On Dec. 3, in the Archdiocese of Louisville’s publication, The Record, editorial editor Joseph Duerr called on Kentucky to enact a moratorium on the death penalty while the American Bar Association reviews Kentucky’s broken death penalty system.
Seven years ago the Kentucky House of Representatives, in a 97-0 vote, approved a joint resolution calling for a study of the death-penalty system in Kentucky.
Among the reasons the resolution cited were growing concerns across the country about problems related to administering capital punishment and about procedural safeguards and assurances of fairness that are crucial in preventing wrongful convictions and executions.
The resolution called for the study of such issues as effective assistance of counsel, access to DNA evidence, evidentiary questions such as jail house informant testimony, resources available to both prosecutors and defense lawyers and prosecutorial discretion in seeking the death penalty.
This study never came about because the joint resolution died in the Senate. But the reasons for such a study remain, and now some of the issues the resolution mentioned will be addressed.
The American Bar Association (ABA) has appointed a 10-member team of lawyers and former judges to study Kentucky’s death-penalty system. Similar ABA studies have been conducted in eight other states, including Indiana and Tennessee.
This study will cover such areas as the adequacy of training for prosecutors and defense lawyers, the preservation and testing of DNA evidence, law-enforcement interrogation and identification procedures, the appeals process, clemency proceedings, instructions to the jury, treatment of racial and ethnic minorities and mental retardation and mental illness.
Such a study is needed in light of problems with the death-penalty system that have occurred in other states. And while Kentucky has not had the large numbers of executions of some other states, an examination of our system of capital punishment is long overdue.
As this ABA study takes place, it’s also important that there be a moratorium on executions — at least until the findings of the study are published and examined for possible policy and procedural changes. Such a halt in executions was called for last week by three groups that made appeals to Gov. Steve Beshear.
Those who wrote letters to the governor requesting a moratorium on executions during the study period included state Public Advocate Edward C. Monahan and Louisville Metro Public Defender Daniel T. Goyette; 14 Kentucky attorneys; and 39 Kentucky writers, including author Wendell Berry and former Kentucky Poet Laureate Sena Jeter Naslund.
As the letter from Monahan and Goyette said: “We should not proceed with executions until this independent evaluation is completed and we are assured that due process has been fully and properly provided in each and every case. … We also have a fundamental responsibility to avoid at all costs the possibility of making an unjust and irreversible mistake.”
There’ s also another reason for putting a halt to executions. Last week state Attorney General Jack Conway asked Beshear to set execution dates for three death-row inmates: Ralph Baze Jr., Robert Foley and Gregory Wilson. Conway said in a statement that the three had exhausted all of their “matter of right” appeals.
The Catholic Conference of Kentucky and the Kentucky Coalition to Abolish the Death Penalty asked Beshear not to sign the death warrants. “In a nation where the judicial system is not perfect and where individuals convicted of crimes have been found to be innocent, the Commonwealth of Kentucky should refrain from exacting the ultimate punishment of death from which there is no reversal,” the conference said in a statement.
It’s the imperfections of the judicial system and the possibility of executing an innocent person that have been long-standing concerns about capital punishment.
This was underscored in the letter Monahan and Goyette sent to the governor. They wrote: “The error rate in Kentucky capital cases over the last 33 years is stunning and unacceptable. It is compelling evidence that indicates the system is broken. This excessive rate of error demonstrates the system cannot get it right in capital cases.”
This is why the ABA study is needed. This also is why Kentucky needs a moratorium on executions while this study proceeds.