Abolish the Death Penalty: Guest Editorial WAVE TV

Abolish the Death Penalty
(WAVE TV Guest Editorial
1-22-10)

By Donald Vish
KY Coalition to Abolish the Death Penalty

The rarity of executions in Kentucky goes beyond selectivity and enters the realm of freakish oddity – three since 1977 and only four since 1956.

Three conclusions are warranted:

1.The death penalty no longer serves any legal purpose
2.It offends Kentuckians' evolving standard of decency
3.It's arbitrarily applied
A 2006 University of Kentucky poll showed that 67% of Kentuckians prefer a penal option other than death in capital murder cases. The Kentucky Supreme Court should reconsider the continuing legality of the death penalty in light of its marginal and erratic use. Through looking at jury sentencing patterns, the court should conclude the death penalty does not meet legal standards, and that juries believe that life in prison without parole adequately protects the public and punishes the worst of the worst.

That's my opinion.

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The Death of the Death Penalty

The Deathof the Death Penalty

The death penalty is dead. Killed not by judicial fiat or parliamentary maneuver or executive order but by the people. Juries comprised of citizens who swear they support the death penalty in principle have simply quit imposing it in practice.

There have been four executions in Kentucky since 1956. Two involved inmates who dropped their appeals. Scarcity can be a sign of selectivity but the rarity of executions in Kentucky goes beyond selectivity and enters the realm of freakish oddity.

The death penalty record in Kentucky support two conclusions:

1) It no longer serves a law enforcement purpose;
2) It offends Kentucky’s evolving standard of decency.

The supreme court case that resulted in the upcoming public hearings on execution techniques did not rule that the death penalty is legal--only that its machinery must be tinkered, tuned and tended in public.

The U.S. Supreme Court case that reviewed lethal injection in Kentucky did not rule on the legality of the death penalty but only a particular method of execution based upon a particular limited record about a particular regulation that we now know was not properly adopted.

The Kentucky Supreme Court should next address capital punishment head on not to abolish it on its own authority but by ruling that the people already have, secure in the knowledge that life in prison without parole protects the public and punishes the criminal.

FLAWED

Bad Design

Missing Pieces

The legal organization responsible for designing the model penal code has withdrawn its support for a key provision of the code that inadvertently served as the cornerstone for modern death penalty statutes.

The American Law Institute intended to remain neutral on capital punishment when it crafted the model penal code in 1962. The code contained, however, a template for considering conflicting constitutional values in death penalty cases that required due process of law based on objective criteria and individual consideration of the special facts and circumstances of each capital case.

The guided discretion construct was ignored by the states until 1972 when the United States Supreme Court invalidated all state death penalty laws for failing to provide due process of law in a nondiscriminatory manner that weighed the competing interests of even-handed administration of law with individual consideration of each capital case.

States attempted to fix the problem by adopting the guided discretion template of the MPC. In 1976 the Supreme Court approved resumption of capital punishment on the strength of the MPC endorsement.

As a result, the ALI gained first-hand experience with the only law beyond its expertise: the law of unintended consequences.

In October 2009, the ALI withdrew its support for the guided discretion template and a legal report evaluating its application over the years said it had not worked.

It’s now time to look at all other legal and administrative aspects of death penalty administration to determine whether the system is merely broken or intrinsically flawed beyond repair.

253 words

dv

11-18-09

From Noose to Needle, an Interview with Dean Allen Ault

http://www.justice.eku.edu/courses/cor320/video/COR320_DeanInterview.html

American Law Institute to Vote on Death Penalty

ALI to Vote on Death Penalty
In 1962, the American Law Institute (ALI) promulgated the Model Penal Code (MPC). While saying it did not want to take a position on the death penalty, the MPC incorporates Section 210.6 which seeks to ameliorate concerns about the arbitrary administration of capital punishment and to provide meaningful guidance in drafting death penalty statutes. Section 210.6 was ignored for ten years until the Supreme Court invalidated the death penalty raising concerns about its arbitrary and discriminatory administration.

Thereafter, many states readopted the death penalty using Section 210.6 as the template “hoping in part the prestige of the Institute would help to validate these new efforts.” [Professors Carol S. Steiker (of Harvard Law School) and Jordan M. Steiker (of University of Texas Law School), November 2008 Report to the American Law Institute].

In reauthorizing the death penalty in 1976, the Supreme Court relied on the expertise of the Institute and especially the guided discretion furnished by Section 210.6 in upholding the Georgia, Florida and Texas death penalty statutes.

Each year since then, however, the Supreme Court has continually adjusted the approach to administration of capital punishment. “It is clear that the Court’s attempt to regulate capital punishment—largely on the model provided by the MPC— has been unsuccessful...” [Steiker].

On May, 19 2009 the American Law Institute will vote on a proposal made by ALI leadership to withdraw Section 210.6 from the MPC and take no position pro or con on the issue of capital punishment. [The Steiker Report recommended that the Institute withdraw support for Section 210.6 AND issue a statement calling for rejection of the death penalty as a penal option reflecting its view that the death penalty should not be imposed unless its administration can satisfy a reasonable threshold of fairness and reliability. The Steiker Report says there are currently ‘intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment’].

The leadership of the ALI believes neutrality is its only option since constitutional law permits capital punishment, the punishment has substantial support among the citizenry, substantial consensus within the Institute is unlikely and the Institute’s views are not likely to influence the views of legal policy makers.

May 13, 2009

Death Penalty is Costly, Risky, Unfair and Unnecessary

Death Penalty

Declare a Moratorium on Executions in Kentucky Pending a Determination Whether the Death Penalty is Fair, Effective and Necessary
The death penalty is too risky, too costly and too broke to fix. Capital punishment is unfair and out of step with modern thinking. No randomly selected jury in Kentucky would impose it.

The modern history of capital punishment in Kentucky is simple, unusual and cruel. Since 1962, there has been one execution, Harold McQueen (1997) and two state assisted suicides, Eddie Lee Harper (1999) and Marco Chapman (2008). And the prosecutor in the 1962 execution, the distinguished Kentucky Chief Justice William Palmore, 89, said of the death penalty in a 2007 interview:

I'm not so hot for it anymore," "I don't know that it accomplishes anything. [Courier Journal, March 12, 2007).

Kentucky jurors rarely impose the death penalty. Since only jurors who support the death penalty sit on the jury, this sentencing pattern provides a compelling, if not conclusive, indication that capital punishment is contrary to the evolving standard of decency in Kentucky and therefore cruel punishment as a matter or law.

United States Supreme Court Justice Stevens applied his independent judgment, based on his exposure to cases in which the death penalty was authorized, to conclude

… the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernable social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment…. Baze v Rees, 2008.

Conclusion

The death penalty is costly, risky, unfair and unnecessary. In the last 46 years, three people have died on death row. Two requested execution. The last study of the death penalty in Kentucky made almost 40 years ago recommended it be abolished.

A moratorium should be declared to determine whether the death penalty is too broke to fix.


DV
January 7, 2009