SUNDAY EDITION | Is the death penalty dead in Kentucky?

LOUISVILLE, Ky. (WDRB) – Seven years ago this past November, the state of Kentucky executed Marco Allen Chapman for killing two Gallatin County children and injuring their mother and sister.

No one has been executed in Kentucky since then. And some believe no one will be again.

If Kentucky does execute any of the 33 people currently on death row, the state will have to overcome several obstacles, including a legal challenge that has been pending for years, changing judicial and legislative attitudes and the lack of the necessary drugs or protocol needed for lethal injection.

“In view of the litigation and the inability to get the drug issue resolved, I’m tempted to believe that Kentucky will not ever use the death penalty again,” said former Kentucky Supreme Court Justice Joseph Lambert, now an attorney in Mt. Vernon, Ky. “The number of hurdles is very substantial.”

It’s already been more than five years since Franklin Circuit Judge Phillip Shepherd halted all executions in Kentucky amid concerns about the mental status of condemned inmates and state’s drug protocol used in lethal injections.

And that court case, filed in 2006, isn’t going to be over any time soon.

It’s also been more than a year since Kentucky abandoned a controversial two-drug mix used to execute prisoners, at least in part because a similar process used in botched executions in Oklahoma and Ohio. The hope was to come up with a new protocol within six months.

In July, the Kentucky Attorney General’s office wrote that the state Department of Corrections has “diligently worked on potential changes” to the procedures used to carry out an execution.

But because of U.S. Supreme Court rulings regarding the drugs used in the Oklahoma execution, completing protocol new Kentucky protocol “will take longer than initially expected,” according to court records.

At the time, the attorney general’s office wrote, it’s possible the Department of Corrections will not be able to produce “proposed regulations for public review and comment until sometime in 2016.”

As a result, Kentucky doesn’t possess a protocol or the drug cocktail necessary to carry out executions. Officials with the Department of Corrections did not answer questions on where the issue stands.

“It’s on hold until they develop a new execution protocol, which they will hopefully put a lot of time and thought into before settling on drugs like they did the past time, which are clearly inappropriate for executions,” said David Barron, an assistant state public advocate who represents several Kentucky death penalty inmates.

As the decade-old court case lingers in Franklin Circuit Court, attitudes about the death penalty across the country are changing.

Since 2007, seven states have abolished the death penalty. And just last week, the U.S. Supreme Court declared the death penalty in Florida unconstitutional. The high court ruled that Florida’s system gave too much power to judges, and not enough to juries, to decide whether to impose a death sentence.

In September, United States Supreme Court Justice Antonin Scalia told students at Rhodes College that he "wouldn't be surprised" if his court ruled the death penalty unconstitutional.

“I think the country is moving in that direction, both judicially and legislatively,” said local defense attorney Ted Shouse.

Since Chapman was executed in 2008 by lethal injection at the Kentucky State Penitentiary in Eddyville, juries in the state have only sentenced four inmates to death. That compares with 13 defendants given the death penalty during a similar period, from 2000 to 2006, according to records from the state Administrative Office of the Courts.

The number of executions in the U.S. last year – 28 executions in six states - was the lowest in nearly 25 years.

Last month, defense attorneys representing a Louisville defendant asked a judge to exclude capital punishment for their client, in part, citing “a shift in the country’s legal attitude toward the death penalty.”

Defense attorneys Shouse and Annie O’Connell filed the motion on behalf of Brian Edmonds, who was convicted of two counts of murder. They argued the nation “is moving towards a consensus that the death penalty violates the ban on cruel and unusual punishments. This court should join that evolving standard.”

Shouse and O’Connell also cited a 2013 American Bar Association study that found about 60 percent of people in Kentucky sentenced to death since it was reinstated in 1976 had their sentences overturned on appeal or were granted clemency.

A judge denied the motion, but Shouse said he believes the U.S. Supreme Court will eventually find the death penalty to be unconstitutional.

"When I became a lawyer 17 years ago, I was interested in doing capital litigation and I wondered then if I would live long enough to see the end of the death penalty in the United States,” Shouse, 48, said in an interview this week. “Now I think I may see it before I retire."

It is an issue that even has Republicans and Democrats joining sides, in part because of the growing concerns about the cost of the death penalty. 

Death penalty cases are costly because they require two public defenders, mental health experts, more filings and motions to the court and extra preparation while requiring a larger panel of potential jurors. And because each potential juror must be questioned individually about their views of the death penalty, jury selection can take much longer than in a typical case. And if a jury does recommend a sentence of death, the case will drag on in appeals for years.

“It costs an enormous amount of money to litigate those cases,” said Lambert, the former chief justice. “To be honest, in most cases, it would be cheaper to keep a convicted murderer in prison for the rest of his life than to litigate the question of death penalty and ultimately succeed in a death sentence down the road.”

The state Department of Public Advocacy has estimated that Kentucky spends as much as $8 million per year prosecuting, defending and keeping death-row inmates in prison.

Last month, Democratic Sen. Gerald Neal pre-filed a bill that would abolish the death penalty in Kentucky. This month, Republican Rep. David Floyd, R-Bardstown, did the same. The measures would replace the death penalty with life in prison without the possibility of parole.

Neal said the issue is gaining more traction each legislative session, and pointed out that lawmakers met in Paducah in 2014 to discuss the controversial topic.

“For different reasons, some on moral grounds, some because of the cost factor, some because they recognize the system is broken,” Neal said of legislators discussing the demise of the death penalty.  “I think there is growing understanding that this method of eking out 'justice' in this fashion is coming up far short.”

But Kenton County Commonwealth’s Attorney Rob Sanders said “the vast majority of Kentuckians believe the death penalty should be an option in the worst cases. That hasn't changed.”

He said there is a “small but vocal member of fiscal conservatives who mistakenly think we can save tax dollars by eliminating the death penalty,” but that public defenders would then devote those resources to fighting life without parole cases.

“If you ask Kentuckians if, God forbid, the next Sandy Hook, Boston Bombing, theater shooting, or San Bernardino massacre happens here, should the death penalty be an option, the answer is an overwhelming ‘Yes!’” 

New Democratic attorney general Andy Beshear said in a statement that he is a "strong proponent of the death penalty.

"Currently, because there is a stay of all executions entered by Franklin Circuit Court, the Office of the Attorney General is awaiting the next step in the process by the Department of Corrections to write regulations and procedures.”

A spokeswoman for Governor Matt Bevin did not return phone calls seeking comment. A Courier-Journal profile of Bevin in October said he supported the death penalty.

Jefferson Commonwealth’s Attorney Tom Wine said the majority of Kentuckians still support the death penalty - 67%, according to a 2013 Kentucky Bluegrass poll.

And he noted that as recently as 2014, a Jefferson County Circuit Court jury handed down a death sentence for Larry Lamont White, for raping and killing a woman in 1983 - his third murder conviction.

“There are some crimes so heinous … that the death penalty will serve as a deterrent,” Wine said. “It will send the message to our society that this behavior will not be tolerated.”

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