The Advocate, Vol. 20, No. 4 (July 1998)

Racial Justice Act Becomes Law:
Not Soft on Crime, But Strong on Justice

Senate Bill Committee Substitute 171 sponsored by Senator Gerald Neal of Louisville passed the Senate 22-12 on Thursday, February 5, 1998 after two hours of vigorous debate. The identical House Bill No. 543 sponsored by Representative Jesse Crenshaw of Lexington was introduced February 9, 1998 in the House. After a vigorous hour long debate in the House, SB 171 passed. The Act fixes one of the glaring deficits in Kentucky's capital scheme identified by the American Bar Association's Call for a Moratorium. The new legislation creates a pretrial process to have a judge determine whether race is a part of a capital prosecution.

ABA Calls for Moratorium. The ABA House of Delegates in a February 3, 1997 Resolution (No. 107) called for a moratorium on executions in this country until jurisdictions implement policies to insure that death penalty cases are administered fairly, impartially and in accordance with due process to minimize the risk that innocent persons may be executed. Far from being administered fairly and reliably, the death penalty in this country, according to the ABA, is "instead a haphazard maze of unfair practices with no internal consistency." Kentucky mirrors that national reality. The ABA resolution establishes a legal position on fairness in the application of the law; it is not a policy statement for or against the penalty. The ABA's call for a suspension of executions focuses on: 1) incompetency of counsel; 2) racial bias; 3) mentally retarded persons; 4) persons under 18 years of age; and, 5) preserving state & federal post-conviction review. "The ABAís Moratorium Call," Public Advocate Lewis said, "acts as a moral statement condemning the Kentucky death penalty until change is made."

Discrimination Exists in Kentucky Capital Sentencing on the Basis of the Race of Either the Victim or Defendant. There are 7 African-Americans on Kentucky's death row of 33. This represents 21% of the death row population, compared with Kentucky's non-white population of 7.7%. All the victims of these 7 death row inmates were white. A study commissioned by the 1992 Kentucky General Assembly of all homicides between 1976 and 1991, Keil & Vito, Race and the Death Penalty in Kentucky Murder Trials, 1976-1991: A Study of Racial Bias as a Factor in Capital Sentencing (Sept. 1993), demonstrates race is a factor in Kentucky capital sentencing. Defendants were more likely to be sentenced to death if their victims were white, most especially if the defendant was black. The Racial Justice Act provides a method to eliminate race from the death process by allowing a judge to consider the relevant statistical and other evidence of discrimination before trial.

Racism is the opposite of treating each individual as unique, with punishment and treatment particularized to who he/she is or what he/she has done. Rather, racism treats persons with the same color of skin the same regardless of who they are or what they have done. There is evidence that prosecutors/judges/juries have historically discriminated against black defendants who have killed white victims. The Racial Justice Act is a common sense process to eliminate race from the calculus, freeing all of the parties to treatment each defendant in a particular way without the broad taint of generalized racism. During the Senate floor debate, Sen. Gerald Neal of Louisville said SB 171 was simply a method of insuring racism did not play a role in death sentences. He observed that under the Act, defendants bore a high threshold to prove race was a factor. Sen. Charlie Borders of Russell said, "This is a vote on whether weíre soft on crime." Sen. Neal championed the billís intent by stating, "Iím not soft on crime. Iím strong on justice." Sen. Neal said some senators were using "scare tactics" to attack the bill. "They donít want the status quo disturbed."

In the extended Howe debate on SB 171, Rep. Jesse Crenshaw led the fight for passage. He introduced retired circuit Judge Benjamin Shobe in the House Gallery and read from his 1996 letter (reaffirmed February 1998) to Rep. Mike Bowling, chair of the House Judiciary Committee:

I address you as an African-American former Circuit Judge, whose legal experience in Kentucky exceeds fifty years. During this time, I presided in cases in which the death penalty was sought and obtained both pre-Furman and after Gregg.

My concern is SB 132/SCS [now SB 171] which proposes to at least increase the perception of fairness in the death penalty procedures of Kentucky. Because the death penalty is our societyís ultimate punishment, citizens realize it application must be supremely fair and, therefore, expect that racial bias play no role in its use. SB 132/SCS [now SB 171] proposes only to insure that the death penalty not be sought on the basis of race. This seems to me to be the least we can do to help erase the perception of minorities that they do not get a fair deal before the courts.

I have received the proposed legislation, with an eye toward considering the objections which have been raised by prosecutors. One of their objections is that this bill will erase the death penalty in Kentucky. This is entirely untrue. If restrictions upon the issuance of capital punishment are to be looked upon as matters of abolition, then we would no longer need present requirements such as consideration of mitigating circumstances, juries that meet the Batson standard, and proportionality reviews by the Kentucky Supreme Court. Are we to believe and can we tell our constituents that death penalty procedures in this State are so infected by race bias that no capital case could ever be tried in which the death penalty is sought? Of course, not.

The objection that such procedures required by the bill are onerous and costly has very little merit. After all, judicial decisions are made frequently based upon statistical information, and properly so. It has been my experience that those charged with the responsibility of presenting such information have the greater responsibility. Therefore, the burden to present evidence of racial bias is upon the accused. May we say to them that any information which would tend to show that they were accused and convicted because of race should not be a part of the proceeding? Of course, not.

With the experience this nation underwent as a result of the Miranda decision, policemen have become more professional. Should prosecutors object to having their actions scrutinized to determine whether they are free from untoward motivations? Of course, not. As a former prosecutor, I recognize the obligation of this officer to be eminently fair. This legislation requires no more.

I am grateful for your support of the pending measure and assure you that the citizens of Kentucky will be relieved when passage of this bill guarantees greater racial justice and harmony in our Commonwealth.

SB 171 passed the House 70-23 on March 30, 1998 after three amendments were defeated.

Senator Neal said that the vote "is a strong expression by the legislators that they support concepts of racial justice."

The new law follows:

AN ACT relating to the fair and reliable imposition of capital sentences.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:


(1) No person shall be subject to or given a sentence of death that was sought on the basis of race.

(2) A finding that race was the basis of the decision to seek a death sentence may be established if the court finds that race was a significant factor in decisions to seek the sentence of death in the Commonwealth at the time the death sentence was sought.

(3) Evidence relevant to establish a finding that race was the basis of the decision to seek a death sentence may include statistical evidence or other evidence, or both, that death sentences were sought significantly more frequently:

(a) Upon persons of one race than upon persons of another race; or
(b) As punishment for capital offenses against persons of one race than as punishment for capital offenses against persons of another race.
(4) The defendant shall state with particularity how the evidence supports a claim that racial considerations played a significant part in the decision to seek a death sentence in his or her case. The claim shall be raised by the defendant at the pre-trial conference. The court shall schedule a hearing on the claim and shall prescribe a time for the submission of evidence by both parties. If the court finds that race was the basis of the decision to seek the death sentence, the court shall order that a death sentence shall not be sought.

(5) The defendant has the burden of proving by clear and convincing evidence that race was the basis of the decision to seek the death penalty. The Commonwealth may offer evidence in rebuttal of the claims or evidence of the defendant.


Section 1 of this Act shall not apply to sentences imposed prior to the effective date of this Act.


Sections 1 to 3 of this Act shall be cited as the Kentucky Racial Justice Act.

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