The 2nd meeting of the Interim Joint Committee on Judiciary was held on Tuesday, October 16, 2001, at 10:00 AM, in Room 149 of the Capitol Annex. Representative Gross Lindsay, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Robert Stivers, Co-Chair; Representative Gross Lindsay, Presiding Co-Chair; Senators Ray Jones II, Marshall Long, Gerald Neal, R.J. Palmer, II, Katie Stine, Elizabeth Tori, and Jack Westwood; Representatives Paul Bather, Kevin Bratcher, Perry Clark, Jesse Crenshaw, Joseph Fischer, Bob Heleringer, Jeffrey Hoover, Arnold Simpson, John Will Stacy, Kathy Stein, Gary Tapp, John Vincent, and Rob Wilkey.
Guests: Rev. Patrick Delahanty, Chair, Kentucky Coalition to Abolish the Death Penalty (KCADP), and Policy Analyst, Catholic Conference of Kentucky (CCK); Carl Wedekind, Director, KCADP Abolition Now Campaign; Paul Stevens, Murder Victims Families for Reconciliation; Dr. Ralph Kelly, Commissioner, Department of Juvenile Justice; Sheila Schuster, Kentucky Youth Advocates; Dr. Kerby Neill, Child Psychologist; Senator William Wooton, Member, West Virginia Legislature; Jane Chiles, Executive Director, Catholic Conference of Kentucky (CCK); George Moore, President, Kentucky Commonwealth’s Attorney Association, and Montgomery County Commonwealth’s Attorney; David Stengel, Jefferson County Commonwealth’s Attorney; Cynthia Gale Cook, Calloway County Commonwealth’s Attorney; Ray Larson, Fayette County Commonwealth’s Attorney; Mike Malone, First Assistant, Fayette County Commonwealth’s Attorney Office; Tom Lockridge, Jessamine County Commonwealth’s Attorney, Barry Bertram, Taylor County Commonwealth’s Attorney; Nancy Lee Riffe, member of the Board of the Arc of Kentucky; and Jay Dolan, member of the First Unitarian Church of Louisville, Kentucky.
LRC Staff: Norman Lawson, CSA; Scott Varland; Jonathan Grate; Peter Cassidy; and Lisa Fenner.
Chairman Gross Lindsay called the meeting to order, the roll was called and a quorum was present. The minutes were approved by a voice vote. Chairman Lindsay announced that each side would have one hour in which to present its views.
The first speaker was Mr. Carl Wedekind of the Kentucky Coalition Against the Death Penalty, who announced how the group was to proceed and introduced the next speaker.
The next speaker was Mr. Paul Stevens of the Murder Victims Families for Reconciliation, who spoke of the 1969 murder death of his daughter who was babysitting at the time of the murder. The murderer was the ex-husband of the woman for whom she was babysitting. The perpetrator attempted to rape his daughter prior to murdering her. The crime took place in Indiana and the defendant was convicted of manslaughter. Mr. Stevens moved to Kentucky in 1972 and told of attending a retreat and having a change of views about the death penalty. He now views the death penalty as a "grievous sin" and has engaged in a prison ministry focusing on death row inmates since that time. He was with Harold McQueen when Mr. McQueen was executed.
The next speaker was Father Patrick Delahanty, policy analyst for the Catholic Conference of Kentucky, who spoke of the history of the 1988 legislation proposed by Representative Dotty Priddy to prohibit the execution of the mentally retarded and why that legislation was not made retroactive at the time. At the time of the passage of the legislation, the Corrections Cabinet assured the General Assembly that no one on death row at that time was mentally retarded. Since then, according to Father Delahanty, it has been learned that David Skaggs who was on death row at that time is mentally retarded and perhaps other inmates are mentally retarded as well. Father Delahanty urged passage of legislation to make the 1988 legislation retroactive and prohibit the execution of persons currently on death row who are mentally retarded.
The next speaker was Dr. Shiela Schuster, representing Kentucky Youth Advocates, who spoke in favor of a bill to prohibit executing juveniles. In Kentucky, a youth can receive the death penalty at age 18, Dr. Schuster indicated, and that in the past ten years only seven countries have executed juveniles. Those counties, Dr. Schuster indicated, include Pakistan, Iran, and Yemen. Dr. Schuster indicated that 28 states have abolished the juvenile death penalty and that a University of Kentucky survey shows that 80 percent of the public is in favor of eliminating the death penalty for juveniles who commit murder. Dr. Schuster indicated that Kentucky Youth Advocates supports eliminating the death penalty for persons under the age of 18.
The next speaker was Dr. Ralph Kelly, Commissioner of the Department of Juvenile Justice. Dr. Kelly spoke in opposition to the juvenile death penalty and indicated that one of the present persons on death row committed his crime while a juvenile. Dr. Kelly indicated that of the states that have the death penalty, 18 use age 16, five use 17, and the others use 18. Dr. Kelly, citing information from Amnesty International, indicated that the United States is in violation of international treaties prohibiting the execution of children, that 110 nations have banned executing children, and that 73 juveniles are currently on death row in the United States. Dr. Kelly stated that "the criminal justice system in the United States is blatantly racist" and indicated that more African American children are waived for trial as adults and more are tried for capital offenses than their representation in the population. Dr. Kelly indicated that in the past 12 months no child in the juvenile justice system has committed a death penalty eligible offense.
The next speaker was Dr. Kerby Neill, a child psychologist who has evaluated six juveniles charged with murder and who had served on the Juvenile Code Task Force. Dr. Neill indicated that the death penalty for juveniles was not proposed by the task force but resulted from an amendment after the bill was filed. Dr. Neill indicated that a person had to be 16 to drive, 18 to vote, and 21 to purchase liquor, and that society recognized the limitations of youth in other areas and should do likewise with regard to the execution of children. Dr. Neill urged that there are "ample serious punishments" short of the death penalty and that children’s emotions, reason, and judgment are not that of an adult. They are not just little adults, Dr. Neill said, and that their brains are not fully developed at age 18, as females’ brains are fully developed at 21 and males at 25. Dr. Neill cited various studies relating to the judgmental ability of juveniles who commit murder, and indicated that more needed to be done with regard to poverty, abuse, and family problems to reverse the murder rate and that more needs to be done to counter the media trend of portraying murder as a viable solution for one's problems. Dr. Neill urged abolition of the death penalty for juveniles.
The next speaker was Mr. Carl Wedekind of the Kentucky Coalition Against the Death Penalty who indicated that the organization started in the 1970's, centered on the Catholic Church, and that over the years the organization has grown to embrace 40 religions and civic organizations and has thousands of members in Kentucky. Mr. Wedekind cited recent studies of innocent persons, prosecution problems, and inadequate defense of death penalty cases in Illinois as causing the Governor of Illinois to impose a moratorium on the death penalty in that state until an adequate study of the situation could be made. Mr. Wedekind indicated that many persons on death row in Illinois had been wrongfully convicted and that their convictions had been reversed. Mr. Wedekind indicated that there is a question as to whether innocent people might be on death row in Kentucky and questions as to the decision to try a case as a death penalty case. Mr. Wedekind indicated that in the time since the reimposition of the death penalty in Kentucky, 800 death penalty murders had been committed; only 38 persons are on death row; two persons had been executed; that only five percent of murderers are on death row; that 30 percent of the counties send persons to death row; and that recent surveys show that 54 percent of the public in Kentucky favor life without parole, and that his organization favors both of the bills which have been presented.
The next speaker was Senator William R. Wooton, from West Virginia, who indicated that he is an attorney, former prosecutor, former majority leader of the House of Delegates and now Chair of the Senate Judiciary Committee. Senator Wooton indicated that West Virginia had the death penalty from 1803 to 1965, when the death penalty was abolished and replaced with life without parole. Senator Wooton indicated that the homicide rate did not change in the 36 years following abolition of the death penalty and remains one of the lowest in the nation. He said that during the years the death penalty was in use in West Virginia, three percent of the population was African American and that 43 percent of those executed were African American. Senator Wooton praised Kentucky for passage of the Racial Justice Act, which is designed to address racial problems in the imposition of the death penalty. Senator Wooton spoke of a 1987 case in West Virginia where Glenville Woodall was convicted and sentenced to 500 years in prison on the testimony of Fred Zane of the West Virginia State Crime Laboratory. Later DNA testing proved that Woodall was innocent and Fred Zane was subsequently discredited for giving false testimony in many West Virginia cases. Five other capital offenders were also proved innocent according to Senator Wooton who observed that they might have been executed under the old system before there was a chance of proving their innocence. Senator Wooton observed that violent offenders do not think about the consequences of their act before they act, so that the death penalty does not deter violent offenses and that experience in West Virginia shows no increase in homicides since abolition of the death penalty.
The next speaker was Ms. Jane Chiles of the Catholic Conference of Kentucky, who indicated that the Kentucky Catholic Bishops want an end to killing of the mentally retarded and children, describing these persons as "society's most vulnerable." She indicated that Kentuckians are fair people who favor life without parole in lieu of the death penalty. Ms. Chiles then spoke of her not knowing in the past how she might feel if a close relative was murdered, and how her 26 year old nephew, Scott Johnson, was murdered in the September 11, 2001 terrorist attack on the World Trade Center in New York. Ms. Chiles indicated that her feelings ranged from pain, fear, fleeting hope, and despair, but that she did not feel a need for revenge to prove that killing is wrong. Ms. Chiles recommended passage of the proposed legislation.
Representative Robert Heleringer spoke in favor of the two bills and of his continuing opposition to the death penalty.
Senator Ray Jones asked Commissioner Kelly if the Governor favored elimination of the death penalty for juveniles to which Commissioner Kelly replied that the administration gave him permission to testify. Senator Jones then asked if the administration knew what the Commissioner was going to say to which Commissioner Kelly responded, “No.” Upon further questioning Commissioner Kelly indicated that he was concerned about the disproportionate number of minorities who have been incarcerated in his facilities and that the department has received a federal grant to study the problem.
Representative Jesse Crenshaw asked Senator Wooton if he knew why the homicide rate was so low in West Virginia, to which the Senator replied that he did not know, but the crime rate was also the lowest in the nation.
Senator Gerald Neal commented that the issue of disproportionate minority confinement was a national issue as well as a state issue.
Representative Paul Bather asked Commissioner Kelly what should be done with children who commit murder to which Commissioner Kelly indicated that they should not be put to death because they are still maturing, but that they still have to be held accountable for their acts. He praised the General Assembly for keeping youthful offenders in the juvenile justice system allowing for their treatment while the seven surrounding states send youthful offenders to prison.
The next speaker was Mr. George Moore, President of the Commonwealth's Attorneys Association, who indicated that in a Gallup poll prior to the September 11, 2001 terrorist attacks, 65 percent of Americans favored the death penalty. Mr. Moore observed that "killers have earned the death penalty" and "that there is no adequate substitute for the death penalty" for many violent murders and for terrorist offenses. Mr. Moore observed that the United States has the best judicial system in the world and that we use the jury system followed by a vigorous judicial review of every aspect of the conviction in the imposition of the death penalty. He noted that we are not a vengeful government with evil principles imposing the death penalty in a careless manner as some have suggested. Mr. Moore indicated that in Kentucky the death penalty was not being imposed in a racially unfair manner, that 80 percent of those on death row are white, and when one views the statistics with regard to the race of those who commit death penalty offenses that the statistics are not racially biased.
With regard to those who are mentally ill or mentally retarded, Mr. Moore observed that the courts have many safeguards, including preventing trial at all in some cases, so that the mentally ill and mentally retarded are not unfairly tried. With regard to case reversals, Mr. Moore indicated that thorough appellate review throws out most cases on technicalities occurring during the trial, not on guilt versus innocence, and that this is a further indication on how carefully the system protects the rights of those on trial. With regard to allegations of incompetent defense, Mr. Moore observed that the Department of Public Advocacy has an excellent record in death penalty cases providing two experienced attorneys, investigators, mitigation experts, and other experts at trial, and good appellate representation. Mr. Moore indicated that most criminal defendants do not assert innocence on appeal and that no Kentucky death row case has been reversed because the defendant has been found innocent. Mr. Moore stressed a need to remember victims and families and that the best protection is a predictable level of deterrence. Mr. Moore alleged that the statistics and cost estimates cited by those against the death penalty were inaccurate, that the Journal of Socioeconomics had estimated in an article that one execution prevented seven additional murders, and that released or escaped murderers often kill again. Citing a recent Kentucky experience in which a Commonwealth's Attorney was murdered by a defendant he was about to try, Mr. Moore indicated that criminals frequently target prosecutors and their families for revenge killings. With regard to DNA evidence, Mr. Moore suggested that it be made available equally to the prosecution and the defense and that the Commonwealth's Attorneys are meeting with the Department for Public Advocacy on this issue to see if an agreement can be reached.
With regard to the death penalty, Mr. Moore suggested that hate crimes, premeditated murder, murder of a child under 12, and paid murders should be added to the present aggravating circumstances. Mr. Moore further suggested that a unified appeal process whereby all of a defendant’s claims are presented in one proceeding be adopted so that claims cannot be used to lengthen the appeals process. Mr. Moore was accompanied by Dave Stengel, Commonwealth's Attorney of Jefferson County, Gale Cook of Calloway County, and Tom Lockridge of Jessamine County.
In response to a question from Representative Robert Heleringer, Mr. Moore observed that paroled killers frequently find their way back to death row. Senator Jones spoke of several cases in eastern Kentucky including those of Clavern Jacobs, David Smith, and Eugene Thompson who had all killed in previous incidents prior to the incident for which they were tried and sentenced to death.
Mr. Dave Stengel was asked about whether murderers serving life without parole assault correctional officers more frequently than other inmates to which Mr. Stengel replied that he had no information on the subject.
When asked about the length of time persons on death row are allowed appeals, Mr. Ray Larson, Commonwealth's Attorney for Fayette County, indicated that Kevin Stanford had been appealing for 20 years and urged the adoption of a unified process with shortening of appeal time and indicated that legislation may be brought on this topic.
Representative Kathy Stein commented that prosecutors have become better at prosecuting child violence and family violence but we still have the death penalty. Mr. Moore indicated that younger and younger individuals possess the attitude and dangers of adults and that there is a progressively diminishing age of extremely violent behavior. When asked if the Commonwealth's Attorneys Association favors or opposes elimination of the death penalty for children, Mr. Moore indicated that the matter is still under study and that a decision had not yet been made.
Representative Rob Wilkey informed the committee of a Criminal Justice Council Report indicating that a comprehensive study of the death penalty is desired, that appeal times need to be looked at, and that the 60 percent reversal rate in criminal cases was a problem. Mr. Stengel replied that the reversal rate was an indication of the seriousness with which courts view the death penalty and not an indicator that the defendants were not guilty.
The next speaker was Ms. Nancy Lee Riffe, a member of the Board of the Arc of Kentucky that advocates the rights of the mentally retarded, who indicated that she favored retroactive application of the ban on execution of the mentally retarded.
The next speaker was Mr. Jay Dolan, a member of the First Unitarian Church of Louisville, Kentucky, who indicated that he supports the abolition of the death penalty.
Chairman Gross Lindsay indicated that the November meeting would be the final interim meeting of the committee, that the agenda is not yet complete, but that it will include child support issues. Senator Gerald Neal asked if the death penalty moratorium could be added to the agenda and the Chairman agreed. The meeting was adjourned at 12:30 PM.