Frequently Asked Questions about the ABA Assessment on the Kentucky Death Penalty
What is the American Bar Association position on the death penalty?
The ABA has no position on whether or not there should be a death penalty. However, it does oppose the imposition of the death penalty on the severely mentally ill. The ABA also continues to support the prohibition of the execution of people with mental retardation and those who were under the age of eighteen at the time they committed a capital offense.
Why did the ABA adopt the Moratorium Resolution?
Because the ABA has concerns that, based on quantifiable findings, the system of capital punishment in the U.S. is rife with problems that result in death sentences being handed down and implemented in a completely arbitrary, haphazard fashion.
Since the U.S. Supreme Court reinstated use of the death penalty in Gregg v. Georgia in 1976, problems persist regarding capital jurisdictions’ ability to ensure consistency and accuracy in the imposition of capital punishment from case to case. Many of the 3,300 death row inmates nationwide did not receive the quality of legal representation that the severity and the finality of a death sentence demand. Inconsistencies in prosecutorial treatment of cases remain a serious problem. Study after study indicates that racial and ethnic bias affects the decision as to who gets prosecuted and who gets sentenced to death. The innocent still are not protected adequately from erroneous conviction. And despite the need for courts to correct the serious missteps that occurred at trial like the ones identified above, the states and federal government have instead placed more restrictions on meaningful appellate review since Gregg.
A system that wrongly sentences people to death and then erects considerable obstacles to bar judicial review of their cases is not a system that is functioning well, and our entire legal system suffers as a consequence. To a substantial extent, this situation has developed because death penalty jurisdictions generally have failed to implement the types of changes called for by existing ABA policies. As a practical matter, the best way to consider and fix this broken system requires removing the pressure of impending executions. It is for these reasons that the ABA, while taking no position on capital punishment per se, supports a halt on executions until capital jurisdictions can (1) ensure that death penalty cases are administered fairly and impartially, in accordance with due process, and (2) minimize the risk that innocent persons are executed.
What is the ABA Death Penalty Moratorium Implementation Project?
It’s a project designed by the ABA to monitor and promote progress toward a suspension of executions until capital jurisdictions identify what flaws exist in their system and correct those flaws. In fall 2001, the ABA established its Death Penalty Moratorium Implementation Project (“Moratorium Project”), housed within the ABA Section of Individual Rights and Responsibilities.
Among the Moratorium Project’s many activities is the sponsorship of a series of comprehensive assessments on the operation of several U.S. jurisdictions’ capital punishment laws and processes. Since the ABA’s passage of the Moratorium Resolution, the Association has found that capital jurisdictions have either been unable or unwilling to undertake the kind of comprehensive examination of the death penalty necessary to determine if their system is functioning fairly and accurately. To assist death penalty jurisdictions that have not yet conducted comprehensive examinations of their death penalty systems, the Project decided in February 2003 to examine eight U.S. jurisdictions’ death penalty systems and preliminarily determine the extent to which they achieve fairness and provide due process.
The Project has conducted assessments in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee. This “State Assessments Project” is not designed to replace the comprehensive state-funded studies necessary in capital jurisdictions, but it does highlight individual state systems’ successes and inadequacies. Due in large part to the success of this first round of assessments, the Moratorium Project has decided to embark upon a second round of state assessments in six additional states, including in Kentucky.
What is the State Assessments Project?
The State Assessments Project is designed to determine if problems exist within a state’s death penalty system and identify those problems so that they can be addressed by the proper authorities.
The Assessments provide information about how the assessed states’ death penalty systems are functioning in design and practice and serve as the basis from which states can reform their systems, impose moratoria, and/or launch comprehensive self-examinations. Because capital punishment is the law of the land in each of the assessment states and because the ABA has no position on the death penalty per se, the assessment teams focus exclusively on capital punishment laws and processes and do not consider whether states, as a matter of morality, philosophy, or penological theory, should have the death penalty.
The assessments are funded by a grant from the European Commission's (“EC”) European Initiative for Democracy and Human Rights. As in the first round of assessments, the EC has not sought and does not have any input on the issues we address in each report, who will be hired to conduct the research, how the research is collected, or who will participate on the assessment teams. Nor does the EC have any input in to any state team’s findings and conclusions. The ABA controls the substance and the methodology employed to complete the objectives of the grant proposal.
The assessments use as a benchmark the protocols set out in the ABA Section of Individual Rights and Responsibilities’ publication, Death without Justice: A Guide for Examining the Administration of the Death Penalty in the United States ("the Protocols"), to preliminarily determine the extent to which state capital punishment systems achieve fairness and due process. The assessments are not intended to cover exhaustively all aspects of the death penalty, but they do cover twelve key pieces of death penalty administration, including (1) progression of a capital case and evolution of the state’s death penalty statute; (2) preservation and testing of DNA evidence; (3) identification and interrogation procedures; (4) forensic services; (5) prosecutors; (6) defense services; (7) the direct appeal process; (8) procedural restrictions and limitations on state post-conviction and federal habeas corpus; (9) clemency proceedings; (10) jury instructions; (11) an independent judiciary; (12) racial and ethnic minorities; and (13) mentally retarded and mentally ill offenders.
Why is the ABA undertaking an examination of the death penalty in Kentucky?
In order to obtain a good sense of how the death penalty is working nationwide, the ABA must conduct assessments in as diverse a range of jurisdictions as possible. The ABA also looks for states that have laws on the books that conform to long-standing ABA policies on the administration of the death penalty to determine how these laws are working in practice. Other factors may include the size of the state’s death row and the number of executions and exonerations in the state.
For example, the Commonwealth of Kentucky, until recently, was the only capital jurisdiction in the United States to enact a Racial Justice Act, a policy that the ABA has long supported. In addition, Kentucky has a statewide public defender system, which is also an important component, in the ABA’s view, to an effective delivery of defense services to capital defendants and death row inmates.
What steps are being taken to ensure the validity of the assessments, and what methodology is being used?
The ABA is absolutely committed to ensuring the validity of the assessments. Each state assessment has been or is being conducted by a state-based Assessment Team, which is composed of and/or has access to current or former judges, state legislators, current or former prosecutors, current or former defense attorneys, active state bar association leaders, law school professors, and anyone else whom the Project felt was necessary.
The state assessment teams are responsible for analyzing various laws, rules, procedures, standards, and guidelines relating to the administration of the death penalty. In an effort to guide the teams’ research, the Project created an Assessment Guide that details the data to be collected. The teams must then make a determination as to whether their state is in compliance with a range of minimum standards set out in the ABA Protocols.
And while the ABA supports a temporary suspension of executions, Assessment Team members are not required to support a moratorium or to oppose or support the death penalty. Instead team members must be willing to thoughtfully review the administration of the death penalty in Kentucky and then to make an honest assessment of the fairness and accuracy of that system. No team member was asked about his or her view on the death penalty or a moratorium before selection to the team.
Since the ABA Moratorium Project sponsors the Kentucky Assessment Team’s work, does that mean that the Kentucky Team must support a moratorium?
No. The Kentucky Assessment Team must undertake an objective analysis of the data collected to complete the Assessment Report on the Kentucky Death Penalty. The team has only just begun their research and cannot draw any conclusions about the fairness or accuracy of Kentucky’s death penalty until the report is complete. For this reason, it has not has not called upon the Governor to support a moratorium on executions while the team’s deliberative process is ongoing.
Who are the Members of the Kentucky Assessment Team?
- Linda Ewald, Co-Chair, University of Louisville Louis D. Brandeis School of Law, Louisville, KY;
- Michael J. Z. Mannheimer, Co-Chair, Northern Kentucky University Salmon P. Chase College of Law, Highland Heights, KY;
- Hon. Michael Bowling, Steptoe & Johnson PLLC, Middlesboro, KY;
- Allison Connelly, University of Kentucky
College of Law, Lexington, KY; - Hon. Martin E. Johnstone, Kentucky Supreme Court (Retired), Prospect, KY;
- Hon. James Keller, Kentucky Supreme Court (Retired), Lexington, KY;
- Frank Hampton Moore, Jr., Cole & Moore, P.S.C., Bowling Green, KY; and
- Marcia Milby Ridings, Hamm, Milby & Ridings, London, KY.
Who selected the Kentucky Assessment Team and why were these team members selected?
The Kentucky Assessment Team was selected by the ABA project staff with assistance from various members of the Kentucky legal community. The Kentucky team reflects the geographic diversity of Kentucky as well as a diversity of experience and expertise that serve to make the overall review a fair, complete and accurate picture of the death penalty across the Commonwealth.
Have you notified government entities in Kentucky that you will be conducting this study?
Yes. We have advised several entities both as a courtesy and to seek their participation during the research process. These entities include the Governor’s Office, Attorney General, Department of Justice and Public Safety Cabinet, Kentucky State Police, Office of the Kentucky State Medical Examiner, Department of Criminal Justice Training, Department of Public Advocacy, Kentucky Supreme Court, Administrative Office of the Courts, leadership in the Kentucky General Assembly, Legislative Research Commission, Kentucky State Bar Association, Commonwealth Attorney’s Association, and Kentucky Association of Criminal Defense Lawyers.
Where can I get more information?
For more information please contact one of our co-chairs: Linda Ewald at lsewald@louisville.edu or Michael J. Z. Mannheimer at mannheimem1@nku.edu. You can also reach the ABA’s Death Penalty Moratorium Implementation Project by contacting project director Sarah Turberville at 202-662-1595 or sarah.turberville@americanbar.org. More information about the Kentucky Assessment and the ABA Death Penalty Moratorium Implementation Project is available at our home page.