Monday, March 3, 2014

Bill to abolish the death penalty in line with Kentuckians’ views, policy developments and fiscal commonsense

Representative David Floyd (R-Bardstown) filed HB 330 on February 4, 2014 to abolish the death penalty in the Commonwealth.
Upon the filing of the bill, John David Dyche, WDRB Contributor, observed, “Two Republican state representatives, David Floyd of Bardstown and Julie Raque Adams of Louisville, joined with six Democrats, including some of the chamber's most liberal members, to sponsor House Bill 330. They want to abolish the death penalty and replace it with life imprisonment without parole for both inmates already sentenced to death and others going forward.  … To paraphrase Victor Hugo, there is nothing so powerful as an idea whose time has come.”

Kentucky’s capital system is costly. In a March 2, 2014 op-ed, Floyd said, “Conservatives are the first to call out government programs that fail to meet intended goals and cost exorbitant amounts of money.” Prosecuting a case as a capital case greatly increases the cost even when the most common result is a sentence of less than death. In our neighboring state of Indiana, a 2010 fiscal report by the Legislative Services Agency found that the average cost of a death penalty trial was around $450,000. Some cases have cost more than $1 million. In North Carolina, it was determined that “Proceeded capital cases cost at least 3 times more than similar cases that proceeded non-capital.” FY07 Capital Trial Case Study PAC and Expert Spending in Potentially Capital Cases at the Trial Level (December 2008). Since 1976 when death was reinstated as a penalty, Kentucky has spent hundreds of millions of dollars on this capital policy with little result. Kentucky has executed three people, two of whom were volunteers.  During that same period of time, three Kentucky Governors granted clemency to five people sentenced to death.

The bill follows upon a highly critical audit of the way Kentucky administers its capital process. The American Bar Association’s Kentucky Death Penalty Assessment Team called for a suspension of executions in Kentucky until the recommendations in its December 7, 2011 audit are fully implemented. From 2009-2011, the Kentucky Death Penalty Assessment Team objectively reviewed the fairness, accuracy and reliability of Kentucky’s system for administering the death penalty. The thorough review was conducted by highly respected Kentucky criminal justice experts including two former KY Supreme Court Justices. It found major deficiencies that undermine the integrity of Kentucky’s system. The ABA Report found a disturbing error rate of approximately 60%. See:   A March 7, 2012 op-ed by 10 former Kentucky prosecutors asked that executions be suspended until these reforms were made.

Public Defenders are appointed to represent the vast majority of those charged with a capital offense and who are currently imprisoned on Kentucky’s death row. Defenders play a critical role in insuring full due process of law is accorded to their clients.  Yet, there are individuals on death row who are severely mentally ill. Several had lawyers who were ineffective. Others had trials in which serious errors occurred that remain uncorrected. Often, capital cases in Kentucky do not just result in non-capital sentences, but even in jury findings that the defendant is not even guilty of murder.  This is an enormous waste of limited resources. Numerous examples of cases that went to trial with death as a possible sentence but resulted in acquittal, reckless homicide or manslaughter verdicts exist in our state. (See list of cases that follow at the end of press release.)

“The case against death as a possible sentence in Kentucky is mounting for good reason,” said Jerry J. Cox of Rockcastle County, Chair of the Public Advocacy Commission, the statewide public defender governing board, and President of the National Association of Criminal Defense Lawyers. Cox said, “The ABA Report identified fundamental defects in the way the death penalty is administered in our state and says those deficiencies are so serious that there should be a moratorium on executions until the defects are fixed.” Cox noted that, “The polling of Kentuckians shows they prefer a different course. Now, Representative Floyd with bi-partisan co-sponsors, fittingly calls for an end to Kentucky’s failed, costly experiment with the death penalty.  Its elimination will save the state millions of dollars, allow prosecutors, public defenders and the courts to focus more resources on other cases which will advance their timely resolution and will avoid wasteful prosecution of cases as capital that result in verdicts far less than death. I agree with John David Dyche that ‘The conservative case against the death penalty has come to Kentucky. It is a compelling one.’” 
“The error rate in Kentucky capital cases over the last 38 years is not acceptable,” said Public Advocate Ed Monahan.  “The errors are pervasive. They compel a conclusion that our system is broken.  This stunningly high rate of error shows that the system cannot get it right. None of us would put our child on an airplane that returned to the airport over 60% of the time because of defective equipment. Elimination of death as a possible sentence is a prudent policy in light of what we know today.

The bill is in line with the views of Kentuckians and the policy developments over the last 10 years . “Widespread support for capital punishment no longer exists” in Kentucky. See Gennaro F. Vito, Attitudes Toward the Death Penalty in Kentucky: A Comparison of results – 1989, 1997, 1999, Kentucky Justice and Public Safety Bulletin, Volume 3, No. 1 (September 2001) p 3. Eighteen states do not have the death penalty. Since 2004, the death penalty has been eliminated in 6 states, New York, New Jersey, New Mexico, Illinois, Connecticut, and Maryland. See:

For the last 17 years, Public Defender leaders have sought adequate resources, the implementation of national standards of practice in capital cases, and a moratorium on executions pending reforms. Defenders issued a call for a moratorium in June 1997 based on the experience in Kentucky and the ABA Call for a Moratorium, Resolution No. 107 (February 1997). Defenders have repeatedly renewed the call for a moratorium. See The Advocate, Volume 19, No. 4 (July 1997) p. 9-14; Volume 23, No. 1 (January 2001) pp. 52, 53; The Death Penalty in Kentucky: the System is Broken, KBA Bench and Bar (November 2003) pp. 8-13; DPA Press Release, November 2009; DPA Press Release, December 2011.

Examples of cases that went to trial with death as a possible sentence but resulted in acquittal, reckless homicide or manslaughter verdicts are:
  • Joshua Cottrell (Hardin County, 03-CR-00465) – Convicted of Manslaughter,  2nd Degree
  • Larry Osborne (Whitley County, 98-CR-00006-001) - Acquitted on retrial after reversal on appeal.  
Fayette County Capital Prosecutions Where Defendant Was Acquitted of Murder Charge
  • C.H. Brown (87-CR-00506-001) - Charged with Murder and Robbery 1; Acquitted of murder, guilty of robbery
  • Mark Dixon (95-CR-00577) - Charged with Murder, Robbery 1, and 3 counts of Wanton Endangerment 1;  Acquitted on all charges.
  • Carlos Cortez (99-CR-00369-002) - Charged with Murder,  Robbery 1, and Burglary 1; Acquitted on all charges
Fayette County Capital Prosecutions Where Defendant Was Convicted on Lesser Charges
  • Earl Cheeks (90-CR-00049-002) - Charged with Murder and Robbery 1; Convicted of Manslaughter, 2nd Degree; acquitted of robbery
  • Myron Wilkerson (98-CR-00631-002) Charged with Murder-Non-Family-Gun; Burglary 1; Robbery 1; Guilty of Man-2 10 yrs., NG Burglary, Guilty Rob-1 20 yrs.
Jefferson County Capital Prosecutions Where Defendant Was Acquitted of Murder Charge:
  • Nashawn Stoner (98-CR-02446) - Charged with Murder and two counts of Robbery, 1st Degree Acquitted on all charges.
  • Donnez Porter (97-CR-01951) - Charged with Murder (2 counts), Robbery, 1st Degree, and Assault, 1st Degree. Acquitted on all charges. (Motion to exclude death penalty pretrial due to prosecutorial misconduct was denied.)