Lincoln Caplan posts, "‘Clear Errors’ About the Death Penalty," at the New York Times Taking Note blog.
When the United States Supreme Court reinstated capital punishment in 1976, it said that the penalty could never be mandatory. Even if a jury finds a defendant guilty of a brutal murder, it still must weigh evidence about how to sentence him. Aggravating evidence concerns why a jury should impose a death sentence. Mitigating, or moderating, evidence concerns why it should not. That is the law of the land.
But it is not the law of the Kentucky Supreme Court. The U.S. Supreme Court decided this week not to review a ruling by that state court which upheld the 1986 death sentence of Benny Lee Hodge. Justice Sonia Sotomayor wrote that because “this is a capital case, and clear errors of law such as those here should be redressed,” she dissented from her court’s decision and laid out the Kentucky court’s errors.
In this case, Justice Sotomayor made clear, extensive, uncontested mitigating evidence was not allowed to mitigate. And the “brutal nature” of the murder and the attempted murder made the death penalty all but mandatory. Both errors are fundamental under U.S. Supreme Court rulings. They make the Kentucky Supreme Court approach to the death penalty unconstitutional in the case.
The seriousness of these errors is all too familiar in Kentucky. Death sentences there have been overturned in two out of every three cases since 1976. A year ago, the American Bar Association published a 521-page report about the enormous problems of the state’s capital punishment system. The errors in the Hodge case add to the far-reaching basis for a unanimous recommendation of the Kentucky Human Rights Commission this year: it is time for the state to abolish the death penalty.
Justice Sotomayor's dissent is available in Adobe .pdf format.
Earlier coverage from Kentucky begins at the link.