Post updated at 1:15 p.m., correction appended.

Last month, a federal judge struck down California’s death penalty. In the first two pages of the opinion, Judge Cormac J. Carney — a George W. Bush appointee — summarized his reasoning: 

“[S]ystemic delay has made… execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on death row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”

This is not the first time a state’s death penalty has been ruled unconstitutional. A nationwide moratorium was imposed by the Supreme Court in 1972, which was lifted in 1976. Since then, one branch or another of government in several states has done away with the death penalty. Currently, 32 states are referred to as “retentionist” (that is, they retain the use of capital punishment).

lethal_20injectionIt is unusual, however, for it to be done away with in a single state by a judicial proclamation. And Judge Carney’s reasoning is unusual. The death penalty, he concludes, is both ineffective and arbitrarily cruel because it is not used. Carney’s ruling is based in part on Justice Brennan’s concurring opinion in the 1972 case that put the death penalty on hold. Brennan wrote: “When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system.”

Kentucky’s death row is nowhere near the magnitude of California’s. Nonetheless, the commonwealth shares the systemic problems decried by Judge Carney. Since 1976, 78 people have been sentenced to death in our fair state. But in Kentucky, as in California, its implication is practically fictional. Only three people have been executed in the last five decades. There are currently 33 people on death row in Kentucky. Of those 33, 11 were sentenced in the 1980s. That means a third of all currently condemned men have been on death row, waiting to die, for around 30 years each. A jury recently recommended death for Larry Lamont White; the murder for which he was convicted happened in 1983. White was sentenced to die once before in 1985, but his conviction was overturned on appeal. 

Shortly after the beginning of his first term in office, Gov. Steve Beshear ordered the death of Marco Allen Chapman, making him the only Kentuckian to be executed this century. He volunteered to forego the procedural devices most inmates — condemned or not — take full advantage of. These devices, such as habeas corpus petitions, keep inmates’ cases in limbo, buying them extra decades of life. Essentially, Chapman asked to die. 

Kentucky State Penitentiary, home to the state's death row
Kentucky State Penitentiary, home to the state’s death row

In fact, only one of the three prisoners executed since 1976 has not been a “volunteer.” That one, Harold McQueen, was sentenced in 1981 and electrocuted 16 years later, having spent a much shorter time on the Row than many of the inmates there now. He was white, middle-aged, and convicted of murder, just like almost all of Kentucky’s death row inmates. His accomplice was convicted of the same crime and paroled in 1988. A staff psychologist described McQueen as a “corrections success story.” There doesn’t seem to be any logical explanation for McQueen to be Kentucky’s only involuntary execution of the last 50 years aside from McQueen’s incredibly bad luck. And it’s hard to imagine a system that kills people based on luck as one that is constitutional, moral, or sane.

This bizarre reality of the application of the death penalty is exactly what Justice Brennan had in mind 40 years ago, when much of the rest of the world was officially abolishing capital punishment. And it is what Judge Carney had in mind when he struck down California’s irreparable state-sanctioned death machine. Carney’s closing statement describes “a system in which arbitrary factors, rather than legitimate ones like the nature of the crime or the date of the death sentence, determine whether an individual will actually be executed.” 

The solution, it would seem, is simply to start executing people. Appoint more lawyers. Take their appeals away. Speed things up. But that isn’t what the California opinion is suggesting, because it isn’t that simple. Time-consuming procedural safeguards, like those forfeited by Marco Chapman, exist for a reason. Every state that applies the death penalty, without fail, fucks it up.

Take, for example, the incredible number of ghastly mishaps associated with lethal injection. Accounts of executions taking hours because officials couldn’t find a vein, or administered the drugs incorrectly, or because the condemned person simply would not die properly. The last few years have seen an upswing in these horror stories due to states using “experimental” drugs, which, for obvious reasons, have not been approved, tested, or even evaluated by any self-respecting medical professional. In fact, Kentucky has had no opportunity to carry out an execution since since 2011, when a Frankfort judge halted the execution of Gregory Wilson due to concerns about the state’s lethal injection protocol.

But even if you believe we are a nation that should, on occasion, allow the government to torture people, there are the exonerations with which to contend: 144 people have been released from death row since 1973 upon proof of actual innocence. These exonerations often occurred after the inmate had exhausted the lengthy appeals process. DNA evidence swoops in to save the day just before a prisoner’s last meal, an eyewitness recants decades later, the real killer confesses, etc. Even one such exoneration means the system is deeply flawed. It does not take a legal scholar to deduce that innocent people have been killed by the state; people who did not have the benefit of DNA evidence, or a competent lawyer, an unbiased jury, or — again — just dumb luck.

As far as claims of innocence that go unresolved before execution, the examples are quite literally countless. Cameron Todd Willingham, executed in Texas after being convicted of murder on the basis of junk science, is a stark example. And Ruben Cantu, whose accuser recanted after his execution, is believed by almost everyone involved in that case, including the prosecutor, to have been innocent. The state’s response was to threaten the prosecuting witness with a “murder by perjury” charge. We don’t know how many innocent people die, we just know that it happens. Accepting that basic reality is difficult, but denying it is deliberately ignorant. 

There are those who disagree, of course. People who take the position that it is acceptable to kill innocent people in the furtherance of greater justice. But even those who believe an omelet requires a few extra broken eggs cannot point to any realistic benefit conferred by the death penalty. The idea that states are saving money by executing prisoners instead of housing them indefinitely has long been debunked. No serious study has ever demonstrated the death penalty has reduced crime. And as Judge Carney points out, it is hard to imagine a punishment which has only a fraction of a chance at actually being carried out could have much of a deterring effect.

We retain capital punishment not because it is a deterrent, nor because it brings peace to the victims’ families, nor because it is somehow cost-effective. Indeed, Kentucky does not even utilize it. We have it because we have it. Because we’ve always had it. Because we want to believe it is as useful as it ever was (if, in fact, it ever was). At best, it is an uncomfortable security blanket for those who still believe what has been conclusively disproved by virtually every serious study, i.e., that the threat of death has ever prevented any crime, or brought peace to any victim’s grieving family. At worst, it is a psychological torture device. A rack that slowly stretches the psyche of the condemned, his family, and the family of the victim with the slight-but-looming possibility of execution 20, 30, or 40 years later. 

These flaws, combined with well-documented racial and economic disparities in its application, makes the death penalty nationwide and in Kentucky something worse than just the “lottery system” feared by Justice Brennan. And should our federal courts adopt Judge Carney’s reasoning, capital punishment in Kentucky may well be exposed as the expensive, ineffective, obsolete relic that it has truly become.

The original version of this column incorrectly stated Larry Lamont White was the first inmate sentenced to death in Kentucky in over a decade. IL regrets the error.

Dan Canon is a Louisville civil rights attorney and a musician who lives in Clarksville. Dan blogs at Conflicts Check.


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