A nationwide debate on the execution of mentally ill death row prisoners erupted across the country after a federal appeals court last week granted a last-minute stay of execution to convicted murderer and diagnosed schizophrenic Scott Panetti in Texas.
Could a similar situation happen in Kentucky? The answer is: It almost did—and still could, said Kentucky lawmakers and death penalty experts.
Kentucky law forbids the execution of prisoners with mental retardation, but in 2010 it took another last-minute stay of execution—this one from Franklin Circuit Judge Phillip Shepherd—to spare the life of Gregory L. Wilson, a death row inmate with a measured IQ of 62.
"In Kentucky right now, if a client has an IQ of roughly 70 or below and the defense says, 'My client is mentally disabled and suffers from retardation,' they have a hearing,” explained Father Pat Delahanty, a longtime advocate for the abolition of the death penalty in Kentucky.
The question is then left to the judge to determine if that’s the case—if it is, the death penalty is removed as a sentencing option, Delahanty said.
If Wilson’s IQ is well below the maximum, why is he still on death row? Because he waited too long to sue.
IQ scores are among several factors used to diagnose intellectual disability, though and a majority of clinicians agree that IQ scores for the intellectually disabled may range up to 75. For any convict in the low to mid 70s, the death penalty is still an option in Kentucky and Virginia—the only states still using the score as a legal barometer.
When Shepherd halted Wilson’s execution in 2010, he raised concerns about how the state handles intellectually disabled and mentally ill inmates, saying "It seems to me that this regulation could be followed to the letter and someone who is mentally retarded could still be executed."
How the Decision is Made
Delahanty said convicts who aren't intellectually disabled but have a severe mental illnesses—such as hallucinatory schizophrenia, dementia, or traumatic brain injury, for example—are not protected from execution in Kentucky, and they make up roughly 10 percent of all inmates.
Lawmakers have been cautioned in recent years that Kentucky execution laws may prove a liability to the state, including a 2011 study by the American Bar Association which urged the state to suspend all executions until its process is clarified.
In more than 500 pages, the study illuminates a variety of blind spots in the state’s execution process. It finds that judges, attorneys and law enforcement officers widely lack training on dealing with mentally ill defendants. The study also calls on the courts to ensure mental health professionals who testify on behalf of defendants are qualified, pointing out instances of incompetency.
In one instance, a federal court “reversed an inmate’s death sentence... based on the defense’s repeated use of a mental health expert whose testimony was ‘bizarre and eccentric,’” the report said. “It was subsequently determined that the testifying expert… had actually only finished two years of college as an English major.”
Kentucky is also one of the few states that permit judges to rule a defendant “Guilty But Mentally Ill.” While there haven’t been any executions of those convicts, there’s nothing on the books preventing it.
Mark Coppenger of the Southern Baptist Theological Seminary has been outspoken in his support of the death penalty in Kentucky. He regularly testifies before panels of Kentucky lawmakers.
"I would even say that if someone is so amoral that they can't even frame a sense of evil of the thing, I would not let them off on that,” said Coppenger. “I would say: so much the more. If someone is just pathologically indifferent to morals, that … is not so much insanity as it's just sheer evil."
Coppenger said mentally ill inmates on death row should bear the burden of proof, and that the standards amounting to proof of mental disability should be more rigorous.
Burden of Proof
Proving intellectual disability became a problem for Wilson when a Kenton Circuit judge denied his request for mental evaluation. It could also be a problem for other inmates in the future who attempt to prove their mental condition, as the Kentucky Department of Corrections currently does not have a protocol requiring them to determine whether an inmate is intellectually disabled or mentally ill prior to execution.
The KDC is required to administer a pregnancy test before execution, but not an IQ test.
When inmates are able to prove their disability,prosecutors often accuse inmates of intentionally fudging the results, the American Bar Association said, citing six separate instances in Kentucky.
“Mentally retarded offenders may be sentenced to death when courts deny the existence of mental retardation without an IQ test score of 70 or below,” reads the report. “And then discount or reject such IQ scores when they are provided.”
State Rep. Denver Butler, a Louisville Democrat, is a former Louisville Metro Police sergeant who used to work homicide cases His work on cold-case files led to the exoneration of two inmates, but he said he still sees a place for the death penalty in Kentucky.
“But what I think we should do and what I try to get across is that we should put a stay on it until we can have a better process,” he said.
“I think the process really needs to be looked at. Who are we we trying to apply the death penalty to? What are the standards? And make sure all of those are being vetted appropriately."
Several bills to protect mentally ill inmates from execution have been offered in the Kentucky General Assembly in recent years, although no legislation has yet passed.
Suspended
Wilson’s case led to more than his own delayed death: Judge Shepherd suspended all executions in Kentucky after realizing the inability of the state to determine an inmate’s intellectual disability. He then ordered the state to use a single-drug method for lethal injection, a follow-up on the Kentucky Supreme Court ruling which deemed the state's three-drug lethal injection cocktail cruel and unusual.
Since the drug’s manufacturer stopped producing the single-drug alternative and Kentucky handed over its final three doses to the DEA, the state has been without the legal means to execute inmates.
But attempts to resume executions have already begun. In 2013, Attorney General Jack Conway filed notice with the Franklin Circuit Court that Kentucky was ready to get back to executing prisoners. He proposed the use of a single-drug solution of sodium thiopental or pentobarbital (whichever is on hand).
Since both of those are in short supply nationwide, Conway offered that executions could be conducted via a two-drug combination of midazolam and hydromorphone—the same combination administered in January to an Ohio inmate who gasped and snorted for 26 minutes before finally dying.
In July, Judge Shepherd put the brakes on Conway’s request to resume executions with the two-drug mix, then eliminated the method altogether in mid-November, obligating the state to rework its execution methods entirely.
It’s not clear what options Kentucky will explore next, though Gov. Bill Haslan in May made Tennessee the first state to bring back the electric chair, authorizing its use in the event the state couldn’t get the lethal injection drugs.
‘It’s Kind of a Catch-22’
State Sen. Gerald Neal said these hair-splitting questions on the specifics of state executions only serve to illustrate a broader point: Because the justice system is imperfect, the state should abolish the death penalty.
“Once you start defending or setting up a system for handling mentally ill defendants, you actually begin to undermine the larger argument of whether we should have a death penalty,” said Neal. “But if you don’t deal with that argument, are you not violating or withholding on your moral obligation to address whatever current problems you can? It’s kind of a catch 22.”
Neal noted that the American Law Institute, the organization responsible for clarifying what a constitutionally sound execution process would look like over the last 50 years, pronounced their work a failure in 2010.
“The fundamental question is: Why do we have a death penalty in a civilized society?” said Neal. “Is it compatible?”
Neal, a Louisville Democrat, has filed a bill for consideration in 2015 which would create a task force to study the costs of the death penalty. It’d be the first study of its kind for Kentucky.
The bill will start its trek through the state legislature when the new session begins on Jan. 6.
