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November 8, 2009

Capital justice greatly delayed (and very costly) in Kentucky

Thanks to How Appealing, I saw this long article from the Louisville Courier-Journal, which is headlined "Kentucky's troubled death-penalty system lets cases languish for decades."  This companion article, headlined "Killer's appeals drag on 29 years," explains how long capital justice gets delayed in the Blue Grass State.  Here are how the main article starts:

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. Since the death penalty was reinstated nationwide in 1976, Kentucky's trial courts have sentenced 92 defendants to death. Only three have been executed, compared to the five inmates who have died while their cases were being appealed.

In fact, because of Kentucky's ponderous system, more than one-third of the state's 36 current death-row inmates — 13 in all — have been there at least two decades. That's a higher percentage than in every other state except Tennessee, Nevada and Idaho, according to an analysis of information compiled by the federal Bureau of Justice Statistics.

In addition, 30 other inmates whom Kentucky circuit judges sent to death row over the past 33 years ultimately have seen their sentences reduced as the result of appeals, suggesting widespread flaws at the trial level.

The state Department of Public Advocacy estimates that Kentucky spends as much as $8million a year prosecuting, defending and incarcerating death-row inmates, even as state-ordered budget cuts impair other aspects of the judicial branch of government.

Critics of the capital-punishment system question whether Kentucky can afford to litigate death-penalty cases that drag on interminably and rarely end with an execution, especially when convicted murderers can be sentenced to life in prison without the possibility of parole.

November 8, 2009 at 04:19 PM | Permalink

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123D.

Lawyer rent seeking.

If you allow the lawyer to run the criminal law, one guess as to which you get.

The lawyer should be excluded from all benches, all legislative seats, and all policy positions in the executive. He is a pretextual, lying, thief and armed robber, a synonym for rent seeking.

Pretextual proceduralism in rent seeking is a form of armed robbery. Because the system is rigged airtight in favor, not of the murderer, but of the murderer's thieving lawyer, there is every moral and intellectual justification for the families of the murder victims to start by kicking the asses of the lawyers on both sides and of the judges. Then try to drive them out of town. Failing that, kill them, as their client killed their loved one, rough by the same method. See how the thieving, self dealing lawyers like it. Other lawyers will probably love it, because that will generate massive business.

Posted by: Supremacy Claus | Nov 8, 2009 5:40:40 PM

Two thoughts. First, since in this state, at least, capital punishment is de facto life imprisonment, I wonder what all the fuss is about. DP opponents have achieved almost all of what they want to do, i.e., stop executions. Maybe it's time to, as they say, move on.

Second, I see no reason why the situation could not be substantially improved by statute. The legislature would declare that courts must resolve DP cases within six months (or a year, if you like). The same statute would automatically move DP cases to the top of the docket to make it easier for judges to deal with the new mandate.

The idea that it takes 29 years to resolve a murder case, no matter what the sentence, is preposterous. Most of these delays result from lazy judges and kitchen-sink defense counsel who count delay as being as much of a victory as victory itself. This will continue as long as there is no effective sanction for filing intentionally dilatory motions.

Posted by: Bill Otis | Nov 8, 2009 7:50:02 PM

Bill:

There are a thousand ways the appeals process could be improved. The most fundamental way to improve the process, however, is to start with competent trial counsel, as well as parity in funding both the defense and prosecution. Two things are certain: if McNally had tried the case there would not have been a death sentence and if there had been adequate funding the case wouldn't have sat dormant for seven years awaiting funds.

You can't realistically expect to have it both ways, refusing to provide the tools for an adequate defense and at the same time carping about delay.

Posted by: Anon | Nov 8, 2009 8:14:58 PM

There is a very clear and simple solution to the exorbitant cost of the death penalty: speed up the process. Defendants have the constitutional right to a speedy trial, and therefore, the families of victims should have the right to a speedy execution after an affirmed conviction and sentence. In most states, the defendant has an automatic appellate right to that state's highest court. That process alone takes several years. After the conviction and sentence are affirmed, the defendant then files an ineffective assistance of counsel (Strickland) motion, regardless of how well his trial attorney performed. That motion is almost always denied at the trial level, and the defendant again appeals all the way back up to the State's highest court. Again, this process takes several more years. Once the trial court's ruling on that issue is affirmed, the defendant then files a habeas to the nearest federal district court and then continues the ridiculous appellate process until some federal judge (or usually, a panel of federal appellate judges) finally put an end to it. Once again, that process takes several more years. In most states, taxpayers are footing all of the defendant's legal bills.

There is no reason that this process cannot be, if not limited, then streamlined and sped up. Unfortunately, however, victim's rights are rarely a consideration. The whole purpose of this tedious, expensive, and protracted process is twofold: 1) to provide a disincentive to prosecutors and victims' families to seek the death penalty, and 2) to outlaw the death penalty by judicial fiat. As to the second point, one cannot help but see that as time passes, state supreme courts invariably make it more difficult for a death sentence to be affirmed because, with every case, defendant-friendly rulings, such as the "merging" of aggravators, are issued. I'd have more respect for the anti-death penalty crowd if they would make their case by fairly advocating for it through the democratic process, instead of securing small--albeit, powerful---victories by legal subterfuge.

My name is Don and I am a prosecutor (Please do not post my email address)

Posted by: Don | Nov 8, 2009 8:30:33 PM

Anon --

"You can't realistically expect to have it both ways, refusing to provide the tools for an adequate defense and at the same time carping about delay."

1. To say that a 29 year delay is grossly excessive is hardly "carping."

2. There is something called NACDL. Perhaps it could see to the competence of its own lawyers rather than blame everybody else.

3. But for however that may be, the idea that bad lawyering can account for nearly three decades of delay is absurd. The only accounting for it is intentional dallying, as I suspect you know.

Posted by: Bill Otis | Nov 9, 2009 12:09:12 AM

Don: If the rent seeking lawyer makes $billion from the death penalty appellate business, face it, half goes to the prosecution. The latter needs to speak up more for the murder victim and to end the hyper-proceduralism of criminal lover judges and lawyer legislators.

I would start by exposing the over-zealous criminal lover, looking for picayune lawyer gotcha, rather than the substance of innocence. I would press ethics charges, and seek to have judges exclude them from the business. I would also demand that all criminal lover judges be fired. I would demand they be assessed legal costs from personal assets. So on. You are doing nothing because you get half the booty from this land piracy operation.

You also have to do something about the appalling rate of innocence on death row. Your bar sucks. You are total incompetents. Imagine the screaming if 20% of new cars would not start. Or if surgeons has a rate of 20% of wrong site surgery. They would be arrested, not sued, as threats to the public health. I would end all prosecutorial self dealt immunities, and start to imprison prosecutors who intentionally falsify evidence.

Face it. You are just another set of slacking, incompetent, self-dealing government functionaries, allowing mass criminality, and having a high false positive rate of conviction from laziness. You contribute to the truism, government does nothing well, except seek the rent.

Posted by: Supremacy Claus | Nov 9, 2009 7:16:21 AM

The blaming of defendants and defense lawyers for the lengthy "delays" (aka the appeals process mandated by state and federal law) is a convenient, and sometimes reasonable, argument. I wish equal attention were paid to the ways in which "error" (aka prosecutorial overreaching and trial court mistakes) also extend the process. Those on death row for 29 years are almost always there that long because their sentence (or conviction) is overturned at least once and sometimes multiple times because appeals courts find legal and constitutional violations at trial. Sometimes this is IAC, other times it is Brady violations, Giglio violations, Batson violations, etc. If prosecutors wanted to speed up this process they could do their part. But often they're more interested in cutting corners – gaining every advantage that the adversary process will allow, even if it makes their case vulnerable on appeal. If they took a longer view – a more enlightened view of their own self-interest – many of these cases would move quicker. The simplistic blaming of defense lawyers for seeking to protect their clients' statutory and constitutional rights, as though those were mere technicalities and as though that were not their job is cheap and easy as arguments go, but it doesn't speak to the complexity of the problem. In truth the death penalty problem is a lot like the drug enforcement problem as depicted by the Wire tv show – it's a system and all actors in it are complicit in its failings, even those who ostensibly are trying to fix it.

Posted by: dm | Nov 9, 2009 8:38:33 AM

dm --

As I suspect you know, it wouldn't make a particle of difference if the process were pristine from start to finish. Defense counsel would file exactly the same boatload of motions they do now, because the real agenda is not to "safeguard constitutional rights" and so forth. The real agenda is to run the clock.

Batting a case back and forth for 29 years is a circus, there's no other way to put it. A commenter here named George has recently asked what promotes respect for the law. Absurd delays like the one featured here promote DISrespect for the law, and understandably so.

Citizens in the great majority of states that have capital punishment have the right to expect that their law will be enforced, not subjected to a sort of interminable gamesmanship that wouldn't be tolerated in a middle school debate.

Once the defendant's factual guilt has been established beyond a reasonable doubt, and we have had one round of full review to ensure that his trial, even if not perfect (as none is) was fair and its result reliable, then get on with it. The public is entitled to something better than a three decades-long sideshow.

Posted by: Bill Otis | Nov 9, 2009 9:43:46 AM

maybe I am confused here, but the numbers on the article indicate that 18 death sentences are unaccounted for based on 92 total sentences with 3 executions, 30 reductions in sentences, 5 natural deaths, and 36 inmates currently on death row. what happened to those other 18 inmates?

Posted by: virginia | Nov 9, 2009 10:55:48 AM

oh and Bill, I'm sure you know full well that courts are very capable of disposing of frivolous motions and sanctioning lawyers who bring them. You don't spend 29 years in court unless there was some sort of substantial issue. so you're actually providing more evidence that the system is broken.

Posted by: virginia | Nov 9, 2009 10:58:21 AM

In California, inmates on death row wait an average of around 3 years just to get an attorney on appeal appointed. That's not the fault of the defense bar or the defendant. It's because there aren't enough qualified lawyers willing to take on the cases at the rates paid. From what I can tell (and, admittedly, this is California-specific), the delays are due more to a lack of funding than anything else. Raise the rates and more lawyers will want to do the cases. Of course, there's no political gain to be had by increasing funding for DP cases, so it'll never happen.

Posted by: AC | Nov 9, 2009 11:55:28 AM

Don writes: "I'd have more respect for the anti-death penalty crowd if they would make their case by fairly advocating for it through the democratic process, instead of securing small--albeit, powerful---victories by legal subterfuge."

That's a little smug, Don, and disingenuous as well.

For reasons that should be clear to anyone paying attention in post-Willie Horton America, the "democratic process" offers next to no hope for those opposed to state-orchestrated killings.

A reliably loud, angry constituency for "get tough," and "hang 'em high" approaches to law enforcement has been locked and loaded for decades. And politicians of both parties have learned either to cash in on this phenomena or avoid incurring its wrath.

Excesses, extremes and abuses in the criminal justice system have joined a number of lingering problems the democratic process apparently is incapable of even addressing, let alone fixing.

That's why "movement judges" are such a disappointment. Only "activist" judges are likely to stand between excitable majorities and the wretched outcasts left to the mercies of an increasingly oppressive justice system.

And let's not forget, Don, lots of condemned inmates were later shown to be innocent.

Don also notes: "families of victims should have the right to a speedy execution after an affirmed conviction..."

Sure. Some, maybe even most, victims' families favor executing assailants. But it's also true that some victims' families actively oppose the death penalty and have even formed organizations for that purpose.

For me the lingering question is this: Who's further along the jungle-civilization continuum, those who speak for mercy and restraint on behalf of the condemned or those who clamor for electrocuting, hanging, shooting or poisoning them?

Posted by: John K | Nov 9, 2009 12:47:57 PM

John K --

"For reasons that should be clear to anyone paying attention in post-Willie Horton America, the 'democratic process' offers next to no hope for those opposed to state-orchestrated killings."

By "state-orchestrated killings," I take it you mean court ordered executions following a defendant's having been found guilty BRD, and by a unanimous jury, of at least one murder, usually with aggravating circumstances such as torture, sadism or lying in wait. Is that about it?

Not that it makes a difference. Those opposed to the DP still have plenty of "hope." What they lack is an argument that persuades anyone not already on their side.

"Excesses, extremes and abuses in the criminal justice system have joined a number of lingering problems the democratic process apparently is incapable of even addressing, let alone fixing....Only 'activist' judges are likely to stand between excitable majorities and the wretched outcasts left to the mercies of an increasingly oppressive justice system."

By all means, let's cashier that pesky "democratic process" and have the rules written by King George.....oh, wait, I mean by Elite and Highly Knowledgeable Thinkers. Who would you suggest? Van Jones, maybe? Al Sharpton? Bill Ayers?

Ah, yes, and the "wretched outcasts left to the mercies of an increasingly oppressive justice system." This refers to whom, specifically? Multi-millionaire celebrities like Martha Stewart (one of your long-time favorites as a candidate for victimhood)? Or was it people toward the other end of the spectrum, like John Couey (who got the DP for abducting, raping and murdering (by burying alive) a nine year-old child)? Or the Beltway sniper, who gleefully and for weeks used human beings for target practice? Is he a "wretched outcast" of the oppressive system? How about the high-ranking Army psychiatrist from last week, Major Hasan, whose idea of an afternoon's amusement was to murder as many unsuspecting colleagues as he could, which was quite a few. Are you oozing sympathy for him too?

"And let's not forget...lots of condemned inmates were later shown to be innocent."

Name a single inmate in the last 50 years who has been found by any authoritative and neutral body to have been innocent, but who was executed. Just one.

"Who's further along the jungle-civilization continuum, those who speak for mercy and restraint on behalf of the condemned or those who clamor for electrocuting, hanging, shooting or poisoning them?"

The people furthest along are those who understand that civilized life requires defined standards of behavior and the enforcement thereof (which is the principal difference between civilization and the jungle); who have the moral confidence to act on this truth (as Abraham Lincoln and FDR did, in not merely supporting but using the death penalty); and who are not deterred by high-minded lectures from those whose safety is secured by precisely the discipline they so piously condemn.


Posted by: Bill Otis | Nov 9, 2009 3:16:15 PM

Here's the thing Bill, it's impossible to name any executed person who's been declared innocent by an "authoritative and neutral body" over the past 50 years, not because no innocent person has been executed but rather because there's no such body and the closest thing we have to such a body isn't in the business of declaring people innocent. Once someone's dead, standing is kinda hard – impossible in a criminal case. And so to get a criminal court to take up the case of an already executed defendant is pretty much impossible. But even if a court did take up such a case, in postconviction, criminal courts are tasked neither with the job nor the ability to find someone innocent. Instead their job is to determine whether the newly discovered exculpatory evidence can be heard notwithstanding the (often stingy and punishing) procedural bars, and then (in the rare cases where the exculpatory evidence isn't barred) to determine whether the new evidence meets the standard for a new trial. In virtually every state that standard is not "innocence" – it is substantial probability of a different outcome, or something of that nature.

In other words your asking for evidence of something that does not exist because only the legal system could provide it, and the legal system has decided never to provide it.

If one wanted to do more than hide from the issue, one could look at the 130+ people who have been sentenced to death and who later had their convictions vacated only to have the state eventually drop their case. While not all of those individuals were factually innocent, in a number of cases the evidence of innocence is overwhelming. (And in a number the state ended up later convicting someone else for the crime.) In many of those cases the original convict was given a stay with just days until their execution and often because of the extraordinary work of student volunteers or dogged investigators. While this doesn't "prove" that an innocent person has been executed, it certainly suggests that in some cases absent volunteer students, dramatic recantations, and other extraordinary circumstances, an innocent has been executed. Or you could just read about cases like Willingham. But if you refuse to open your eyes surely you will continue to be correct in suggesting that you see nothing.

Posted by: dm | Nov 9, 2009 4:28:08 PM

BTW, Bill. I responded to your "why not just tell the truth" remark in the Bernie Kerik thread of Friday's blog.

Posted by: John K | Nov 9, 2009 5:35:05 PM

John K --

OK, thanks, I'll go read it.

Any response to my Nov 9, 2009 3:16:15 PM comment on this thread?

Posted by: Bill Otis | Nov 9, 2009 6:03:02 PM

I think Bill's theories about the death penalty would be more persuasive if there was any documented correlation between use of the death penalty and the murder rate. However, the murder rate is actually higher in states that have the death penalty, so it's tough to argue that anyone's "safety is secured by precisely the discipline they so piously condemn."

Posted by: Obsrvr | Nov 9, 2009 7:22:46 PM

Bill --

“By ‘state-orchestrated killings,’ I take it you mean court ordered executions following a defendant's having been found guilty BRD, and by a unanimous jury, of at least one murder, usually with aggravating circumstances such as torture, sadism or lying in wait. Is that about it?”

Yes. My government meticulously, elaborately, ceremoniously planning, scheduling and ultimately killing human beings. I’m against it, regardless of whether it’s justified as enforcing standards, deterring crime (which I don’t concede) or exacting revenge.

If I could, I’d pull a Republican-style, Hyde-Amendment hat trick and bar the use of my taxes from supporting government acts I consider immoral including unprovoked invasions and occupations of sovereign countries, killing innocent strangers with Predator Drones, incarcerating tens of thousands of non-violent American drug users and, yes, executing our own prison inmates.

“By all means, let's cashier that pesky "democratic process" and have the rules written by King George.....oh, wait, I mean by Elite and Highly Knowledgeable Thinkers. Who would you suggest? Van Jones, maybe? Al Sharpton? Bill Ayers?”

No need to cashier it. But important to keep executive and legislative branch limitations in mind when weighing the relative contributions and obligations of the judicial branch.

In the America I read about as a kid, the judicial branch would be doing a much better job of keeping vote-grubbing pols from wiping their backsides with the Constitution.

”Ah, yes, and the "wretched outcasts left to the mercies of an increasingly oppressive justice system." This refers to whom, specifically? Multi-millionaire celebrities like Martha Stewart (one of your long-time favorites as a candidate for victimhood)? Or was it people toward the other end of the spectrum, like John Couey (who got the DP for abducting, raping and murdering (by burying alive) a nine year-old child)?...”

Yes, Martha Stewart was one of the oppressed, without a doubt. John Couey? He should suffer for as long as he lives for what he did to that little girl, but that doesn’t mean I want him killed.

For every evil criminal you believe needs killing, Bill, I’m sure someone from one of the innocence projects could match it with an equally compelling example of an innocent citizen who spent years or decades on death row before being exonerated.

BTW, Bill, I’m assuming you’re pleased that all the costly, irritating delays being complained about in this thread kept a number of innocent citizens alive long enough to win exoneration.

Posted by: John K | Nov 9, 2009 8:23:10 PM

hmm

"Name a single inmate in the last 50 years who has been found by any authoritative and neutral body to have been innocent, but who was executed. Just one."

Bill i suggest you take a good long look at texas since there is at least one there. It was fixing to be reveled that texas had in fact executed an innocent man when the Texas Govt sanbagged the govt comitte that was fixing to hear evidence from 3 diff sets of arson specialists who claimed to have PROOF the govt had no clue what it was talking about and had in fact KILLED an innocent man who had NOT comitted arson and murder.

Posted by: rodsmith3510 | Nov 9, 2009 8:38:50 PM

The responses to my post illustrate the enormous chasm between academia on one hand, and the real world, on the other. When I graduated from law school and stepped into the courtroom for the first time, I was under the false assumption that the criminal defendants that I was prosecuting were essentially like me, but with substance abuse problems that caused their criminal actions. Indeed, some are. Long experience, however, has taught me that there is a certain element of society that cannot be reformed or rehabilitated. Only two means exist to effectively deal with them: 1) to cage them for the rest of their lives with criminals of similar ilk, or 2) to kill them.

People like John K don't understand the difference between the real world and academia because they have never had to look the mother of a murder victim in the eye and see only immeasurable pain. They have never had to look at horrific crime scene photos and then watch a video of the taped confession from the man who did it, and who never expresses any remorse for ending a human life only hours before.

But that's fine. I hope that John K never loses his naive outlook on life, because were he to do so, we can only deduce that he would have had to personally experience the very worst that humanity has to offer. And I wouldn't wish that on anyone.

Posted by: Don | Nov 9, 2009 9:18:26 PM

Obsrvr --

"I think Bill's theories about the death penalty would be more persuasive if there was any documented correlation between use of the death penalty and the murder rate."

I doubt you could be persuaded to support the DP if God himself gave you the figures; one of the most startling things about abolitionist thinking is that it INTENTIONALLY ignores the facts of any given murder, on the theory that facts of particular cases don't count, 'cause the result (no DP) must be the same no matter what.

In any other context, a position like that would get laughed off stage.

Nonetheless, since you asked, let me refer you to the Bureau of Justice Statistics figures, which I summarize below. If you want to check my math, you are of course free to go the the BJS site on your own:

In the late sixties and seventies, the United States had a virtual moratorium on executions. From the end of 1965 through 1980, there were only six of them. Over that same 15-year period, the murder rate DOUBLED. It rose from 5.1 murder victims per 100,000 to 10.2. The number of murders in 1965 was slightly less than 10,000; the number in 1980 was 23,040 -- an increase of somewhat more than 13,000 murder victims during the DP moratorium.

When the moratorium petered out and executions began again in significant numbers, a very different picture emerged. In the 15-year period from 1991 to 2005 (inclusive), there were 861 executions. In that same period, the murder rate dropped from 9.8 to 5.5 -- a decrease of 44%. The number of murder victims decreased from 24,700 to about 16,200. In other words, with the end of the moratorium and the resumption of executions, there were more than 8000 fewer murder victims per year.

There is your "documented correlation between use of the death penalty and the murder rate."

Posted by: Bill Otis | Nov 9, 2009 10:22:27 PM

Bill -

The fact that the murder rate declined at the same time the execution rate rose does not mean, as any logic professor would tell you, that the death penalty caused a drop in the murder rate. Have you ever heard the phrase "correlation does not imply causation"? During the same time period you cite, the number of microwave ovens in American homes exploded. Maybe that caused a drop in murders.

The fact is, states with the DP have a higher murder rate that states without. That would seem to imply that use of the DP causes murders, not reduces them. I assume you'll have some kind of logic-free explanation for that as well.

Posted by: Obsrvr | Nov 10, 2009 11:35:14 AM

Obsrvr --

"The fact that the murder rate declined at the same time the execution rate rose does not mean, as any logic professor would tell you, that the death penalty caused a drop in the murder rate. Have you ever heard the phrase 'correlation does not imply causation'?"

The question is whether YOU ever heard of it. Your question of me was, to use your exact words, to furnish "documented correlation between use of the death penalty and the murder rate." This is your sentence in full: "I think Bill's theories about the death penalty would be more persuasive if there was any documented correlation between use of the death penalty and the murder rate." (Post of Nov 9, 2009 7:22:46 PM).


You asked specifically for CORRELATION. I gave it to you. Now that you got it, and you don't like what it implies, you want to change the subject, then cover up your bait-and-switch with the usual ad hominem stuff.

Posted by: Bill Otis | Nov 10, 2009 3:29:29 PM

Don writes: "People like John K don't understand the difference between the real world and academia because they have never had to look the mother of a murder victim in the eye and see only immeasurable pain."

As a newspaper reporter and editor of more than 34 years, I met numerous family members of crime victims and observed their profound misery close-up.

I also encountered family members whose loved ones were sentenced to lengthy prison terms or condemned to death. Their misery was no less compelling.

Once I interviewed a prison official who teared up and choked with emotion as he recalled an executed inmate he'd befriended in the 20 or so years they'd spent together on death row.

Executions easily inflict as much grief as they quell.

Posted by: John K | Nov 10, 2009 4:37:42 PM

John K --

The difference is that the guy who decided to blow the victim's head off to get his wallet and leave no witnesses had a choice. The victim didn't.

Posted by: Bill Otis | Nov 10, 2009 4:54:48 PM

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