By Angela Hatton
http://stream.publicbroadcasting.net/production/mp3/wkms/local-wkms-930672.mp3
Frankfort, KY – Kentucky reinstituted the death penalty in 1976. Since then, we've executed three people, two of whom volunteered. But in that same time, the state Supreme Court has reversed 43 death sentences. The head of Kentucky's Department of Public Advocacy thinks that's too high. The DPA calls the state's judicial system broken, and says a moratorium is needed on all executions until the system undergoes a thorough eval uation. Angela Hatton has more on the accelerating death penalty law debate.
Just over a month ago, 53-year-old Gregory Wilson was set for execution at the Kentucky State Penitentiary in Eddyville. But a few days before the scheduled date, Franklin Circuit Judge Phillip Shepherd stayed the execution. The reason he cited was Kentucky's death penalty protocols. Shepherd agreed with attorneys who said Wilson may not be eligible for the death penalty because he is mentally disabled. Now Wilson's entire 1987 trial is under scrutiny for mismanagement.
The head of the public advocacy department Ed Monahan, says Wilson's trial is an example of an entire system that needs revision.
"The amount of resources provided to courts, prosecutors and public defenders is not enough to do this at the highest level possible. The determination of whether somebody should live or die is so complex, involves so many factors, that it's hard to get it right."
The department has come out strongly against the death penalty in the last few years. Monahan says execution is costly and ineffective as a deterrent to crime. He calls the system imprecise too because death penalty cases may be influenced by publicity and public opinion.
"We have elected judges, we have elected representatives. So the decision whether or not to have a death penalty and whether or not to prosecute it has a political dimension."
"Kevin Wayne Dunlap was a case that the decision was made solely on the actions he committed, on the crimes he committed."
Commonwealth's Attorney G. L. Ovey was the prosecutor in the western Kentucky case that made Dunlap the Commonwealth's most recent addition to death row. A jury in Livingston County convicted Dunlap of killing three children, raping and attempting to kill their mother, and burning the family's house. Ovey says it was one of the worst cases he's worked in his thirty-year career.
"If I could think of another word that was worse than horrific, I would use it."
Ovey says as a prosecutor, the power to seek capital punishment is not something he takes lightly.
"Even the decision to seek it is, to me it's an important decision. You have to be ultimately answerable to your own mindset. You've got to be responsible to your heart, and to the law and to your own soul."
Even so, Ovey says for some cases, the death penalty is the only punishment that fits the crime. But Monahan says mitigating circumstances must be taken into account.
"Death penalty cases are different in that it's not just looking at the crime. The U. S. Supreme Court is clear, that the person and context for which that person's actions took place must be looked at."
Monahan says that includes mental illnesses, troubled childhoods, and mental disabilities. He says most of the 33 people on death row have one or more of these problems.
"I've never found a death penalty case to be as black and white as a prosecutor would communicate it."
The DPA isn't the only voice denouncing Kentucky's capital punishment system. State Representative Tom Burch of Louisville has sponsored legislation for several sessions that would abolish the death penalty.
"Giving someone the death penalty is not justice. It's revenge."
Burch says he's seen a decrease in the number of his constituents who favor the death penalty. A University of Louisville study measured Kentuckians' opinions on the death penalty over ten years, between 1989 and 1999. The survey showed a 12 percent increase in death penalty opposition, though the majority still favored the death penalty. But a 2006 study from the University of Kentucky shows only 30 percent favor the death penalty, with a slightly larger percentage preferring life in prison without parole. Again, Representative Burch.
"Nobody wants to spend the rest of their life in a 6 by 8 cage. To me that would be more punishment than executing somebody."
Commonwealth's Attorney G. L. Ovey says life in prison and death row already mirror each other closely.
"The way the death penalty is administered in this commonwealth and really nationwide it's becoming almost a person is locked up in a cage the rest of their life because of the appeals and the appeals and the retrials."
Detractors say executions are more expensive than life in prison. State Representative Jim Wayne of Louisville, a death penalty opponent, says the state has no numbers that either support or deny that claim. He says the death penalty's cost to the Bluegrass state is unknown.
That could change. The American Bar Association is targeting Kentucky for its ninth statewide death penalty protocol study. The study is a comprehensive look at the capital system, from arrest to sentencing. Investigators emphasize that they aren't making a judgment on whether the state should have the death penalty. Michael Mannheimer is a law professor at Salmon P. Chase College in Northern Kentucky, and one of the study's lead investigators.
"The hope is that it will give the people of Kentucky, and especially the legislators in Kentucky a fair view of what the death penalty looks like in Kentucky, how it's implemented. The result could be that we don't need to make any changes."
Then again, he says, maybe we do. The ABA's team won't finish its study until late next year. The DPA's Ed Monahan maintains as long as the state's capital punishment standards are in question, an indefinite moratorium is needed.
For the time being, the DPA will get its wish, not because the state has issued a moratorium, but rather because of a technicality. The state's supply of sodium thiopental, one of the three drugs used in executions, is expired. Officials don't expect to have more until early 2011.