Kentucky death penalty protocol declared unconstitutional by Kentucky judge

Demonstrators march through a courtyard to protest the death penalty during a rally organized by “Catholics Against the Death Penalty-Southern California” in Anaheim Feb. 25, 2017. On May 30, 2019, New Hampshire became the 21st state to ban capital after lawmakers garnered enough votes to override Gov. Chris Sununu’s veto of a bill to repeal the death penalty in the state. (CNS photo/Andrew Cullen, Reuters)

A Franklin County Circuit judge ruled July 2 that Kentucky’s death penalty regulations are unconstitutional because they fail to provide for an automatic stay of execution for intellectually disabled inmates.

Judge Phillip Shepherd ruled Tuesday on a petition brought forth by several inmates currently on death row in Kentucky. The motion alleged the “execution regulations fail to expressly prohibit the execution of an intellectually disabled person.”

The petition went on to say that the death penalty protocols for such cases are “invalid for failing to comply with state and federal law.”

Judge Shepherd said the current state law, as written, is “unconstitutional to the extent that it fails to provide for an automatic stay of the death penalty when the Department of Corrections review has disclosed reasonable grounds to believe the inmate is intellectually disabled.”

Judge Shepherd writes in his decision that the Department of Corrections, when presented with evidence of an inmate’s intellectual disabilities, has a “constitutional duty to suspend” capital punishment “until there has been a judicial determination of the condemned inmate’s intellectual disability.”

Failure to provide for an automatic stay of execution in these circumstances, he writes, “creates an unacceptable risk that an intellectually disabled person will be executed in violation of the Eighth Amendment of the United States Constitution.”

The Kentucky Supreme Court had previously issued a ruling which required an inmate to have an IQ lower than 70 to qualify as intellectually disabled. Subsequently, in 2018, the state Supreme Court cited the United States Supreme Court and said the use of a “bright-line IQ test, without more, cannot be used to conclusively determine that a person is not intellectually disabled” and can be subject to the death penalty.

Opponents of capital punishment — including the Catholic Conference of Kentucky and Father Patrick Delahanty — welcomed the decision by the Franklin Circuit Court.

The CCK, which represents Kentucky’s bishops on matters of public policy, expressed gratitude to the court for recognizing “the injustice” of executing intellectually disabled individuals.

The Catholic Conference has long supported legislative efforts to abolish the death penalty.

“Our legislators need to act soon to abolish the death penalty once and for all,” said Jason Hall, CCK executive director.

Father Delahanty, retired chair of the Kentucky Coalition to Abolish the Death Penalty, said the coalition appreciates the efforts of the public defenders to “force the state to adhere to laws governing executions.”

“However, the best way to ensure the state does not execute mentally disabled and mentally ill people is to abolish the death penalty. We will continue to push Kentucky’s lawmakers to repeal this immoral practice,” said Father Delahanty, a retired priest of the Archdiocese of Louisville.

The Catholic Church stands firmly against capital punishment. Last year Pope Francis ordered a revision of the Catechism of the Catholic Church to assert “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.”

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