For the second time in two months, The New York Times‘ editorial section has dedicated an article exclusively to areguing for repeal of Kentucky’s broken death penalty system (read the first article here). From Lincoln Caplan’s “‘Clear Errors’ About the Death Penalty“:
When the United States Supreme Court reinstated capital punishment in 1976, it said that the penalty could never be mandatory. Even if a jury finds a defendant guilty of a brutal murder, it still must weigh evidence about how to sentence him. Aggravating evidence concerns why a jury should impose a death sentence. Mitigating, or moderating, evidence concerns why it should not. That is the law of the land.
But it is not the law of the Kentucky Supreme Court. The U.S. Supreme Court decided this week not to review a ruling by that state court which upheld the 1986 death sentence of Benny Lee Hodge. Justice Sonia Sotomayor wrote that because “this is a capital case, and clear errors of law such as those here should be redressed,” she dissented from her court’s decision and laid out the Kentucky court’s errors.
Mr. Hodge was convicted of murder, robbery and burglary. He and two others posed as F.B.I. agents to get into a doctor’s home; stole guns, jewelry and around $2 million of cash; strangled the doctor until he was unconscious, though he did not die; and stabbed his daughter to death. Mr. Hodge’s childhood was not as brutal as the murders he attempted or perpetrated, but it was horrible by any measure.
Over time, his mother was married to six different men. They were all substance abusers and some were physically abusive to her. Mr. Hodge’s father battered the boy’s mother while she carried him in utero. After he was born, his father beat her while she held him as a baby in her arms. The stepfather she married when Mr. Hodge was eight was even worse, a “monster” according to witnesses, who raped his mother repeatedly and beat her once until she miscarried.
When Benny Lee Hodge tried to defend his sisters and mother, his stepfather kicked the boy, beat him with a belt and made him watch as he killed the boy’s dog. This relentless abuse, two psychologists said, was “ruinous” to the boy’s development. He ended up a career criminal, in prison for theft for 13 of the 16 years before he committed the crimes at the age of 34 that led to his death penalty. But, the Kentucky Supreme Court recounted, he “did not inflict any abuse on his own children and was described by all as a loving father.”
All of this qualifies as mitigating evidence, but Mr. Hodge’s counsel presented none of it at the penalty phase of his trial. That was grossly inadequate representation. For it to have been a violation of his right to counsel under the Sixth Amendment, however, he had to show in an appeal of his sentence that at least one juror would likely have voted to spare his life if the jury had heard that evidence.
Here is where the Kentucky Supreme Court went dramatically wrong. It mistakenly concluded that his counsel’s failure was not that bad because, Justice Sotomayor wrote, “the court misunderstood the purpose of mitigation evidence.” It said such evidence could have changed his sentence only if it “explained” or provided a “rationale” for his crimes, which it did not. Instead, the State Supreme Court should have followed the U.S. Supreme Court rule about mitigating evidence: it could have changed his sentence if a juror found it gave a reason to spare his life—even if his crimes remained inexplicable.
The court also said it did not matter that he had a “terrible” childhood or that the jury did not learn about it. Because of the “vicious” and “exceedingly cold-hearted” murder and attempted murder he committed, the jury would have sentenced him to death.
In this case, Justice Sotomayor made clear, extensive, uncontested mitigating evidence was not allowed to mitigate. And the “brutal nature” of the murder and the attempted murder made the death penalty all but mandatory. Both errors are fundamental under U.S. Supreme Court rulings. They make the Kentucky Supreme Court approach to the death penalty unconstitutional in the case.
The seriousness of these errors is all too familiar in Kentucky. Death sentences there have been overturned in two out of every three cases since 1976. A year ago, the American Bar Association published a 521-page report about the enormous problems of the state’s capital punishment system. The errors in the Hodge case add to the far-reaching basis for a unanimous recommendation of the Kentucky Human Rights Commission this year: it is time for the state to abolish the death penalty.