By Father Patrick Delahanty
Fifteen years ago last month, Supreme Court Justice Harry A. Blackmun concluded that after a 20-year struggle with the issue of the death penalty he could no longer support it.
“The death penalty experiment has failed,” he wrote. “From this day forward, I no longer shall tinker with the machinery of death.” He called upon his fellow justices to abandon the “delusion” that capital punishment could be consistent with the Constitution.
In 2009, the American Law Institute (ALI), national legal scholars and professionals who had provided the model legislation that led to the system now in place, followed Justice Blackmun and withdrew its support for its own model.
ALI Director Lance Liebman said that the Institute was withdrawing its support of Section 210.6 of the Model Penal Code “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”
In layman’s terms “it’s broke and can’t be fixed.”
The Institute also decided not to engage any further in proposing legislation related to capital punishment.
No matter how significant these voices are, Kentucky continues to ignore reality and “tinker[s] with the machinery of death,” working on a protocol of execution to satisfy a Circuit Court judge in Frankfort that they’ve come up with a “humane” cocktail of drugs for killing inmates.
In recent weeks, however, death penalty machinery ground to a halt in two more Kentucky cases. Grave errors in two separate cases resulted in death sentences being struck down, and, in one case, even the conviction was reversed.
A federal court concluded that a death sentence was improperly imposed on Roger Wheeler because the trial judge wrongly dismissed a juror who was able to consider the range of penalties fairly. The Court stated that to exclude an otherwise eligible juror stacks the deck against the defendant. Carrying out a death sentence under circumstances like these is to “deprive (a defendant) of his life without due process of law.”
In the other case, the Kentucky Supreme Court concluded unanimously that Michael St. Clair’s trial for kidnapping was tainted by the introduction of evidence of a murder that took place in another state. This, the court said, could lead to undue prejudice, confusion of the issues in the trial, and misleading the jury. The trial court also allowed the out-of-state murder victim’s widow to offer testimony that was irrelevant to the charges St. Clair faced. The court said these errors were not harmless and struck down both the convictions and the death sentence.
These two new examples mean that nearly 70 percent of the death sentences imposed in Kentucky have been reversed because of errors in one or both of the two trials required when the death penalty is sought.
Keeping this system in place increases the trauma victims’ family members already suffer because of this broken system.
Add to that the possibility of executing the innocent, as could have happened in the case of Larry Osborne had his conviction and death sentence not been unanimously reversed by the Kentucky Supreme Court. Osborne was subsequently declared “not guilty” by a jury in 2002 and released.
These harmful errors also burden taxpayers with the added costs of new trials that have consumed millions of tax dollars and left other areas of need unfunded. The Courier-Journal has reported that “Kentucky is spending millions of dollars each year on a capital-punishment system so ineffective that more death-row inmates are dying of natural causes than are being executed.”
Enlightened legislators from both parties filed bills in the recent session of the General Assembly to repeal the death penalty (Senate Bill 15, House Bill 82), to determine its costs (Senate Concurrent Resolution 11 and House Concurrent Resolutions 30) and to “tinker” with the system with the hope of repairing it (Senate Bill 190). None received consideration.
Justice Blackmun saw the light 15 years ago and quit tinkering with the machinery of death; those who drafted the model law for its implementation agreed in 2009 that the machine is broken beyond repair and withdrew their model law and decided not to offer another one.
It is time to quit tinkering with the machinery of death in Kentucky. Death penalty opponents — a growing number of persons throughout Kentucky — will be working hard to provide the only fix to this broken promise of justice: repeal.
Kentucky can use life without parole to impose a severe punishment on those who kill. This protects society and allows a wrongfully convicted person to be restored to freedom when the mistake is discovered.
Father Patrick Delahanty is a retired priest of the Archdiocese of Louisville and chair of the Kentucky Coalition to Abolish the Death Penalty.