The differences in capital prosecutions between jurisdictions generally gets labeled as geographical disparity, but most often it's the result of prosecutorial discretion; the different standards that prosecutors use in charging decisions. Some are simply more aggressive in seeking death, or in seeking longer sentences. Some states use a proportionality review to help ensure consistency.
Doug Berman has picked up a Kentucky story from the News-Enterprise of Fort Knox, "Death penalty could hinge on local case."
The most recent possible challenge to Kentucky’s death penalty came in the form of a motion in Hardin Circuit Court earlier this month to have Kentucky’s death penalty ruled unconstitutional.
Attorney Vince Yustas, who represents convicted murderer Michael St. Clair, said his argument against the death penalty never has been made in Kentucky. He claims commonwealth’s attorneys across the state have “unbridled discretion” when deciding whether to pursue the death penalty.
“Whether or not to seek the death penalty rests entirely in the hands of individual commonwealth’s attorneys,” Yustas said in a memorandum filed Aug. 20 in Hardin Circuit Court.
The potential challenge is the third in recent months.
Capital punishment cases can create excessive workloads for Kentucky prosecutors, judges and defense attorneys.
And:
In St. Clair’s case, Yustas argues that while guidelines are in place to determine whether a case qualifies for the death penalty, prosecutors have the final say of whether to pursue capital punishment.
Such disparity in the system “results in arbitrary and capricious application of the death penalty,” Yustas said. “A defendant is faced with the luck of geography.” Yustas requested a session to determine if a hearing should be held so Senior Circuit Judge Janet Coleman could consider the motion.
The geographic disparity index is here.
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