium on executions until the state fixes problems that could lead to false convictions.

The poll also showed that 58 percent of Kentuckians prefer life sentences without parole or other lesser sentences instead of the death penalty.

Will Wright, KyCIR’s summer fellow, can be reached at wwright@kycir.org and (724) 344.6945. 

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