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U. S. Supreme Court rules midazolam may be used in executions

Murphy Error Rate Death PenaltyToday’s Supreme Court ruling regarding the use of midazolam in executions will have no immediate effect on Kentucky because Kentucky has no protocol in place and is unable to execute anyone at this time.

This ruling allowing the use of midazolam in executions ignores the fact that the death penalty is falling into disuse across the country. In Kentucky, the American Bar Association Assessment report highlights flaw after flaw in the system Kentucky employs to kill prisoners.

Throughout the country conservatives and liberals increasingly agree that the death penalty is broken beyond repair, regardless of how we carry out executions or which drugs are used.

The administration of the death penalty is extremely costly; the long and drawn-out process inflicts more pain and suffering on grieving families; and it is impossible to completely eliminate the execution of an innocent person.

The simple truth is that the death penalty cannot be fixed and that the only solution is to replace the death penalty with a sentence of life in prison without parole as Senator Gerald Neal (D) and Representative David Floyd (R) have proposed in bills they introduced in past legislative sessions.

In Glossip Justice Stephen Breyer dissented and called into question its very constitutionality. He wrote:
In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.

The time for repeal in Kentucky is now.

Cartoon: used with permission of the artist, Marc Murphy

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Lethal Injection! Is Kentucky About to Kill Again?

Not expecting this to happen again anytime soon.

In June 2014, Joe Sonka, writing for LEO Weekly, reported that two recent executions in Ohio and Oklahoma that turned gruesome “touched off a renewed debate over the death penalty system in America.”

Four years earlier, Franklin Circuit Judge Phillip Shepherd ordered a stop to executions in Kentucky until a new state protocol (regulations regarding killing inmates) could be developed and approved. He was responding to motions filed by attorneys of several death row inmates that the state’s protocol was illegally put in place and the judge agreed.

After the Department of Corrections revised its protocol and held the public hearing required by law, defense lawyers again challenged the state in 2012. In that new protocol the state said it would use two drugs, one being midazolam, the same drug Ohio and Oklahoma use during the botched executions.

Defense attorneys argued that the drugs themselves and the method of administering them violated provisions of the U. S. Constitution.

Judge Shepherd

By July 2014, Judge Shepherd said that “he had concern about issues surrounding the recent botched executions and signaled that it might be the time to revisit Kentucky’s lethal injection method due to changing circumstances,” wrote Sonka for Insider Louisville. Shepherd ruled the suit could go forward.

Sonka reports that one attorney for the defendants said, “Judge Shepherd has recognized the significance of the highly botched executions that have become a routine occurrence in the country, particularly when midazolam (a sedative) is used in an execution, and has decided that these claims need to proceed forward and go to trial with full transparency in Kentucky of what the Department of Corrections is doing, plans to do, and why they are doing it, and the means that are leading to so many botched executions.”

After this July ruling, Arizona botched an execution using these same drugs which U. S. Sen. John McCain described as “torture.”

In September Judge Shepherd said that defense attorneys could use these botched executions at trial in their lawsuit. Subsequently, in November 2014, according to Sonka in another article in Insider Louisville, the Kentucky Department of Corrections told the court it planned to “make changes to the administrative regulations that include, but are not limited to, the elimination of the current two drug execution protocol as adopted in 2012.”

The Department said it would “take six months to review and research potential changes to its lethal injection protocol.”

Seven months have almost lapsed since the Department withdrew its proposed regulations and no new protocol has been publicly revealed. KCADP awaits a new proposal and publishes this post because quite a few persons recently wanted to know where we are with executions in Kentucky.

Still on hold and awaiting the next proposal by the state.

Meanwhile since June 2014, new milestones toward abolition have been reached:

  • Democrat State Sen. Gerald Neal and Republican State Representative David Floyd filed bi-partisan legislation to repeal the death penalty in Kentucky;
  • lawmakers in the state of Nebraska repealed the death penalty in May 2015;
  • the number of former death row inmates released because they were wrongfully convicted has risen to 154;
  • a June 1 2015 Quinnipiac nationwide poll shows “that more Americans prefer life without parole (48%) than the death penalty (43%) for people convicted of murder. Since Quinnipiac last asked the question in 2013, support for life without parole has risen by five percentage points and dropped for the death penalty by five points;
  • Henry McCollum, a man identified by Supreme Court Justice Antonin Scalia as the reason the death penalty exists, is one of those 154 persons. He was released after 30 years in jail, 8 of them on death row, shown by DNA evidence to be innocent. In June 2015 North Carolina Governor Pat McCrory granted him a pardon; and
  • the American Society of Health-System Pharmacists has adopted a resolution opposing the participation of pharmacists in executions by providing drugs to states for that purpose.

The countdown continues, but it is only a question of when, not if, the death penalty in Kentucky is repealed.

Graphic art: Rare Newspapers 
Photo: Office of the Lexington Fayette Commonwealth’s Attorney


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Nebraska lawmakers abolish the death penalty; override governor’s veto

roll callNebraska lawmakers overrode Governor Rickett’s veto today and abolished the death penalty in that state. The vote came after hours of floor debate on the issue.

“This is another milestone in the march to complete abolition in this country,” said Rev. Patrick Delahanty, chair of the Kentucky Coalition to Abolish the Death Penalty. Delahanty said that Kentucky has a system as broken as Nebraska’s and a bi-partisan effort to repeal led by lawmakers in both chambers and parties. “This gives us every reason to believe,” he said, “that repeal in Kentucky is only a matter of time. The sooner Kentucky lawmakers follow in the footsteps of the Nebraska action, the sooner we will all be better off.”

The Coalition, informed by the ABA assessment report of 2011, knows that Kentucky has a broken, flawed system that jeopardizes the lives of the innocent, does nothing to bring healing to family members who lost loved ones to murder and wastes taxpayers dollars without providing the justice it promises.

Click here to read the New York Times account of today’s proceedings.

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Herald-Leader praises Judge Goodwine in editorial

Judge Goodwine

After reporting last week about the decision Judge Pamela Goodwine made when she granted a defense motion to remove the death penalty as a possible punishment in an upcoming trial, the Lexington Herald-Leader has now praised the judge in an editorial on Mother’s Day.

Noting that Judge Goodwine is a murder victim family member, the editor wrote,

Congratulations to Circuit Judge Pamela Goodwine on striking a blow for common sense and conserving public resources….

Her carefully written order noted that the facts of the case — a single murder related to a dispute over drugs and money — “are not unique.” But, she writes, “not one time in this Commonwealth has a death sentence been recommended by a jury and upheld on appeal in a case involving actual or suspected drug trafficking.”

The editor asked,  “Why expend resources and inconvenience prospective jurors, their families and employers when it’s obvious a death verdict will never be returned?” So had Judge Goodwine. She did, indeed, strike a blow for common sense.

This Coalition believes it is time for lawmakers to recognize how broken this death sentencing scheme is in Kentucky and give further consideration to doing away with it entirely. Life without parole is the cost effective, severe punishment that can protect us and satisfy the need for justice.

Photo: Kentucky Progress Blogspot

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Judge rejects prosecutor’s attempt to seek death penalty

The Lexington Herald-Leader is reporting that Fayette County Judge Pamela Goodwine has removed the death penalty as a sentencing option when defendants go to trial:

“Co-defendants in an upcoming robbery-murder trial will not face the possibility of execution after Fayette Circuit Judge Pamela Goodwine granted a defense motion to remove the death penalty from the jury’s sentencing options.”

In her order, Judge Goodwine provides an explanation of her decision. After describing the outcomes of other trials with similar facts, none of which ended in the jury sentencing anyone to death, Judge Goodwine concluded that no Fayette County jury would even seriously consider a death sentence in this case. Like other cases, the murder of Derek Pelphrey involved drugs and a large amount of money. Judge Goodwine’s five page order can be read by clicking here.

Fayette Commonwealth Attorney Ray Larson

Judge Goodwine points out in a gentle way that Fayette County Commonwealth Attorney Ray Larson does not use the discretion state law allows and seeks the death penalty in far too many cases.

Bringing every case to court and asking for a death sentence, instead of bringing the worst of the worst cases, consumes court time and resources that non-capital cases do not. In 2011 the ABA report on Kentucky’s death sentencing process prepared by distinguished Kentucky legal scholars and former Kentucky Supreme Court justices drew similar conclusions. They recommended establishing an entity to provide oversight of state prosecutors and death penalty decisions.

Judge Goodwine’s decision certainly highlights one of many ways using the death penalty in Kentucky has led to a broken, expensive system of justice. KCADP will continue to call for the repeal of this law. Only repeal will insure prosecutorial misconduct and discretion will not lead to costly trials and the risk of executing the innocent. Kentucky juries will still have the ability to sentence violent murders to life without parole. This assures safety for Kentuckians and severe punishment for murderers.


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