Roberta M. Harding
“All over the United States there is a
growing sentiment to do away with
capital punishment . . . . If their mood
is reflected in the letters they write me
daily, a large segment of the Kentucky people
want capital punishment abolished, too.”
-Former Kentucky Governor Edward
Breathitt, May 5, 1965
The first officially recorded execution in Kentucky was carried out in 1780, the year after Kentucky County became the District of Kentucky of the State of Virginia, when a man was hung for murder in Breckinridge County. The next four executions also were carried out during Kentucky’s tenure as the District of Kentucky. These condemned and their predecessor had an attribute in common that is extremely germane to how the death penalty has been administered in Kentucky: their gender, which is male. A prodigious gender bias, which disfavors male capital offenders, is evident in Kentucky’s historic and contemporary death penalty practice. Since the first execution in 1780and the last in 2008, the Commonwealth has executed 427 people. 415 males and 12 females. The latter account for a paltry 3% of those executed by the Commonwealth, while men account for a whopping 97%! Amazingly the last time Kentucky executed a female capital offender was in the 19th century; while male capital offenders were executed for the remainder of the 19th century and in the 20th and 21st centuries. Contemporary capital sentencing statistics aptly convey how deeply entrenched this bias is in the operation of the death penalty. Since 1972, when the United States Supreme Court handed down its seminal decision in Furman v. Georgia, the Commonwealth has sentenced eighty-two people to death, 96% were male and 4% were female. Incredibly, these percentages are almost identical to those based on more than two centuries of execution data. The existence of this bias, however, is not unique to Kentucky; nor has it gone unacknowledged.
The first five people executed also represent another inveterate basis for discrimination found in Kentucky’s historic and modern use of capital punishment: race. Baysinger, the first person to be executed, was white and the quartet following him were African-American. Thus, 80% of those executed when Kentucky was still a District were of color. This specific bias, as well as its tenacity and pervasiveness, are easily understood when the quartet’s status is considered: All were slaves. The institution of chattel slavery in Kentucky greatly affected the “racialization” of the administration of capital punishment in the Commonwealth. “Slavery existed in Kentucky from its first days of settlement” and was an important issue at the Convention to draft Kentucky’s First Constitution. Kentucky’s strong pro-slavery sentiment was embodied in Article IX of the First Constitution, which prohibited “the passage of legislation which tended to abolish slavery in the state.” The Constitutions produced at the Second and Third Constitutional Conventions, held respectively in 1799 and 1849, reinforced this institution of inequality by codifying assurances to protect slavery from being abolished. “The prominent place given the institution [of slavery] in the first three constitutions” led noted Kentucky historian Thomas Clark to describe Kentucky’s “hold on slavery” as “tenacious,” but strangely, “[w]hen the Civil War began, Kentucky was one of four slave states that remained in the Union.” As the War progressed, however, more and more Kentuckians became outraged by what they perceived to be a federal government that was increasingly taking on the abolitionists’ cause: “[t]hey were fighting for the preservation of the Union, not the destruction of slavery.” The mere suggestion of emancipation sent some to the verge of apoplexy. This fervor is illustrated by one newspaper editor’s impassioned comments:
[I]f the slaves were freed 200,000 soldiers would be
required ‘to retain Kentucky in the Union, and then
the soldiers would be compelled to aid in exterminating
the black race.’ If the slaves were freed, he asserted,
‘there is but one thing to be done with them; they must
be wiped out-totally obliterated. It must be a merciless,
savage extermination . . . . The two races . . . cannot
exist in the same country, unless the black race is in slavery.
Sentiments of this tenor were officially validated when the legislature passed a law permitting the enslavement of any African American entering Kentucky who stated they owed their freedom to the Emancipation Proclamation. Kentuckians’ anger escalated when President Lincoln decided to recruit African Americans to fight in the war because “it challenged the basic assumption that blacks were inherently inferior to whites.” While Kentucky did not end up seceding, the legislature did refuse to ratify the Thirteenth Amendment. Even after the Secretary of State announced the Amendment had been ratified, the Kentucky legislature “refused to change its stance” and again voted down ratifying the Amendment. By all indications, racial inequality had become indelibly ingrained in Kentucky’s social fabric, which adversely affected the workings of the state’s criminal justice system; especially when deciding who should live and who should die.
Prescription pain pill abuse and misuse is a substantial problem in Kentucky. In the Commonwealth, over one thousand deaths per year are attributable to drug overdoses. This figure is the sixth highest in the country and represents more deaths than those caused by automobile accidents. Additionally, Kentucky ranks as the fourth most medicated state in the United States, though it ranks twenty-sixth for population. Governor Steve Beshear has acknowledged the problem, “We have an epidemic in Kentucky that we cannot ignore….We are losing lives. We are losing families, and we’ve got to aggressively attack that problem.”
Much of the state’s drug problem was the result of pain pill mills, alleged pain management clinics where patients were prescribed controlled substance (narcotic) prescription medication following either a cursory examination or no examination by the physician on site. The phrase “pill mill” is nomenclature used by local and state police investigators most often to describe a physician or clinic, and occasionally a pharmacy, that is prescribing or dispensing controlled substance narcotics inappropriately or for non-medical reasons. However, the Governor’s call to arms was not solely aimed at these so-called clinics. Governor Beshear sought comprehensive legislation that would address all of the concerns regarding the prescribing and use of controlled substances including properly organizing and running pain management facilities, properly training physicians prescribing these dangerous drugs, balancing the interests to provide a watchful but not overly intrusive eye on the patient consumer of these drugs, and providing authority for the proper administrative boards and the necessary police powers to act in cases of prescribing regulations. In a demonstration of the importance of this issue, Governor Beshear called a special session of the Kentucky Legislature to provide for a solution.