Eliminate the Death Penalty

(Lexington Herald Leader
Sunday, September 5, 2010)

Eliminate the Death Penalty
by
Donald Vish

The death penalty has become an embarrassment. Its administration has undermined public confidence in the way the justice system works. The best thing its supporters can say about is it’s not used very much.

The modern history of the death penalty in Kentucky undercuts its credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky. Many were eligible for a death sentence. Today there are 34 people on death row. Four people have been executed in the last 53 years. Infrequent use of the death penalty in Kentucky is not proof that executions are reserved for the worst of the worst.

In the last two years a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences while over the years some aggravated murderers got death.  Why?  A bad crime or a bad lawyer or bad luck?    

The disparity in treatment of aggravated murder cases is so inexplicable and so extreme that the legitimacy of the death penalty must be called into question. An honest and impartial examination of aggravated murders in Kentucky would lead one to conclude that it is impossible to discern the legal criteria by which some are sentenced to death and others are not. The gravity of the crime does not appear to be the determining factor.

Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility. Within the universe comprised of heinous crimes and brutal perpetrators administration of the laws governing executions resembles the equivalent of Russian roulette: most of the time nothing happens but every now and then someone gets killed in accordance with the laws of chance.

Last fall, The American Law Institute, the organization that created the blueprint for modern death penalty laws in this country, concluded that the system it created does not work and cannot be fixed because the constitutional imperatives of consistency in sentencing and the need for individualized sentencing cannot be reconciled. In the context of death penalty jurisprudence, the Constitution is at war with itself and has lost.

The current order scheduling for September 16 the execution Gregory Wilson, 53, for the brutal murder and rape of a popular restaurant worker Deborah Pooley, necessitated in part by the need to complete the execution before the sleep drug used in the lethal injection mix expires in October is an example of a broken system. Since there is not enough of the drug on hand to execute the other two inmates whose death warrants are on Governor Beshear’s desk, he had to ask his justice secretary to come up with a selection process. While the process may be formulated in utmost good faith, any process that selects one of three under these circumstances more resembles the verdict of chance than the verdict of justice.

The death penalty is riddled with contradictions and contradictory imperatives.

Using a deadly chemical employed in both lethal injection and euthanasia, executions serve the contradictory goals of

* retribution and a humane death imposed after a
* legal process that applies contradictory legal mandates of even-handed administration of the law and personal consideration of each case and
* all in a special time warp that hurries along slowly.


There are too many pieces to the death penalty puzzle. It’s impossible to make them fit because they don’t. Add accidents of geography, race, demographics and wrong convictions to the lethal mix that capital punishment law has become and you get a justice system that’s killing itself.



Donald Vish is a lawyer, a life member of the American Law Institute and the Director of Advocacy and Education for the Kentucky Coalition to Abolish the Death Penalty