On a Path to Autonomy: Death With Dignity Paves the Way

Article | 104 KY. L. J. ONLINE 35 | November 12, 2015

Joseph J. Sherman [1]

Introduction

In early October 2014, Brittany Maynard made headlines when she announced her intention to end her own life in response to her cancer diagnosis.[2] Maynard was a California woman who was diagnosed with terminal glioblastoma,[3] which is a type of highly malignant brain tumor.[4] But because California prohibits physician-assisted death (“PAD”), she and her family made the difficult decision to move to Oregon, where she could legally seek such medical care.[5] On November 1, 2014, Maynard carried out her plan to end her own life by taking a lethal dose of barbiturates prescribed by her doctor.[6] Her choice to end her own life, rather than to let her illness take its natural course, has generated a great deal of controversy.[7] Is it beneficent to promote an early death for the terminally ill to prevent pain and suffering? Do we overextend our role in medicine when death becomes a prescription? What implications does PAD have on the future of end-of-life care?This controversy may be partially fueled by a misunderstanding of the legal framework surrounding PAD. “Physician-assisted [death] occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act . . . .”[8] This definition is distinct from the refusal of life-saving medical care, which the United States Supreme Court has recognized as a liberty interest protected by the Constitution.[9] The Court has declined to recognize suicide as a liberty interest, holding state bans on PAD to be constitutional as long as they neither infringe on citizens’ fundamental rights nor involve suspect classifications under the Equal Protection Clause of the Fourteenth Amendment.[10]Jurisprudence around the issue of PAD has left the states to decide for themselves whether to legalize the practice. However, many people, even medical experts, do not have a clear enough grasp of jurisprudence on this subject to make an informed argument in favor of or against legalization of PAD. This note elucidates the major jurisprudence surrounding the right to refuse medical treatment, physician-assisted death, and the Oregon Death With Dignity Act. First, it will provide background on Supreme Court rulings on end-of-life issues, noting the contrived distinction between the Court’s understanding of refusal of medical treatment and its understanding of PAD. Second, it will discuss the different paths some states have taken to legalize PAD and objections others have had to its application. Third, it will analyze annually collected data on the Oregon Death With Dignity Act and demonstrate that both the Supreme Court’s analysis and other popular criticisms of PAD are misguided. Finally, this note will conclude by suggesting ways the states could encourage development in this area of the law.

I. Supreme Court Foundation: the Right to Refuse Medical Treatment and Physician-Assisted Death

There is a significant difference between the Supreme Court’s discussion of the right to refuse medical treatment and its discussion of PAD. Broadly speaking, in the case of the right to refuse medical treatment, the patient is allowed to die of whatever disease from which they suffer; medicine is not the cause of death. However, in the case of PAD, the medicine is actually the cause of death. In grappling with the distinction the Court draws, it will become clear that the distinction lacks coherence.

A. SCOTUS and the Right to Refuse Medical Treatment

The Supreme Court began addressing the right to refuse medical treatment in 1905 when it decided Jacobson v. Massachusetts.[11] In that case, a man challenged a Cambridge ordinance that mandated vaccination against smallpox in response to the growing threat of epidemic.[12] He argued that the ordinance violated his Fourteenth Amendment liberty interest.[13] The Supreme Court held that the ordinance fell within the state’s police power to protect public health.[14]The most significant decision on the right to refuse medical treatment came in 1990 in Cruzan v. Director, Missouri Department of Health.[15] The case involved a young woman, Nancy Cruzan, whose brain was without oxygen for twelve to fourteen minutes while she waited for paramedics after an automobile accident.[16] She entered a persistent vegetative state, and it soon became clear that she would never regain full mental capacity.[17] Cruzan’s family sought to have the feeding and hydration procedures terminated, but hospital employees would not honor their request without a court order.[18] The trial court granted their request on the basis that Cruzan had a fundamental right to refuse the withdrawal of “death prolonging procedures.”[19] However, the Missouri Attorney General appealed the decision, and the Missouri Supreme Court reversed the trial court decision, denying the family’s request.[20] The court required Cruzan’s family to show by “clear and convincing evidence” that removal of feeding and hydration procedures would have been consistent with Cruzan’s wishes.[21] On appeal to the U.S. Supreme Court, the issue was whether the Constitution forbade Missouri from imposing the “clear and convincing evidence” standard.[22] Because Cruzan was an incompetent patient,[23] the Court was comfortable affirming the Missouri Supreme Court’s requirement of clear and convincing evidence that Nancy Cruzan would have wished to cease medical treatment.[24] A living will or even testimony as to conversations the patient has had about end-of-life care can suffice to establish clear and convincing evidence.[25] This requirement is a way of ensuring individual autonomy, an aspect of respect for persons embodied in the set of medical standards known as the Belmont Report.[26]Ironically, the notion of autonomy undergirding the Court’s ultimate position on the right to refuse medical treatment is undermined in states that do not allow a path for some patients to seek physician-assisted death.[27] This result will be explored in Part III.

B. Physician-Assisted Death

Since Cruzan, the Supreme Court has had the chance to hear cases on PAD. Recall that the American Medical Association said “[p]hysician-assisted [death] occurs when a physician facilitates a patient’s death by providing the necessary means and/or information to enable the patient to perform the life-ending act . . . .”[28] This concept is slightly different from the issue in Cruzan, because it involves actually providing the patient with the substance that causes death, rather than removing medical treatment and allowing the patient to die naturally.[29]In Washington v. Glucksberg, the Supreme Court addressed a general Washington statute that prohibited anyone from “knowingly caus[ing] or aid[ing] another person to attempt suicide.”[30] The statute also had the effect of preventing physicians from assisting three terminally ill patients in ending their lives.[31] The patients and physicians were challenging the statute on the grounds that it violated the Due Process Clause of the Fourteenth Amendment.[32] However, the Supreme Court held that the statute did not violate the Constitution.[33] The case was inextricably tied to suicide, and although the Court acknowledged that it assumed a right of competent patients to refuse medical treatment, it was uncomfortable with the idea of granting constitutional protection to suicide under any circumstance.[34] Chief Justice Rehnquist articulated several state interests in opposition to a policy recognizing a right to suicide:

These interests include . . . preserving human life; preventing the serious public-health problem of suicide, especially among [vulnerable populations]; protecting the medical profession’s integrity and ethics and maintaining physicians’ role as their patients’ healers; protecting [vulnerable populations] from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide toward voluntary and perhaps even involuntary euthanasia.[35]

However, this decision does not mean that PAD is unconstitutional. By refusing to strike down Washington’s ban on this practice, this decision recognizes suicide as a public health concern but provides states with the discretion to determine how to address PAD.[36]In Vacco v. Quill, the Supreme Court addressed a New York statute that made it illegal to aid a person in committing suicide or attempting to commit suicide.[37] A group of patients challenged the statute on the grounds that it violated the Equal Protection Clause of the Fourteenth Amendment.[38] They argued that the statute banning assisted suicide had the effect of classifying people into two groups with unequal protection under the law.[39] The Second Circuit found that patients who were attached to life support machines had the option to refuse additional medical treatment to end their lives, while patients who were not attached to life support machines lacked the option to end their lives.[40] The Supreme Court ruled that the classification they described was not suspect, and that it deserved rational basis review.[41] Applying that standard, the Court held that there was a legitimate interest in distinguishing between suicide and refusal of medical treatment.[42] That distinction was based on the causal factor: does the patient die from the disease or the medicine?[43] This decision protects the integrity of the medical profession, one of the state interests mentioned in Glucksberg as well.[44]In upholding two state bans on PAD, the Supreme Court did not decide that the practice was unconstitutional. It merely left the question open for states to decide for themselves whether to ban PAD or to legalize it. Now that the Supreme Court has made these distinctions, states must ask themselves where to go from here.

II. Different Paths to the Same Destination: Legalizing PAD

A. States That Have Legalized PAD

There are two states that legalized PAD through voter initiatives. In 1994, Oregon voters passed an initiative, the Oregon Death With Dignity Act (“ODWDA”), making it the first state in the United States to legalize PAD.[45] In 2008, Washington became the second state to endorse PAD by voter initiative.[46] The ODWDA has a number of safeguards in place to protect against abuse. Those who use the law must be at least eighteen years old;[47] they must be terminally ill, which means they have less than six months to live;[48] they must be capable of communication;[49] and they must not be suffering from any psychiatric disorder, including depression.[50] In addition, they must meet residency requirements.[51] Notably, they must also be able to administer and swallow the lethal medication themselves.[52] The physician is not permitted to administer the medication.[53] At the time of Brittany Maynard’s decision, only one state had legalized PAD by legislative act: in 2013, the Vermont legislature passed a bill to protect patient choices at the end of life.[54]In addition, two states have legalized PAD by court ruling. In the 2009 case of Baxter v. Montana, the Montana Supreme Court heard the case of a truck driver with leukemia who wanted a prescription for medication that would end his life.[55] Montana’s homicide statute forbade “knowingly caus[ing] the death of another human being,” and there was concern that the physician would be implicated for knowing the patient would use the medication for the purpose of ending his life.[56] However, Montana also has a consent statute on the books that allows the use of a consent defense if the victim consented to whatever the charged offense may be.[57] The court ruled that the consent statute should apply rather than permitting an exception to the consent statute on the basis that PAD ran afoul of public policy concerns.[58] Montana’s road to legalizing PAD was unique; not every state could arrive there in the same manner.Finally, a New Mexico state court recently issued an injunction preventing the prosecution of physicians who facilitate the end of life in competent, terminally ill patients.[59] The court based its decision on a state constitutional provision guaranteeing its citizens the rights of “enjoying . . . life and liberty . . . and of seeking and obtaining safety and happiness.”[60] The court “[could not] envision a right more fundamental, more private or more integral to the liberty, safety and happiness of . . . New Mexican[s] than the right of a competent, terminally ill patient to choose aid in dying.”[61] After declaring aid in dying a fundamental right under the state constitution, the court subjected the statutory ban on assisted suicide to strict scrutiny, ultimately striking it down.[62]

B. SCOTUS Inadvertently Provides a Shield Against Popular Criticisms

Shortly after the Glucksberg and Vacco cases, and after the passage of the ODWDA, a flurry of law review articles were written criticizing autonomy as a justification for allowing physicians to assist the terminally ill in dying.[63] In essence, they argued (1) that Americans were so invested in the value of individual autonomy that no state could ever hope to regulate PAD,[64] (2) that physicians and family members would coerce the vulnerable populations into availing themselves of Death With Dignity laws,[65] and (3) that those vulnerable populations would disproportionately avail themselves of Death With Dignity laws because of inadequate medical care, in addition to many other pressures.[66]The American Medical Association expressly disapproves of PAD, arguing that it is “fundamentally incompatible with the physician’s role as healer . . . .”[67] But the physician’s role as a healer is ethically complex. The basic ethical principles of respect for persons,[68] beneficence,[69] and justice[70] articulated in the Belmont Report are not blackletter legal rules, but abstract concepts that bend and conflict with one another. Some medical professionals argue that the Death With Dignity movement is a “slippery slope,” pointing to other developed nations where they say the movement has gone awry.[71] In Holland and Belgium, for example, certain organizations apparently provide euthanasia to patients with clinical depression and no terminal physical illness.[72]It is erroneous to suggest that outright euthanasia programs could exist in the legal framework of the United States. The Supreme Court has time and again recognized the interest of states in preserving human life.[73] When weighing a citizen’s liberty interests, courts are also likely to recognize a state’s “legitimate interest[] in . . . protecting vulnerable persons.”[74] These government interests can only be overcome when there is a terminal illness and medical care is futile. The United States has only been willing to allow PAD in cases where death is already imminent, and that reality is unlikely to change soon. Fears of a slippery slope associated with legalizing PAD may be keeping states from joining the company of Oregon, Washington, and Vermont. Americans sometimes have extremely negative reactions to depression-related suicide.[75] The prospect of a state law unintentionally leading to depression-related PAD might sound like playing with political fire, but those fears are unfounded.

III. Experimenting with State Policies

A. Can Refusal of Treatment and PAD Be Addressed at the Federal Level?

Amici curiae in the Glucksberg and Vacco cases argued fervently against the Supreme Court’s ultimate decision. A plethora of arguments was given. One such argument was that terminally ill patients denied the choice of physician-assisted dying may be forced to endure horrific pain and suffering and loss of dignity.[76] Another argument was that terminally ill patients denied the option of physician-assisted dying are sometimes forced to experience a violent, lonely, at times gruesome death.[77] This was the basic situation facing Brittany Maynard after her diagnosis with terminal glioblastoma. She faced painful treatments that would have destroyed her quality of life.[78] Since she was young and healthy, she also faced the prospect that her body would linger on while her glioblastoma destroyed her mind, and her family would have to watch that happen.[79] Amici for respondents in Glucksberg and Vacco also argued that terminally ill patients denied the option of physician-assisted dying may be forced to rely on family members to assist in hastening death.[80] In addition, amici were concerned that terminally ill patients denied the option of physician-assisted dying sometimes fail in their attempts to hasten death, with tragic results.[81] Maynard’s family found an alternative, though not painless, solution. To show respect for Maynard’s autonomy, they uprooted themselves from their California home and navigated an unfamiliar state legal system to secure the care Maynard needed, all the while grappling with Maynard’s prognosis.[82]Amici also argued that the distinction between refusal of medical treatment and PAD was without meaning and irrational.[83] They pointed to the Second Circuit’s reasoning on the matter:

Withdrawal of life support requires physicians or those acting at their direction physically to remove equipment and, often, to administer palliative drugs which may themselves contribute to death. The ending of life by these means is nothing more nor less than assisted suicide. It simply cannot be said that those mentally competent, terminally-ill persons who seek to hasten death but whose treatment does not include life support are treated equally.[84]

In this passage, Judge Calabresi emphasizes the deliberate actions a physician must take in order to carry out a patient’s wishes to remove life-sustaining medical treatment. At best, the argument that removal of treatment allows a patient’s condition to cause death, and thus, that the physician has nothing to do with the patient’s death, is very weak. Indeed, the Supreme Court proposes that a physician is not acting to bring about the death of the patient in the case of refusal of life-saving treatment, and that only the patient’s condition actually causes death. “[D]eath which occurs after the removal of life sustaining systems is from natural causes . . . .”[85] But is a causation-based distinction between these two doctrines a good distinction to make? Are there other ways to conceive of the distinction? If so, do we have enough information to do it?The Supreme Court’s distinction between these two doctrines is based on causation. It places importance on the fact that refusal of medical treatment places cause of death by the patient’s disease, but PAD makes the physician’s act the cause of death.[86] However, the Court could have chosen to place larger emphasis on the issue of certainty. Based on the annual report published by the Oregon Public Health Division, it appears that, while death by disease is certain to occur when terminal patients on life support choose to remove life support, death by medication is not certain to occur when doctors prescribe lethal medication to terminal patients.[87]It remains unclear exactly what the Supreme Court would do with PAD jurisprudence if it abandoned the distinction between PAD and the right to refuse medical treatment. Indeed, doing away with the distinction might actually prove unfavorable to PAD advocates. Recall what Judge Calabresi said about the two practices: “[t]he ending of life by these means is nothing more nor less than assisted suicide.”[88] If the Supreme Court conceived of both practices as suicide, its prior precedents suggest that it would find no constitutionally protected interest even in the right to refuse medical treatment. However, that would only be true if the Supreme Court also continued to use a rather broad conception of “suicide” as well.A Gallup poll indicates that Americans’ conception of PAD changes drastically depending on the language used to discuss it.[89] When described as “[a]ssist[ing] the patient to commit suicide,” only 51% of Americans think it should be allowed, and 45% of Americans think it should not be allowed.[90] However, when described as “[e]nd[ing] the patient’s life by some painless means,” 70% of Americans think it should be allowed.[91] The lenses we use to view the concept of PAD, including the lens of language, drastically affect the way we perceive this issue, and the Justices of the Supreme Court are no exception. Something about our conception of “suicide” has to change if the Supreme Court can become capable of addressing the issue in a more nuanced way. Blackletter rules make for a brute force approach to nuanced problems. But, it seems unlikely that the Supreme Court would be willing to revise its approach on these issues anytime soon. The Court’s concerns about coercion against vulnerable populations are not going anywhere, and the Court is probably also concerned about appearing brazen on the matter. In effect, the PAD issue really has been left to the states, and the states must look to one another for guidance. They would be well advised to look to Oregon.

B. Policy Indicators in Oregon

Courts have expressed some concern that PAD will lead to unseemly results for vulnerable populations, including the elderly and the disabled.[92] The ODWDA has been on the books for seventeen years,[93] which is enough time for some meaningful things to begin to be drawn from a policy analysis on the law. The Oregon Public Health Division (“OPHD”) compiles an annual report about the administration of the law,[94] and some of its findings can directly address the concerns that courts continue to articulate. While the OPHD would do well to collect more information on patient vulnerability, such as the patient's disability status, relationships, medical care, and whether someone has to make medical decisions on behalf of the patient, the OPHD has collected data on a number of factors that demonstrate what kind of patients avail themselves of the ODWDA.[95] The majority of people using the ODWDA law reported end-of-life concerns such as loss of autonomy (91.5%), being less able to engage in activities that make life enjoyable (88.7%), and loss of dignity (79.3%).[96] Fewer people reported concerns about being a burden on family (40.0%), and very few reported concerns about the financial implications of treatment (only 3.2%).[97] These data do not seem to be representative of an exploited population. Most of the people who seem to avail themselves of the ODWDA are well educated, not undereducated.[98] It is also persuasive that, out of the 1327 people who have used the ODWDA, only 859, or 64.7%, have ended their lives using the prescribed medication.[99] This may be one of the more unintuitive results of ODWDA: the number of people who have actually used barbiturates to end their lives under the ODWDA represent a surprisingly low percentage of the law’s beneficiaries. It decreases the credibility of the suggestion that PAD entails physicians causing the death of their patients.With these statistics in mind, the concerns legal scholars had about PAD in 1998 no longer pose much cause for concern. Vulnerable populations did not disproportionately avail themselves of the ODWDA; rather, the exact opposite happened.[100] Since vulnerable populations did not disproportionately avail themselves of the ODWDA, the argument that physicians and family members will coerce vulnerable populations into utilizing the ODWDA also seems less convincing.[101] Critics also argued that Americans’ preference for individual autonomy would make it impossible to regulate PAD in any meaningful way.[102] To the contrary, Oregon has been doing it successfully for more than a decade.The Supreme Court reasons that PAD cases are distinguishable from cases about refusing medical treatment because when patients refuse life-saving treatment, their disease kills them, but when a physician prescribes medication to assist patients in committing suicide, prescribed medication kills them. Yet, in more than one-third of Oregon cases, when a physician prescribes lethal medication to a patient, the patient’s disease is still the cause of death. This result is illustrative of a realization that the American justice system contemplates end-of-life issues in fundamentally the wrong way.When terminally ill patients seek a prescription of lethal medication, they are not merely receiving the assurance of a peaceful end of life. Rather, these patients are being given something precious that they lost when they were first diagnosed with their terminal illness—their autonomy. In their amicus brief in Vacco, Americans for Death With Dignity and the Death With Dignity Education Center said, “When we enter a hospital for the last time, we may have the strength, and technically, the legal right to end our lives if we wish. But once in the medical system, we often lose the ability to help ourselves.”[103]

C. Lessons Learned in California

California’s absence of Death With Dignity laws led to Brittany Maynard’s difficult choice to leave her home state and resettle in Oregon.[104] After international attention was focused on the process she underwent to end her life in the manner she chose, California appears to have learned its lesson. A bill originating in the California Senate, called the End of Life Option Act,[105] reached the desk of Gov. Jerry Brown and was signed on October 5, 2015.[106] In his letter to the members of the California legislature, he invoked Brittany Maynard’s memory.[107] He also noted that, in making his decision to sign the bill into law, he considered “heartfelt pleas” from Maynard’s family and Archbishop Desmond Tutu, as well as advice from a Catholic Bishop, two of his own doctors, former classmates, and friends.[108] Clearly, PAD is an uncomfortable issue to think about deeply, but we can make the right decision as a community when we have sufficient information at our disposal.

Conclusion

The Supreme Court is not impervious to a simple shortage of available information. Everyday Americans are not the only ones confused about the legal issues surrounding end-of-life care. For now, the Supreme Court has drawn a causation-based distinction between the refusal of medical treatment and PAD, which has the effect of allowing patients who rely on life-sustaining care to die, but barring terminally ill patients from doing the same, even when they are in great pain. However, statistical information about the utilization of PAD across different states might provide invaluable quantitative information about causation. If Oregonians are not unique, and the rest of the country presents a similar pattern with regard to patient choices, the Supreme Court may have to revisit its distinction between PAD and refusal of medical treatment. In cases involving the removal of life-sustaining care, the Supreme Court has emphasized autonomy. The next time a PAD case reaches the Supreme Court, we should hope that there is enough quantitative evidence to show that the same emphasis on autonomy is due for the terminally ill. In the wake of Brittany Maynard’s decision, states would be wise to reconsider the benefits of PAD. Currently, most states inadvertently send a grim message to their terminally ill residents: “leave or you will suffer the consequences.” California has learned the hard way that no state should send that message.

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[1] J.D. Candidate 2016, University of Kentucky College of Law. Joseph Sherman also serves on the Kentucky Law Journal Editorial Board as the Online Content Editor.

[2] See, e.g., Brandon Griggs, Dying Young: Why Brittany Maynard’s Story Resonates, CNN (Oct. 14, 2014, 4:28 PM), http://www.cnn.com/2014/10/08/living/death-dignity-brittany-maynard/.

[3] Id.; Nicole Weisensee Egan, Terminally Ill Woman Brittany Maynard Has Ended Her Own Life, People (Nov. 2, 2014, 7:35 PM), http://www.people.com/article/brittany-maynard-died-terminal-brain-cancer.

[4] Brain Tumor Information, Am. Brain Tumor Ass’n, http://www.abta.org/brain-tumor-information/types-of-tumors/glioblastoma.html (last visited Mar. 20, 2015).

[5] Video: Brittany Maynard’s Legacy: One Year Later, The Brittany Maynard Fund, http://www.thebrittanyfund.org/.

[6] Egan, supra note 3; Eyder Peralta, As Planned, Right-to-Die Advocate Brittany Maynard Ends Her Life, NPR: The Two-Way (Nov. 3, 2014, 8:27 AM), http://www.npr.org/blogs/thetwo-way/2014/11/03/361094919/as-planned-right-to-die-advocate-brittany-maynard-ends-her-life.

[7] See Egan, supra note 3; Peralta, supra note 6.

[8] AMA Council on Ethical and Judicial Affairs, Formal Op. 2.211 (1994), http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page (discussing Physician-Assisted Death).

[9] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990).

[10] Vacco v. Quill, 521 U.S. 793, 799 (1997); Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[11] See Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905).

[12] Id. at 12-14.

[13] Id. at 14.

[14] Id. at 35, 39.

[15] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990).

[16] See id. at 266.

[17] Id. at 266-67. At this point, the Cruzan’s situation could be referred to as a case of “scientific futility”: treatment cannot achieve the medical result expected by the family, which is a full recovery. See Barbara A. Noah, Politicizing the End of Life: Lessons from the Schiavo Controversy, 59 U. Miami L. Rev. 107, 128 (2004). “Ethical futility” occurs when treatment actually no longer serves the underlying interests of the patient. The latter of these situations is more difficult to identify and address when the patient in incompetent. Id. For a discussion of the differences between scientific and ethical futility in the case of end-of-life case for Terry Schiavo, see id. at 126-31 (2004).

[18] Cruzan, 497 U.S. at 267.

[19] Id. at 268 (internal quotation marks omitted).

[20] See id. at 261, 268, 336.

[21] Id. at 285.

[22] Id. at 269.

[23] Id. at 265. The Supreme Court assumed without deciding that there was a constitutionally protected liberty interest in the refusal of medical treatment in cases involving competent patients. Id. at 279. However, the Court did not decide that incompetent patients had a similar unqualified right. Because the wishes of incompetent patients cannot readily be determined absent some outside evidence, it is difficult to respect the autonomy of an incompetent patient.

[24] See id. at 282.

[25] See id. at 268-69.

[26] See Nat’l Comm’n for the Prot. of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research 4 (1978) (finding that respect for a person’s autonomy is a basic ethical conviction), http://videocast.nih.gov/pdf/ohrp_belmont_report.pdf [hereinafter “The Belmont Report”]. The Belmont Report was developed in 1974 by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research to identify basic ethical principles that should guide the conduct of research involving human subjects. Mary Bernadette Ott & Gary Yingling, Guide to Good Clinical Practice ¶ 840 (2013), Westlaw CLINPRAC. It relied, in part, on the Nuremberg Code, which was written by Nuremberg Trial judges after World War II in response to Nazi atrocities committed during the war. See id. Although the Belmont Report was written to address ethical principles with respect to research on human subjects, modern medical practitioners hold its ethical principles dear even in general practice, even where practice might not connote “research” in the minds of most laypersons. Perhaps this is because the federal definition of “research” is quite broad. According to the Code of Federal Regulations, “[r]esearch means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 45 C.F.R. § 46.102(d) (2015). “Activities which meet this definition constitute research for purposes of this policy, whether or not they are conducted or supported under a program which is considered research for other purposes. For example, some demonstration and service programs may include research activities.” Id. Indeed, regardless of whether the American Medical Association considers general practice to be “research,” it clearly and explicitly respects the concept of informed consent, which is an aspect of respect for persons, one of the three ethical principles articulated in the Belmont Report. See Ott & Yingling, supra. The Belmont Report is not blackletter law, but rather is a set of professional standards, originally intended only for research, but given broader application professionally. See id.

[27] See The Belmont Report, supra note 26, at 4-6.; infra Part III.B.

[28] AMA Council on Ethical and Judicial Affairs, Formal Op. 2.211 (1994), http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2211.page.

[29] Compare id., with Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990).

[30] Washington v. Glucksberg, 521 U.S. 702, 706-07 (1997).

[31] Id. at 707.

[32] Id. at 708-09.

[33] Id. at 709.

[34] See id. at 723 (citing Cruzan, 497 U.S. at 279).

[35] Glucksberg, 521 U.S. at 703-704. Vulnerable populations in this case include “the young, the elderly, and those suffering from untreated pain or from depression or other mental disorders,” as well as “the poor, . . . disabled persons, [and] the terminally ill . . . .” Id.

[36] See id. at 730, 735.

[37] Vacco v. Quill, 521 U.S. 793, 796 (1997).

[38] Id. at 793.

[39] See id. at 798, 800.

[40] Id. at 798.

[41] Id. at 800-01.

[42] Id.

[43] Id. at 801.

[44] Id. at 808-09 (citing Washington v. Glucksberg, 521 U.S. 702, 703-04 (1997)).

[45] See Or. Rev. Stat. §§ 127.800-890, 127.895, 127.897 (Westlaw, current with 2015 Reg. Sess. legislation effective through Oct. 5, 2015), https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Pages/ors.aspx.

[46] Wash. Rev. Code Ann. §§ 70.245.010-220, 70.245.901-904 (Westlaw, current with all laws from the 2015 Regular Session and 2015 1st, 2nd, and 3rd Special Sessions), http://apps.leg.wa.gov/rcw/default.aspx?cite=70.245&full=true. Washington’s Death With Dignity statute was written to be substantially similar to the ODWDA. Anne Marie Su, Physician Assisted Suicide: Debunking the Myths Surrounding the Elderly, Poor, and Disabled, 10 Hastings Race & Poverty L.J. 145, 155-56 (2013).

[47] Or. Rev. Stat. § 127.805.

[48] Id. at § 127.800-805.

[49] Id. Communication does not necessarily entail speaking. As long as the patients can communicate in some way, the law is satisfied. Id.

[50] Id. at § 127.825.

[51] Id. at § 127.860. Only Oregon residents can avail themselves of the ODWDA. Residency does not require living in Oregon for any particular duration but does entail verification by driver’s license, lease of apartment or proof of home ownership, voter registration, or payment of taxes. Id.

[52] See id. at §§ 127.815, 127.880.

[53] Id. at § 127.880.

[54] Vt. Stat. Ann. tit. 18, §§ 5281-92 (Westlaw, current through the First Session of the 2015-2016 Vermont General Assembly), http://legislature.vermont.gov/assets/Documents/2014/Docs/BILLS/S-0077/S-0077%20As%20Passed%20by%20Both%20House%20and%20Senate%20(Unofficial).pdf. The bill was signed into law on May 20, 2013, but many substantive portions of the law will not take effect until July 1, 2016. Id. Vermont’s PAD law was also written to be similar to the ODWDA; however, its statutory mandates are set to expire after three years, leaving in their place professional medical standards. Kathryn L. Tucker, Vermont’s Patient Choice at End of Life Act: A Historic “Next Generation” Law Governing Aid in Dying, 38 Vt. L. Rev. 687, 688 (2014). California has now also legalized PAD by legislative act. See infra Part III.C.

[55] Baxter v. Montana, 224 P.3d 1211, 1214 (Mont. 2009).

[56] Id. at 1215 (quoting Mont. Code Ann. § 45-5-102 (Westlaw, current through chapters effective July 1, 2015, 2015 session)).

[57] Id.

[58] Id. at 1218-22. Although the majority opinion based its decision on statutory interpretation, the concurrence also made an argument based on a state constitutional law provision that respects the right of all humans to individual dignity. Id. at 1227-33 (Nelson, J., concurring).

[59] Morris v. Brandenberg, 2014 N.M. Dist. Ct. 2909U, ¶ PP, http://agoodgoodbye.com/wp-content/uploads/2014/01/199446010-Physician-aid-in-dying-Ruling.pdf; see also Phil Milford, Right to Die with Doctor’s Help Affirmed in New Mexico, Bloomberg Business (Jan. 14, 2014, 1:33 PM), http://www.bloomberg.com/news/articles/2014-01-14/right-to-die-with-doctor-s-help-affirmed-in-new-mexico.

[60] Morris, 2014 N.M. Dist. Ct., ¶ EE.

[61] Id. ¶ HH.

[62] Id. ¶¶ KK, NN, PP.

[63] See, e.g., Patrick M. Curran, Jr., Note, Regulating Death: Oregon’s Death With Dignity Act and the Legalization of Physician-Assisted Suicide, 86 Geo. L.J. 725, 725 (1998).

[64] Id. at 734-36.

[65] Id. at 739-41.

[66] Id. at 741-42.

[67] AMA Council on Ethical and Judicial Affairs, supra note 8.

[68] The Belmont Report, supra note 26, at 4-6.

[69] Id. at 6-8.

[70] Id. at 8-10.

[71] See, e.g., Ira Byock, Doctor-Assisted Suicide Is Unethical and Dangerous, N.Y. Times: Room for Debate (Sept. 4, 2015, 2:25 PM), http://www.nytimes.com/roomfordebate/2014/10/06/expanding-the-right-to-die/doctor-assisted-suicide-is-unethical-and-dangerous.

[72] Id.

[73] E.g., Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 280 (1990); Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (reaffirming the state’s interest in the preservation of fetal life articulated in Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 838 (1992), and Roe v. Wade, 410 U.S. 113, 163-64 (1973)).

[74] E.g., Vacco, 521 U.S. at 798. The Supreme Court has found that individuals in this class include the elderly or the mentally or physically disabled. Washington v. Glucksberg, 521 U.S. 702, 704 (1997).

[75] See, e.g., Henry Rollins, Henry Rollins: Fuck Suicide, L.A. Weekly Music (Aug. 21, 2014), http://www.laweekly.com/music/henry-rollins-fuck-suicide-5016770. (responding to the suicide death of Robin Williams).

[76] Brief for Surviving Family Members in Support of Physician-Assisted Dying as Amici Curiae Supporting Respondents at 9-11, Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 96-110, 95-1858), 1996 WL 722032.

[77] Id. at 12-15.

[78] Brittany Maynard, My Right to Death With Dignity at 29, CNN Opinion (Nov. 2, 2014, 10:44 PM), http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/.

[79] Id.

[80] Brief for Surviving Family Members in Support of Physician-Assisted Dying, supra note 77, at 16-22.

[81] Id. at 22-24.

[82] See About Brittany Maynard, The Brittany Maynard Fund, http://www.thebrittanyfund.org/about/ (last visited Mar. 23, 2015).

[83] Brief for Surviving Family Members in Support of Physician-Assisted Dying, supra note 77, at 28-29.

[84] Quill v. Vacco, 80 F.3d 716, 729 (2d Cir. 1996), rev’d, 521 U.S. 793 (1997) (emphasis added).

[85] Vacco, 521 U.S. at 801 (quoting In re Colyer, 660 P.2d 738, 743 (Wash. 1983)).

[86] Physicians are not allowed to help patients take the lethal medication. Patients must be capable of doing it themselves. See infra, Part III.B.

[87] See infra, Part III.B.

[88] Vacco, 80 F.3d at 729.

[89] Lydia Saad, U.S. Support for Euthanasia Hinges on How It’s Described, Gallup: Politics (May 29, 2013), http://www.gallup.com/poll/162815/support-euthanasia-hinges-described.aspx.

[90] Id.

[91] Id.

[92] See, e.g., Washington v. Glucksberg, 521 U.S. 702, 731-32 (1997).

[93] Or. Pub. Health Div., Oregon’s Death With Dignity Act--2014 (2015), https://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year17.pdf.

[94] Id.

[95] See generally Or. Pub. Health Div., supra note 94. In 2014, 105 people ended their lives using the ODWDA. Id. at 1. Of those people, 95.2% were white, 45.7% were married at their time of death, and 47.6% had a baccalaureate degree or higher, compared with 5.7% who had less than a high school diploma. Id. at 4. Since ODWDA was enacted, 859 people ended their lives using the law. Id. at 2. Of those people, 97.1% were white and 46.1% were married at their time of death. Id. at 4. Moreover, 45.9% had a baccalaureate degree or higher, compared with 6.0% who had less than a high school diploma, and 72.1% had at least some college education. See id. These demographics do not seem to disproportionately represent a vulnerable population. In fact, the demographics seems to indicate a certain degree of affluence among those availing themselves of the law.

[96] Id. at 5.

[97] Id.

[98] See id. (reporting that, since the ODWDA went into effect, of the patients who used the law, 45.9% had a baccalaureate degree or higher, compared with 6.0% who had less than a high school diploma, and 72.1% had at least some college education.).

[99] See id. at 2.

[100] Compare Curran, supra note 64, at 741-42 (expressing concern that the ODWDA would disproportionately impact minorities, the disabled, and women), with Or. Pub. Health Div., supra note 94, at 4-5 (suggesting that the majority of those taking advantage of the law are well-educated and white).

[101] See Curran, supra note 64, at 739-40.

[102] Id. at 734-36.

[103] Brief for Americans for Death With Dignity and the Death With Dignity Education Center as Amici Curiae Supporting Respondents at 18-19, Vacco v. Quill, 521 U.S. 793 (1997) (No. 95-1858, 96-110), 1996 WL 709335.

[104] About Brittany Maynard, supra note 83.

[105] S.B. 128, 2015 Gen. Assemb., Reg. Sess. (Cal. 2015), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB128.

[106] See Letter from Edmund G. Brown, Jr., Governor of Cal., to the Members of the Cal. State Assemb. (Oct. 5, 2015), https://www.gov.ca.gov/docs/ABX2_15_Signing_Message.pdf.

[107] Id.

[108] Id.

Life and Death in Kentucky: Past, Present, and Future

This Online Original is available for download (PDF) here.

Article | 102 KY. L. J. ONLINE 3 | Nov. 10, 2013

Roberta M. HardingFN1

"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."FN2 -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,FN3 when a man was hung for murder in Breckinridge County.FN4 The next four executions also were carried out during Kentucky’s tenure as the District of Kentucky.FN5 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.FN6 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 1780FN7 and the last in 2008,FN8 the Commonwealth has executed 427 people.FN9  415 males and 12 females.FN10 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;FN11 while male capital offenders were executed for the remainder of the 19th century and in the 20th and 21st centuries.FN12 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,FN13 the Commonwealth has sentenced eighty-two people to death.FN14 96% were male and 4% were female.FN15 Incredibly, these percentages are almost identical to those based on more than two centuries of execution data.FN16 The existence of this bias, however, is not unique to Kentucky; nor has it gone unacknowledged.FN17 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.FN18 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.FN19 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”FN20 and was an important issue at the Convention to draft Kentucky’s First Constitution.FN21  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.”FN22 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.FN23 “The prominent place given the institution [of slavery] in the first three constitutions”FN24 led noted Kentucky historian Thomas Clark to describe Kentucky’s “hold on slavery”FN25 as “tenacious,”FN26 but strangely, “[w]hen the Civil War began, Kentucky was one of four slave states that remained in the Union.”FN27 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.”FN28 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.FN29 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.FN30 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.”FN31 While Kentucky did not end up seceding,FN32 the legislature did refuse to ratify the Thirteenth Amendment.FN33 Even after the Secretary of State announced the Amendment had been ratified, the Kentucky legislature “refused to change its stance”FN34 and again voted down ratifying the Amendment.FN35 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. As noted earlier, the Commonwealth has executed 427 people.FN36 Racially, the overwhelming majority of people executed were either African-American, accounting for 54%, or Caucasian, accounting for 42%.FN37 Even though female capital offenders benefit greatly from the death penalty’s gender bias,FN38 the group is responsible for generating one of the most remarkable race and the death penalty statistics: Kentucky has only executed one Caucasian female, while 83% of the females executed were African-American.FN39 Another astounding statistic from this category is that “no white man in Kentucky died on the gallows or in the electric chair for the rape of a black woman.”FN40 In Kentucky, more African-American men, 222,FN41 than Caucasian men, 177,FN42 lost their lives on the scaffold, in the electric chair, or on the gurney.FN43 Eight men belonging to the former group, however, lost their lives because of how a facially race neutral law was applied. Action taken by the legislature in the early twentieth century fostered some hope that the execution of Roger Warren, an African-American male, on May 25, 1911 would be the last execution carried out by hanging.FN44  The year before the legislature authorized switching the state’s sole method of execution from hanging to electrocution.FN45 In addition, executions were to “take place within the walls of the State penitentiary”FN46 away from the purview of the public.FN47 This hope was reinforced when eighteen year old James Buckner, African-American like his predecessor Roger Warren, christened Kentucky’s electric chair “Ole’ Sparky” on July 8, 1911.FN48 Nine years later the outcome in a capital case in Lexington involving an African American man accused of murdering and raping a ten year old white female would land a cruel blow to hopes about transforming the relationship between the rope and violence. In February 1920, twenty three year old Will Lockett confessed to murdering young Geneva Hardman.FN49 Given the circumstances, the sexual assault, the victim/defendant racial and gender paradigm: white female victim and black male defendant, and the girl’s tender age, the authorities “[f]ear[ed] a mob might storm the jail [so they]  . . . rushed [Lockett] to the state penitentiary in Frankfort.”FN50 The next day Lockett was indicted for murder and the judge vowed “there would be no delay . . . and that the trial would start . . . Monday, [February 9, 1920] only five days after the murder.”FN51 The Governor promised “Lexington officials that troops would be sent to protect Lockett on his return to the city.”FN52 The press did its best to  quell the public’s call for mob violence by assuring people that “Lockett’s trial would be quick and the outcome certain”FN53 and they were: in less than thirty minutes Lockett was convicted, though by pleading guilty he helped honor the pledge that justice would be swift,FN54 and “sentenced . . . to die in the electric chair.”FN55 “Although elated . . . a number of Lexington whites expressed the belief that . . . Lockett should have been made to suffer by dying at the end of a rope [in public for sexually assaulting Geneva].”FN56 The legislature’s response to this suggestion was extraordinarily fast and a week after Lockett died by electrocutionFN57the legislature approved an Act to amend section one of the execution by electrocution statute by adding the following: “Except in cases where the accused has been adjudged to suffer a death sentence for the crime of rape or attempted rape, in which event sentence shall be executed by hanging the condemned in the county in which the crime was committed.”FN58 The hanging was supposed to be done “within an enclosure”FN59 and before no more than “one hundred persons.”FN60 Although this law was race neutral, its application decidedly was not. Nine men were executed in accordance with this law and all were men of color.FN61 This law’s success, as well as securing death sentences against African American capital offenders in general, was greatly dependent upon having accommodating juries. This was best achieved by seating all white juries, which was easy to accomplish when African Americans were statutorily expressly barred from being jurors. In the late 19th century, however, the United States Supreme Court created two obstacles in an effort to end this long-standing discriminatory practice: it held that statutes expressly prohibiting African Americans from serving on juries, and racially neutral statutes applied in a manner that accomplishes the same result, violate the accused’s and the excluded potential jurors’ right to equal protection under the Fourteenth Amendment.FN62 As a result, a greater cost was attached to seating an all white jury: violating the defendant’s and potential jurors’ constitutional rights. Smith v. CommonwealthFN63 and Hale v. CommonwealthFN64 are representative of the problem. Smith, “a negro,”FN65 was indicted for murder by an all white grand jury and another all white jury found him guilty as charged and sentenced him to death. On appeal he contended his conviction was invalid because it was no accident that he, “a negro,” was indicted, tried, and convicted by all white juries. Smith apprised the Kentucky Court of Appeals that about twenty percent of the voters in Hardin County were African American and fifteen percent of them were eligible for jury service; yet, the jury commissioners, white men, never selected them.FN66 The court gave short shrift to Smith’s argument, “finding no error” and affirmed the judgment.FN67 Three decades later another ”negro,”FN68 Joe Hale, also convicted of murder and sentenced to death, revisited the issue with the Kentucky Court of Appeals. Hale had evidence to prove that “going back as far as 1906, no member of the African race had been summoned or served on a grand or a petit jury in McCracken county.”FN69 He argued:[T]he foregoing facts, when proved, show a long continued, unvarying and wholesale exclusion of negroes from jury service in this county on account of their race and color; that it has been systematic and arbitrary on the part of the officers and commissioners who select the names for jury service, for a period of fifty years or longer.FN70 The court detected problems with Hale’s proof, starting with his failure to include evidence in the record proving he “was a member of the African race,”FN71 but the court was forgiving of this evidentiary omission and conceded that “the court no doubt by observation knew that fact to be true.”FN72 The court’s greatest concern was about what it deemed Hale’s “failure to charge therein as grounds therefore, that such exclusion of members of the African race from service on juries was superinduced and occurred ‘solely because they were members’ of that race.”FN73  The United States Supreme Court, however, saw the evidence offered by Hale in an entirely different light: “We are of the opinion that the affidavits . . . sufficed to show a systematic and arbitrary exclusion of negroes from the jury lists solely because of their race or color, constituting a denial of the equal protection of the laws guaranteed to petitioner by the Fourteenth Amendment.”FN74 The Court reversed the judgment and remanded the case for “further proceedings not inconsistent with this opinion.”FN75 Unfortunately, Kentucky did not heed the Court’s admonishment that “proceedings not be inconsistent with that opinion” because in 1986, almost half a century later, the state found itself back in front of the Court for the same practice: excluding African Americans from being jurors.FN76 In this round, the state’s exclusionary strategy involved exercising peremptory challenges as a way to get rid of African AmericansFN77 [in order to seat an all white or as close to all white jury as possible]. Once again, the Court chided the Commonwealth for violating constitutional rights that are guaranteed to everyone, regardless of color, creed, gender or religion. Discriminatory practices continue to plague the administration of capital punishment in Kentucky,FN78 despite the fact the Commonwealth was at the vanguard with respect to following a recommendation made by the Supreme Court in 1987 that racial problems associated with the use of the death penalty be resolved through legislation.FN79 And in 1998, Kentucky became the first jurisdiction in the United States to enact a Racial Justice Act.FN80 Yet, there are lingering concerns about the Act’s effectiveness.FN81 The pervasiveness of gender discrimination is disheartening; especially when one remembers that the proportion of women and men sentenced to death in Kentucky during capital punishment’s modern era is almost the same as the proportion of the women and men executed over a period of time exceeding two centuries.FN82 Is history repeating itself? Or, is it simply that little has changed at the core in the use of the death penalty? If so, then perhaps now is the time to implement real tangible change. Certain considerations indicate change might be warranted. In 1962 Kelly Moss was executed.FN83 The following year the people of Kentucky elected Edward Breathitt to serve as the Commonwealth’s Chief Executive and he “brought an already strong aversion to capital punishment with him to the governorship.”FN84  “In the 1964 General Assembly he endorsed a bill abolishing the death penalty.”FN85 He also “announced a general stay of execution for all condemned state prisoners until he could place the measure before the legislature once again in 1966.”FN86 So, for several years, Kentucky could be considered a de facto abolitionist jurisdiction. Three decades passed before Kentucky carried out another execution.FN87 These thirty plus years include periods of time when Kentucky actually did not have capital punishmentFN88 and when Kentuckians decided to partially abolish the death penalty by forbidding it to be imposed on a segment of the population.FN89 Only two people have been executed since McQueen was in 1997 and both were volunteers.FN90 Therefore, it has been sixteen years since Kentucky has used its execution machinery on a non-volunteer. During what collectively amounts to a significant period of time, there was not nor has there been a public outcry when the death penalty has been absent, de jure or de facto, from the Commonwealth. Perhaps that means the time is ripe for changes to be made; specifically, those of the magnitude sufficient to stop Kentucky from going round and round and round on the death penalty wheel, continually repeating the longstanding problems associated with the state’s death penalty practice.

FN1. William T. Lafferty Professor of Law.   Harvard Law School, JD(1986); University of San Francisco, BSBA (1981). I would like to thank third year law students Daniela Erazo and Rachel Warf, my Research Assistants, for the valuable contributions, research and data compilation, they made to this article. I also greatly appreciate the exceptional assistance provided by Beau Steenken, Instructional Services Librarian & Instructor of Legal Research, and Tina Brooks, Electronic Services Librarian.  And a special thanks to Beau Steenken for sharing his immense knowledge of legal history. His mastery of English and colonial legal history made it much easier for me to think and write about certain topics in this article.

FN2. Edward T. Breathitt, Address at University of Louisville Law Day (May 5, 1965), in The Public Papers of The Governors of Kentucky, Papers of Edward T. Breathitt 468, 469 (Robert F. Sexton ed., 1984). Edward “Ned” Thompson Breathitt, a Democrat, served as the Commonwealth of Kentucky’s 51st Governor from December 10, 1963 – December 12, 1967. Kentucky Governor Edward Thompson Breathitt, National Governors Association, http://www.nga.org/cms/home/governors/past-governors-bios/page_kentucky/col2-content/main-content-list/title_breathitt_edward.html (last visited Nov. 5, 2013); List of Governors of Kentucky, http://en.wikipedia.org/w/index.php?title=List_of_Governors_of_Kentucky&oldid=566226955 (last visited Nov. 5, 2013). The two Governors of the Confederate State of Kentucky are excluded from the roster of Kentucky Governors. See Ron D. Bryant, The Confederate Governors of Kentucky, Kentucky Gazette, http://www.jkhg.org/kyconfgovs.htm (last visited Nov. 5, 2013). See infra at note 32 for information about the Confederate State of Kentucky.

FN3. On May 23, 1609, approximately two years after the founding of the British Colony of Virginia, King James of England and Scotland signed The Second Charter of Virginia. The Charter granted the Virginia Company “the land, throughout from sea to sea, west and northwest . . . .” The Second Charter of Virginia § VI (1609), reprinted in 1 Statutes at Large: A Collection of All the Laws of Virginia 80, 88 (William Waller Hening ed., 1823). “[A]s soon as it was apparent that the western country was to be settled,” Virginia created Fincastle County in 1772 from these lands to the west. Thomas D. Clark, A History of Kentucky 65 (The Jesse Stuart Foundation 1988) (1937). Four years later, on the last day of the year America declared her independence from England, Kentucky County was formed out of Fincastle County. Id. at 46, 66. According to noted Kentucky historian Thomas D. Clark, the first permanent settlement of what would be Kentucky County had been established almost two years earlier on March 15, 1775. Id. at 42. In 1779, the Virginia legislature passed an Act making the County of Kentucky the District of Kentucky of the State of Virginia. 1779 Va. Acts 92, ch. XII, § VIII.

FN4. See Kentucky Executions: 1780 – 1962, http://web.archive.org/web/20080617225325/users.bestweb.net/~rg/execution/KENTUCKY.htm (last visited Nov. 5, 2013) [hereinafter Kentucky Executions] (identifying the man’s surname as Baysinger); Executions in the U.S. 1608 – 2002: The ESPY File, Executions by State 120, http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited Nov. 5, 2013) [hereinafter ESPY File].

FN5. See ESPY File, supra note 4, at 120 (stating that the second execution was in 1785, the third and fourth ones in 1787, and the fifth in 1791).

FN6. See Kentucky Executions, supra note 4. Five years after Kentucky’s first execution, Peter Vigo was hanged for theft-stealing in Jefferson County. Two years later, in 1787, Daniel Coleman was hanged in Monroe County for arson and Cato Watts’ life ended on the scaffold in Jefferson County for the crime of murder. The last execution carried out prior to Kentucky obtaining its statehood was in 1791 when twelve-year-old Bill James was hanged for murder in Woodford County. Id.

FN7. See id.

FN8. Marco Chapman, who died by lethal injection on November 21, 2008, was the last person, the 427,th executed by the Commonwealth. Marco Chapman, Death Penalty Information Center, http://www.deathpenaltyinfo.org/marco-chapman (last visited Nov. 5, 2013).

FN9. See ESPY File, supra note 4, at 120-131.

<FN10. Id.

FN11. See Kentucky Executions, supra note 4. When 13-year-old Susan mounted the scaffold in Henry County on February 7, 1868 she became the last female and the 135th person executed by the state. She also is the third, as well as the second youngest and only female, of the ten juvenile capital offenders the Commonwealth executed. Id. Two juvenile capital offenders have been sentenced to death during the modern era of Kentucky’s death penalty practice. See infra note 13 (discussing the commencement of the modern era of capital punishment in the United States). The first was Todd Ice, who was fifteen years old when he committed the offense for which he received a death sentence in 1980. American Bar Ass’n, Evaluating Fairness and Accuracy in State Death Penalty Systems: The Kentucky Death Penalty Assessment Report app. at C (2011), available at http://www.americanbar.org/content/dam/aba/administrative/death_penalty_moratorium/final_ky_report.authcheckdam.pdf. Two years later Kevin Stanford was sentenced to death for a capital offense committed when he was seventeen years old. Id. at E. In 1984 the Kentucky Supreme Court reversed Ice’s conviction when the case was there for mandatory review. See Ice v. Commonwealth, 667 S.W.2d 671, 680 (Ky. 1984). Ice was retried and convicted of a lesser offense and eventually served out his sentence. If, however, Ice had not received relief prior to June 29, 1988, his death sentence would have been invalidated that day by the United States Supreme Court’s opinion in Thompson v. Oklahoma, where Five Justices agreed society opposed imposing death sentences on capital offenders who were younger than sixteen years old at the time the crime was committed; consequently, the Eighth and Fourteenth Amendments rendered this practice unconstitutional. See Thompson v. Oklahoma, 487 U.S. 815, 838 (1988). Kevin Stanford was not as fortunate as Ice because the Kentucky Supreme Court affirmed his conviction and his death sentence. Stanford v. Commonwealth, 734 S.W.2d 781, 793 (Ky. 1987). And, despite its ruling the year before in Thompson, the United States Supreme Court was not persuaded by Stanford’s contention that the failure to exempt sixteen and seventeen year old capital offenders from the death penalty violated the Eighth and Fourteen Amendments. Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (plurality opinion). Close to a decade and a half later, Stanford found relief in the government’s executive branch when former Kentucky Governor Paul Patton commuted his death sentence to life without the possibility of parole or pardon in 2003. See Commutations in Capital Cases on Humanitarian Grounds, Death Penalty Information Center, http://www.deathpenaltyinfo.org/clemency (last visited Nov. 5, 2013). Ice and Stanford are the only two juvenile capital offenders to have death sentences imposed in Kentucky during capital punishment’s modern era: 1971 to the present. See infra note 13.

FN12. See ESPY File, supra note 4, at 124-131.

FN13. Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). The year before the United States Supreme Court had decided McGautha v. California. 402 U.S. 183(1971). The Court’s opinion in McGautha was featured in three of the four dissenting opinions in Furman,  Furman, 408 U.S. at 375 (Burger, J., dissenting); id. at 405 (Blackmun, J., dissenting); id. at 413 (Powell, J., dissenting), and since Furman invalidated death penalty legislation in 39 states, including Kentucky, id. at 417 (Powell, J., dissenting), McGautha played a significant role in the effort by states to fashion a capital sentencing remedy that would comply with Furman.  See, e.g., Ky. Rev. Stat. § 532.030(1) (1974); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). Even though McGautha and Crampton based their challenge to the total discretionary capital sentencing scheme on the Fourteenth Amendment’s Due Process Clause, and the same challenge by Furman, Jackson, and Branch was based on the Eighth and Fourteenth Amendments, for the reasons stated above, I consider  McGautha the case that ushered in the modern era of the practice of capital punishment in the United States. Although Furman v. Georgia, which imposed a four-year legal moratorium on executions, was on its heels,  and then five years later by Gregg v. Georgia, 428 U.S. 153 (1976), where the Court upheld the constitutionality of Georgia’s capital sentencing scheme.

FN14. Prior to the Court’s holding in Furman, Kentucky permitted the death penalty for multiple crimes, including murder, Ky. Rev. Stat. § 435.010 (1970), the rape of a child under the age of twelve, Ky. Rev. Stat. § 435.080(1) (1970), the rape of a female twelve or older, Ky. Rev. Stat. § 435.090 (1970), and lynching or mob violence, Ky. Rev. Stat. § 435.070(2) (1970). The penalty decision was left entirely to the discretion of the sentencing authority, typically a jury.  In Furman, however, five of the nine Justices concluded that “the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishments in violation of the Eighth and Fourteenth Amendments.” Furman v. Georgia, 408 U.S. at 240. For three of the Justices concurring in the judgment “the imposition . . . of the death penalty in these cases,” meant totally discretionary capital sentencing schemes. Id. at 240 (Douglas, J., concurring); id. at 306-07 (Stewart, J., concurring); id. at 310-14 (White, J., concurring). The other two concurring Justices, Brennan and Marshall, concluded the death penalty was per se unconstitutional. Id. at 257, 285, 305-06 (Brennan, J. concurring); id. at 314, 370-71 (Marshall, J. concurring). As a result, on June 29, 1972, the “capital punishment laws of no less than 39 States,” id. at 417 (Powell, J. dissenting), including Kentucky’s, were “nullified,” id., which also had the consequence of transforming all but one of the 50 states into abolitionist states. Id. at 417, note 2 (Rhode Island was the only remaining retentionist state because its sole capital statute called for a mandatory death sentence, which was beyond the purview of the Court’s holding). Two years after Furman Kentucky’s legislature enacted a new capital sentencing scheme, see  Ky. Rev. Stat. § 532.030(1) (1974), that went into effect January 1, 1975. This statute was used to impose death sentences on Wallace Boyd, Boyd v. Commonwealth, 550 S.W.2d 507 (Ky. 1977), Jimmy Self, Self v. Commonwealth, 550 S.W.2d 509 (Ky. 1977), and Ronnie Meadows, Meadows v. Commonwealth, 550 S.W.2d 511 (Ky. 1977): the first three people condemned in Kentucky during the post-Furman era. On July 2, 1976, however, the Kentucky legislature learned the Court decided that a mandatory capital sentencing scheme, the type Kentucky adopted, see Ky. Rev. Stat. § 532.030(1) (1974), was incompatible with the rights guaranteed by the Eighth and Fourteenth Amendments. See Woodson v. North Carolina, 428 U.S. 280 (1976). Consequently, Kentucky, once again, found itself as a state without capital punishment. That same year Kentucky’s legislature convened and enacted yet another post-Furman capital sentencing scheme. When the Court struck down mandatory death sentences, it upheld several guided discretion capital sentencing schemes, see Gregg v. Georgia, 428 U.S. 153) (1976) (joint opinion), Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976), and Kentucky’s egislature decided to enact a guided discretion capital sentencing scheme modeled after Georgia’s, see Ky. Rev. Stat. §§ 532.030(1), (4) (1976), Ky. Rev. Stat. § 532.025 (1976), and Ky. Rev. Stat. § 532.075 (1976), that went into effect December 22, 1976. Several months later the Kentucky Supreme Court reversed the death sentences imposed on Boyd, Self and Meadows and substituted terms of life imprisonment. See Boyd v. Commonwealth, 550 S.W.2d 507, 508-09 (Ky. 1977); Self v. Commonwealth, 550 S.W.2d 509, 510(Ky. 1977); Meadows v. Commonwealth, 550 S.W.2d 511, 513(Ky. 1977). Seventy-nine others in Kentucky were sentenced to death post-Furman. See American Bar Ass’n, supra note 10, at B-F. Their death sentences, however, were imposed in accordance with the guided discretion capital sentencing statutes, Ky. Rev. Stat. §§ 532.030(1),(4) (1976), Ky. Rev. Stat. § 532.025 (1976), and Ky. Rev. Stat. § 532.075(1976). Thus, between 1974 and 2011 the Commonwealth has condemned eighty-two people.

FN15. See supra note 13.

<FN16. See supra notes 8-10 and accompanying text.

FN17. In 1972, a year after the commencement of the modern era of capital punishment, see supra note 13, Justice Marshall identified gender as one of several forms of discrimination long associated with the administration of capital punishment in the United States. Justice Marshall succinctly described the situation as one with “overwhelming evidence that the death penalty is employed against men and not women. Only 32 women have been executed [nationally] since 1930, while 3,827 men have met a similar fate.” Furman v. Georgia, 408 U.S. at 365 (Marshall, J., concurring). The Justice goes on to note that since “[m]en kill between four and five times more frequently than women,” id. at note 154, some of the incongruity might be attributed to differences in socialization, “[h]ence, it would not be irregular to see four or five times as many men executed as women. The statistics show a startlingly greater disparity, however.” Id. Fifteen years later, the gender issue surfaced in an important case in the Court’s body of capital jurisprudence. See McCleskey v. Kemp, 481 U.S. 279 (1987). Here the Court not only acknowledged that gender plays a role in the sentencing authority’s decision to impose a death sentence, see id. at 315-17 & n.40, but also very likely the existence of this bias contributed toward the Court holding, despite statistical evidence of the racially discriminatory impact of the death penalty, findings the Court assumed were statistically valid, see id. at 291 n.7, Warren McCleskey, an African-American man, was not sentenced to death in a manner that violated either the Eighth or Fourteenth Amendments. Id. at 319.

FN18. ESPY File, supra note 4, at 120.

FN19. Kentucky Executions, supra note 4.

FN20. Lowell H. Harrison, Slavery in Kentucky: A Civil War Casualty, 5 Ky. Review 32, 32 (1983). Historian Thomas Clark notes “it was only natural that the early pioneers should transfer the institution [of chattel slavery] from Virginia to their farms west of the mountains.” Clark, supra note 3, at 192.

FN21. See Harrison, supra note 20, at 32. In 1789 Virginia passed an Act supporting the District of Kentucky’s quest to attain independent statehood status. 1789 Va. Acts 10, ch. XIV. Two years later the First United States Congress consented to the formation of a “new State . . . within the jurisdiction of the Commonwealth of Virginia,” Act of Feb. 4, 1791, ch. 4, 1 Stat. 189 ( 1791), and to the admission of this new state “into this Union, by the name of the State of Kentucky.” Id. Since the District of Kentucky was scheduled to be admitted into the Union by June 1, 1792, a constitution had to be drafted and approved before then. Clark, supra note 3, at 92. This deadline was met when Kentucky’s First Constitution was approved April 19, 1792. Ky. Const. of 1792. Subsequently, on June 1, 1792 the District of Kentucky became the State of Kentucky and the fifteenth member of the Union. Clark, supra note 3, at 92.

FN22. Clark, supra note 3, at 95. See also, Ky. Const. of 1792, art. IX.

FN23. Clark, supra note 3, at 113, 210-11, 305, 308, 310, 340; see also See Harrison, supra note 20, at 32 (“[T]he right of property is before and higher than any constitutional sanction, and the right of an owner of a slave to his property is the same and as inviolate as the right of an owner of any property whatsoever”) (quoting Ky. Const. of 1850, art. XII, § 3).

FN24. Clark, supra note 3, at 212.

FN25. Id.

FN26. Id.

FN27. Harrison, supra note 20, at 32.

FN28. Id. at 33.

FN29. Id. at 34; see also id. at 35-36.

FN30. Id. at 36.

FN31. Id. In fact, the “state protests were so violent that the order was suspended until February 1864.” Id.

FN32. Although, slightly more than six months after the Civil War began, a group of Confederate sympathizers held a secession convention in Russellville, Kentucky. On November 20, 1861 the unelected group proclaimed Kentucky’s secession from the Union and inaugurated George W. Johnson, who hailed from Scott County, as the first Governor of the Confederate State of Kentucky. Even though Jefferson Davis, President of the Confederate States of America, harbored doubts about the legality of Kentucky’s secession on December 10, 1861, the Commonwealth of Kentucky became the thirteenth state of the Confederate States of America. After Governor Johnson died in battle on April 8, 1862, Richard Hawes, a resident of Bourbon County, became the second Governor of the Confederate State of Kentucky. He retained the position until the fall of the Confederacy. The tenure of the Confederate State of Kentucky was short-lived and had no effect on the Commonwealth of Kentucky’s status as a member of the United States of America. See Bryant, supra note 2.

FN33. Harrison, supra note 20, at 39.

FN34. Id. at 40.

FN35. Id. See also George C. Wright, Racial Violence in Kentucky, 1865 – 1940, at 20 (1990).

FN36. See supra note 9 and accompanying text.

FN37. African-Americans and Caucasians account for 96% of the total. One Native American male was executed, see Kentucky Executions, supra note 4 (see execution 104), and the races of 16 people, 3.7 % of those executed, are unknown. ESPY File, supra note 4, at 120-31.

FN38. See supra notes 6-17 and accompanying text (identifying and discussing the gender bias inherent in the administration of the death penalty).

FN39. ESPY File, supra note 4, at 120-23. Kentucky has executed twelve females. One Caucasian female, one female whose race is unknown, and ten African-Americans. Id.

FN40. Wright, supra note 35, at 299.

FN41. ESPY File, supra note 4, at 120 – 131. This figure excludes extra-judicial lynchings. See generally Wright, supra note 35, at 1-11, 13-14, 61-107, 166, 307-323.

FN42. ESPY File, supra note 4, at 120 – 131. See also, Marco Chapman, supra note 8. Although separated by more than two centuries, the first person and the last the Commonwealth executed were Caucasian men. Id.; see also ESPY File, supra note 4, at 120.

FN43. In 1965 Kentuckians were officially put on notice about their racially skewed death penalty when then Governor Breathitt informed them that “[s]ince the electric chair was placed in operation at Eddyville State Penitentiary in 1911, some 162 men have been electrocuted. Of this number, approximately one-half have been Negroes.” Breathitt, supra note 2, at 469.

FN44. For 130 years, hanging was the state’s official method of execution. See ESPY File, supra note 4, at 127. Since rope was an item commonly used to lynch people, a sense of incongruity associated with the state’s “official” method of execution developed because it too called for a rope. In fact, in the context of lynching, someone aptly described the rope as a “white man’s death.” Wright, supra note 35, at 92. For example, one Christmas Day, the day before a black man’s murder trial was scheduled to start, even though “[t]he county judge and prosecuting attorney [were] . . . confident that the law would have punished [the man],” id. at 74 (emphasis added), a mob extracted him from the jail and “hanged him from a tree in the courthouse yard.” Id. (emphasis added). That same week, but in a different part of Kentucky, another black man was removed from the local jail and “carried to the courthouse yard and hanged.” Id. at 75 (emphasis added). Given this longstanding “connection” between hanging and lynching, the hope was that adopting a different method to use for state sanctioned killing would eventually check the strength of the rope’s ability to legitimize lethal violence.

FN45. See Act of March 15, 1910, ch. 38, §1, 1910 Ky. Acts 111.

FN46. Id.

<FN47. See Wright, supra note 35, at 255-56.

FN48. See Electric Chair Used in Kentucky, N.Y. Times, July 9, 1911. Wright, supra note 35, at 275 & n.27.

FN49. Wright, supra note 35, at 194.

FN50. Wright mentions Lockett might also have sexually assaulted little Geneva, but to expedite the process, Lexington officials decided to only indict Lockett on murder. Id. at 256. Documents containing information about the 427 people executed in Kentucky, however, list murder and rape as the capital crimes Lockett was found guilty of committing. ESPY File, supra note 4, at 127; Kentucky Executions, supra note 4.

FN51. Wright, supra note 35, at 195.

FN52. Id. (emphasis added).

FN53. Id. (emphasis added).

FN54. Id. at 195.

FN55. Id.

FN56. Id. at 256 (emphasis added).

FN57. Will Lockett was executed in the electric chair on March 11, 1920. See ESPY File, supra note 4, at 127.

FN58. See Act of March 17, 1920, ch. 163, §1, 1920 Ky. Acts 693; Kentucky Statutes § 1137-1 (1920).

FN59.  See Act of March 17, 1920, ch. 163, §1, 1920 Ky. Acts 693.

FN60. Id. at 693. George Wright recounts occasions when this provision was blatantly disregarded. See Wright, supra note 35, at 256-57. Rainey Bethea’s public hanging in Owensboro, Kentucky on August 14, 1936 attracted thousands of people. Id. at 257-58. It should also be noted that Kentucky was “the last state in which public hangings were conducted.” Id. at 258.

FN61. ESPY File, supra note 4, at 128-29. After the Rainey Bethea fiasco, it was decided John Montjoy and Harold Venison, the last two men who had their death sentences imposed under the 1920 amendment, should still die on the gallows but not in public venues. Wright, supra note 35, at 258. Even though legislation repealing this amendment to Kentucky Statute § 1137-1 was passed and approved in March 1938, see Act of March 12, 1938, ch.131, 1938 Ky. Acts 640, only a few months before Venison’s execution was scheduled, he still had to be executed by hanging, which was done on June 3, 1938. ESPY File, supra note 4 at 129. Electrocution was restored as Kentucky’s sole method of execution. See Kentucky Statutes § 1137-1 (1938). In 1998 Kentucky made lethal injection the state’s second method of execution. Ky. Rev. Stat. § 431.220. However, both methods are only available to people sentenced to death on or before March 31, 1998. Id.

FN62. Strauder v. West Virginia, 100 U.S. 303 (1879); Neal v. Delaware, 103 U.S. 307 (1880).

FN63. Smith v. Commonwealth, 91 S.W. 742 (Ky. 1906).

FN64. Hale v. Commonwealth, 108 S.W.2d 716 (Ky. 1937), rev’d, 303 U.S. 613 (1938) (per curiam).

FN65. Smith v. Commonwealth, 91 S.W. at 742.

FN66. Id.

FN67. Id.

FN68. Hale v. Commonwealth, 108 S.W.2d at 716.

FN69. Id. at 717.

FN70. Id. at 718 (emphasis added).

FN71. Id. at 717.

FN72. Id.

FN73. Id. at 718.

FN74. Hale v. Kentucky, 303 U.S. 613, 616 (1938) (per curiam).

FN75. Id.

FN76. Batson v. Kentucky, 476 U.S. 79 (1986).

FN77. Id. at 79-80.

FN78. See American Bar Ass’n, supra note 10, at 345-378.

FN79. McCleskey v. Kemp, 481 U.S. 279, 319 (1987).

FN81. The Racial Justice Act went into effect on July 15, 1998. Ky. Rev. Stat. § 532.300. More than a decade passed before another retentionist state followed Kentucky’s lead.  In August 2009, North Carolina became the second state to enact a Racial Justice Act for capital cases. See Race and the Death Penalty, Death Penalty Information Center, http://www.deathpenaltyinfo.org/race-and-death-penalty (last visited Nov. 5, 2013). For more information about Kentucky’s Racial Justice Act see Gennaro Vito, The Racial Justice Act in Kentucky, 37 N. Ky. L. Rev. 273, 276-78 (2010).

FN81. See, e.g., Vito, supra note 80, at 279-80; See American Bar Ass’n, supra note 11, at 345-378.

FN82. This is the period of time between the first execution in 1780 and the last one in 2008. See ESPY File, supra note 4, at 121; Marco Chapman, supra note 8.

FN83. Breathitt, supra note 2, at 471, n. 3; EPSY File, supra note 4, at 131. Moss was the last person the state executed prior to capital punishment’s modern era. See supra note 13.

FN84. Breathitt, supra note 2, at 471, n.3.

FN85. Id. The measure, however, was unsuccessful.

FN86. Id.

FN87. Harold McQueen was executed by electrocution on July 1, 1997. He was the first person the Commonwealth executed in more than thirty decades . ESPY File, supra note 4, at 131.

FN88. Kentucky was a non-retentionist state from June 29, 1972 until December 31, 1974 and from July 2, 1976 until December 21, 1976. See supra note 14.

FN89. In 1990 the people of the Commonwealth decided to abolish the death penalty for intellectually disabled individuals. See Ky. Rev. Stat. §§ 532.130, 532.135, 532.140. This is another instance where Kentucky was one of the first jurisdictions to dismantle part of its death penalty practice. See Penry v. Lynaugh, 492 U.S. 302, 334 (1989) (noting that in 1988 Georgia had partially abolished the death penalty in the same way and Maryland had but the law did not go into effect until July 1, 1989).

FN90. Edward Harper Jr. and Marco Chapman, respectively executed in 1999 and 2008, ESPY File, supra note 4, at 131, Marco Chapman, supra note 8, were volunteers, see Information on Defendants Who Were Executed Since 1976 and Designated as “Volunteers”, Death Penalty Information Center, http://www.deathpenaltyinfo.org/information-defendants-who-were-executed-1976-and-designated-volunteers (last visited Nov. 5, 2013), which in some cases is considered tantamount to “suicide by state.” See Michael Blume, Killing the Willing: “Volunteers,” Suicide and Competency,  Death Penalty Information Center, http://www.deathpenaltyinfo.org/documents/BlumeVolunteerArticle.pdf. Currently, Kentucky has 33 condemned inmates. All but one are male. See Kentucky Department of Corrections, Death Row Inmates, http://corrections.ky.gov/communityinfo/pages/deathrowinmates.aspx (last visited Nov. 5, 2013).