Long delays in resolving capital-punishment cases are a persistent national problem. But in Kentucky, the time lapse is extraordinarily severe. Although Kentucky has fewer death-row inmates than most other states, inmates here have spent an average of 26 years on death row — the longest of any state in the country, according to a report issued last November by the U.S. Department of Justice. And there’s little indication that change is likely any time soon. Executions in Kentucky have been prohibited since 2010, when Franklin Circuit Court Judge Phillip Shepherd ruled that state regulations lacked “adequate safeguards” to prevent the execution of “insane” or “intellectually disabled” defendants. Shepherd also found a conflict between regulations requiring a combination of lethal injection drugs and state law allowing the use of either a single drug or a combination of medications.
And in 2019, Shepherd ruled that the state’s execution regulations were unconstitutional because they failed to provide for an automatic stay of the death penalty if a Department of Corrections review showed “reasonable grounds to believe the condemned inmate is intellectually disabled.” State officials currently are considering an amended regulation that would address issues including inmates’ possible intellectual disability and insanity. Once the regulation is finalized, the litigation will continue. So, for now, the 25 men and one woman sentenced to death in Kentucky are stuck, waiting to learn their fate.
None have waited as long as Karu Gene White, who is now 65 years old. His case is emblematic of a capital punishment system in Kentucky that many supporters and opponents alike say is badly broken and needs to be drastically overhauled if not eliminated altogether. After interviewing more than 50 criminal-justice authorities, attorneys, legislators and others, including two former death-row inmates and several family members of victims, the Kentucky Center for Investigative Reporting found that the system which sentences people to death by execution is costly, riddled with delays and racial disparities, and inconsistently applied. Since the reinstatement of capital punishment nearly 50 years ago, more than half of the people sentenced to death in Kentucky have had their sentences reversed, according to a study reviewed by KyCIR. Those who remain on death row wage lengthy and expensive battles in court, trying to stave off their execution or prove their innocence.
Meanwhile, the families of victims are also left in limbo — some feeling that the justice promised to them was never delivered. The topic of the death penalty in Kentucky received public attention last September, when a group of Republican state lawmakers proposed a sweeping plan for consideration during the 2024 legislative session to combat what they said is a violent crime epidemic plaguing the state. Among the many issues raised in their proposal, the death penalty or life in prison without parole would have been allowed for someone knowingly selling fentanyl that subsequently resulted in a fatal overdose. And prosecutors would have been required to seek the death penalty in cases when a law-enforcement officer was intentionally killed while performing his or her duties.
House Bill 5 addressing various criminal justice-related issues, including possible capital punishment for the deaths of fentanyl users and first responders, was introduced in the state House of Representatives on Jan. 9. More than half of the 100 House members have signed on as sponsors. The renewed attention to the death penalty as punishment for crimes in Kentucky comes as public support for the practice wanes. And some state lawmakers — opponents and supporters alike — say the end of the death penalty appears to be inevitable.
House Bill 38 to abolish the death penalty, and to replace it with life imprisonment without parole for inmates currently sentenced to death, was proposed in the state House of Representatives on Jan. 2. That bill has eight sponsors. Three House members have signed on to both bills. Republican State Sen. Julie Raque Adams of Louisville co-sponsored a bill during the 2023 legislative session to abolish the death penalty and replace it with life without parole. But the bill went nowhere. Raque Adams recently told KyCIR that she thinks life without parole is a “more devastating” sentence than execution. But she also is not optimistic that a death penalty abolition bill would be adopted during this session.
State Sen. Whitney Westerfield, a Republican from Fruit Hill in western Kentucky and chair of the senate judiciary committee, agreed with Raque Adams that any proposal to abolish the death penalty is unlikely to get much traction in this year’s legislative session. Westerfield said in an interview that he has no plans to file such a bill, but would support the abolition of capital punishment if it came to a vote. “I have some unsettled feelings about the state killing someone, even though they’ve been found guilty by a jury of their peers,” Westerfield said. “Life without parole seems a bit more acceptable to me.”
Republican State Sen. John Schickel, from Union in northern Kentucky, is a retired police officer and a death-penalty supporter. But he thinks ending capital punishment is just a matter of time. “It appears to me that that will happen,” Schickel told KyCIR. “I don’t think it’s a good thing. I think it’s a bad thing. But I think it’s reality.”
‘A long time’
Through the years, at least seven trial-court judges had been involved with White’s case. One judge lost track of the case for 14 months and did not address the issue that was pending before him until after the newspaper contacted him for the second time. That judge, Gary Payne of Fayette County, acknowledged to the newspaper then that 31 years was “a long time” for a case to go unresolved. After Payne retired in 2011, White’s case had no judge assigned to it for more than a year. Today, White has two pending legal challenges to his death sentence. Both — one in state court, the other in the U.S. 6th Circuit Court of Appeals — could take years to resolve. Either case could lead to White being removed from death row.
The state court case involves a 20-year-old legal claim by White that he is intellectually disabled and therefore ineligible by law for the death penalty. The federal court case alleges that White’s trial attorneys provided ineffective assistance during the penalty phase of his sentencing in March 1980. White also alleged during his trial that he was insane at the time of the murders. Not only has White served more time on death row than any other Kentucky inmate, his time there is exceeded by sentences for only about a dozen inmates facing execution nationwide.
In 2019, White’s current attorneys proposed to the state attorney general’s office that White’s pending litigation be resolved with a sentence of life without parole for 25 years, and also agreed to waive his parole eligibility until 2029, when White would be 71 years old. That proposed offer also contained two alternatives — keep White in prison until 2032, at which time he would be 74 years old; or life without the possibility of parole. As part of each offer, White agreed to withdraw all pending litigation and to not file any future litigation challenging his conviction and sentence. But the attorney general’s office rejected the proposals. An office spokesperson recently declined to discuss it with KyCIR.
The state refused to allow a KyCIR reporter to visit death row at the Kentucky State Penitentiary, and also declined to provide photographs of it. Instead, the Department of Corrections gave the following description of death row in an email response to questions. An agency spokesperson said the cells on death row — like all cells at the facility in western Kentucky — resemble small dormitory rooms, with a toilet, sink, bed and mattress with pillows, sheets and blankets. Each cell has a window and a front wall of bars. Each inmate gets their own cell and can take a shower each day. They have access to outside areas, games, tablets, televisions and books. They are provided three meals a day, have multiple pairs of shoes and regularly get clean clothes. One thing that differentiates death-row inmates from other inmates is their clothes — on death row, inmates wear red uniforms.
Citing White’s “intellectual deficits” and his limited ability “to communicate in a reasoned manner,” one of his attorneys, David Barron of the state Department of Public Advocacy, declined to make him available for an interview. Due to White’s intellectual disability, Barron said he doesn’t read much because he’s capable of doing so only at an elementary-school level. For now, Barron said, White passes the days exercising, following University of Kentucky basketball, and keeping in touch with his grandson, whose mother — White’s only child — died in an ATV accident in 2021.
Disparities, costs
Since the reinstatement of capital punishment in the United States in 1976, three people have been executed in Kentucky. Two of the three were voluntary, including Marco Allen Chapman, the last person to be put to death, in November 2008. Individuals sentenced to death in Kentucky are 14 times more likely to have their sentence reversed than to be executed, according to a 2022 study by Frank Baumgartner, a political science professor at the University of North Carolina. Baumgartner also found stark racial disparities in Kentucky death-penalty cases. His study concluded that cases with white victims are more than five times as likely to result in a death sentence as those with Black victims, and that crimes involving white female victims are 11 times as likely to bring about a death sentence as those with Black male victims.
When the killer is Black and the victim is a white female, the odds are more than 20 times greater for a death sentence than when both the killer and the victim are Black, the study found. “These extraordinary racial disparities call into question the equity of the entire system,” Baumgartner concluded. Capital punishment is also inconsistently applied across the state, he found. In 85 of the state’s 120 counties not a single person has been sentenced to death since capital punishment was reinstated nearly 50 years ago. More than three death sentences have been imposed in just two counties, according to Baumgartner’s study. Nineteen death sentences have been meted out in Jefferson County, and 10 in Fayette County. Baumgartner concluded that Kentucky’s use of capital punishment is deeply flawed, and “should ignite a conversation about what is the criminal justice value of a system that is so racially biased, ineffective, prone to error, and unreliable.”
Capital cases also can be extremely expensive to prosecute and defend. In July 2018, Damon Preston, head of the state Department of Public Advocacy, testified before a legislative committee that a recent four-week death penalty trial in Fayette County had involved eight full-time department employees at a total cost of about $80,000 for their pay and benefits. The verdict: one defendant was acquitted and the jury deadlocked on the fate of the other. In all, an estimated $440 million has been spent since 1976 on Kentucky death-penalty cases by prosecutors, defense attorneys and the courts — the equivalent of $146 million per execution, according to a 2020 analysis by six current and former public defenders, including Preston. “Kentucky spends an inordinate amount of money that it does not have, to implement a flawed and costly death penalty process,” the analysis concluded.
The analysis also noted that 93 recommendations stemming from a 2011 American Bar Association assessment of Kentucky’s death penalty “have not been fully and properly reviewed or acted upon by any branch of state government.” “This fact alone calls into question the legitimacy of continuing to seek the death penalty in statutorily eligible cases in the Commonwealth of Kentucky, let alone the imposition of capital punishment,” the 2020 analysis concluded. Asked who they think is responsible for the ABA’s recommendations not being “fully and properly reviewed or acted upon,” two authors of the 2020 analysis cited state legislators. “Unfortunately, trying to understand the death penalty and fine tune it to eliminate bias and prejudice is not on the agenda of any policy makers in the Commonwealth,” Ernie Lewis, who headed the state Department of Public Advocacy from 1996 until 2008, said in an email response. “Few legislators have made this a priority.”
And Ed Monahan, who succeeded Lewis as head of the department and served in that capacity until September 2017, said “legislators have a profound lack of understanding of the arbitrariness and capriciousness of Kentucky’s administration of the death penalty.” Monahan said the executive and judicial branches also bear some responsibility, because they “know about the serious deficiencies and yet they have repeatedly chosen not to implement remedies to ensure a fair and just process.”
The ultimate price
Public sentiment about the death penalty is mixed, according to a 2018 statewide poll of 625 registered Kentucky voters. Only 38% of the respondents thought the death penalty was the most appropriate penalty for aggravated murder cases, compared to 57% who preferred lengthy prison sentences for such cases. And 53% of the respondents said they would support replacing the death penalty with a sentence of life in prison once they learned of the “substantially higher” costs associated with capital prosecutions compared to life without the possibility of parole. Nationwide, abolition of the death penalty is becoming more commonplace. Twenty-three states and the District of Columbia, most recently Virginia in 2021, have eliminated capital punishment, according to the Death Penalty Information Center. In December 2022, Oregon Gov. Kate Brown resentenced all 17 death row inmates in that state to life without parole.
Kentucky’s Constitution gives the governor the sole authority to commute death sentences. When asked last January about proposed legislation to abolish the death penalty, Gov. Andy Beshear said he thought capital punishment is appropriate “in limited circumstances,” according to a story by Spectrum NEWS 1. “I believe that there are some crimes that are so horrific and some people that are so dangerous that (they) merit the existence of the death penalty,” the story quoted Beshear as saying. Beshear did not respond to requests from KyCIR to discuss his thoughts about the death penalty. Lewis, the former Department of Public Advocacy head and also a longtime death-penalty opponent, said: “It appears the only thing that will up the urgency level to bring about change would be the execution of a person who is proven to be innocent.” Barron, the DPA attorney and who has represented defendants in death-penalty cases for more than two decades, said that in his experience, “a large number of people who support the death penalty either turn to opposition once they learn details regarding it or believe it should be imposed more restrictively than it is.”
Following a murder trial conviction, the jury typically recommends whether to sentence the defendant to death or to levy some other penalty. The judge cannot impose the death penalty if the jury votes for a different sentence or is unable to agree on a sentence. But the judge can reject the jury’s death-penalty sentence and impose a different one. Former Jefferson Circuit Court Judge James Shake, who sentenced one defendant to death during his 24 years on the bench, told KyCIR that while he personally opposed the death penalty due to the time and expense involved, he considered it his duty to respect the jury’s decision. “I didn’t think it was my obligation to change the law, just because I didn’t agree with it as a general principle,” said Shake, who retired in 2017. “I had actually hoped to get through my judicial career without having to impose it. But it’s not my position to substitute my judgment for the judgment of a properly sworn jury.”
Fed up families
“It’s like the state of Kentucky has forgotten how heinously my brother and brother-in-law were murdered.” Baze “took two lives, his life needs to end. He’s had 29 years of living behind bars. Okay, that’s enough,” Lally said. “It’s now time for him to meet his maker. And I want to see his eyes on the gurney when he takes his last breath.” Lally said she went to the Kentucky State Penitentiary in November 2022 “to sit outside and see where the man that killed my brother and brother-in-law 32 years ago was still living and breathing, still having three meals, having his every whim taken care of.”
Asked how she would feel about Baze’s death sentence being converted to life without parole, Lally replied: “Totally opposed. Totally opposed. He shot my brother in the back of the head. So for anybody that thinks, ‘Oh, that’s okay. Just let him die in prison,’ well, they’re eating Froot Loops. They’re crazy. That’s a crazy idea. No way in hell are we going to be okay with that, with his sentence being converted.” Another staunch supporter of the death penalty is Mary Lou Moore Herald, whose three relatives were killed in their Breathitt County grocery store by Karu Gene White and his two accomplices. And like Lally, Herald is frustrated by the lengthy delay in concluding the case in which her family members were murdered.
“How would you feel if everybody in your family has gone and this murderer is still alive and prospering?” she said. Herald thinks White’s execution should have already happened. “It’s been a long process that has put our family through a lot of turmoil, a lot of hell.”
(This story is republished from Louisville Public Media’s Kentucky Center for Investigative Reporting.)
Source: thetimestribune.com, Janie Slaven, April 5, 2024
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
but by the punishments that the good have inflicted."
— Oscar Wilde
