A Comparison of Executions and Death to Life Commutations in Kentucky, 1901–2019

• Author: Gennaro F. Vito,Ed Monahan,Anthony G. Vito
• Date: 01 November 2021
• DOI: 10.1177/00328855211048185
• Published date: 01 November 2021
• Subject Matter: Articles

A Comparison of

Executions and Death to

Life Commutations in

Kentucky, 1901–2019

Ed Monahan

1

, Anthony G. Vito

2

,

and Gennaro F. Vito

3

Abstract

This study examines the administration of capital punishment in Kentucky.

Comparing execution and death to life commutation cases from 1901–

2019, we consider the purpose of the commutation process and its utiliza-

tion considering offender-victim relationships and the severity of the homi-

cide as determined by the Barnett Scale. While a higher score on the Barnett

Scale predicted execution, there remained a pattern of racial discrimination

between the two decisions.

Keywords

capital punishment, commutation, Barnett Scale, racial discrimination

Introduction

Mercy for criminal conduct and capital crimes has been central to civilization

from its beginning. From biblical times through ancient Greece and the English

monarchy, clemency has been afforded to a wide range of citizens - the wrongfully

1

Public Advocate, Louisville, KY, USA

2

Ball State University, Muncie, IND, USA

3

University of Louisville, Louisville, KY, USA

Corresponding Author:

Gennaro F. Vito, University of Louisville Department of Criminal Justice, 203 Brigman Hall, 2301

South Third St., Louisville, KY 40292, USA.

Email: Gennaro.vito@louisille.edu

Article

The Prison Journal

2021, Vol. 101(5) 591–608

© 2021 SAGE Publications

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/00328855211048185

journals.sagepub.com/home/tpj

convicted, those receiving disproportionate sentences, and those guilty

beyond all doubt.

Clemency existed in ancient Greece, where the Ecclesia (assembly), as the

supreme organof power in the Greek democracy,controlled the dispensationof

pardons. Thus, the Ecclesia was empowered to annul the verdicts of the

Dicasteries (courts). The practices and procedures employed by the Ecclesia

appear remarkably similar to modern American approaches to clemency.

Prisoners appeared before the assemblyto plead for mercy and friends testif‌ied

on their behalf.Items like disclosure of new evidence that cast doubt uponguilt,

violations of due process (as understood at that time),and the popularity of the

prisoner were the basis for granting pardons (Bonner & Smith, 1931).

In England,the Crown had the power to confer clemencytoameliorate injus-

tice, to grant mercy, and to correct f‌laws in the penal system. In America, colo-

nial governorsexercised clemency. However, the modelwas abandoned in fear

of abuse by a centralizedauthority and transferred to legislatures,governors, or

a combinationthereof (Acker & Lanier, 2000).By its very nature, the clemency

decision is political because it addresses factors courts are unable to consider

when reviewing capital sentences. When it is sought, the execution process

halts until the clemency decision is made (Leavy, 1981, pp. 897–898).

Kobil (2003b, p. 674) def‌ines clemency as “leniency or mercy in the exer-

cise of authority or power.”Clemency is considered an act of grace, but it is

also a quasi-judicial function that provides a f‌inal but standardless review of a

death penalty case (Bedau, 1990–91, p. 257). Clemency includes: 1)

Reprieve: stays of execution of the death sentence for a specif‌ied period; 2)

Commutation: a mitigation of a death sentence with an imposition of a life

sentence (with or without possibility of parole); and 3) Pardon: a decision

that invalidates, eliminates and nullif‌ies the death sentence and releases the

defendant to society.

Grounds for granting clemency include (Bedau, 1990–91, pp. 260–261):

1. Substantial doubt about the guilt of the offender –innocence is

established.

The diminished mental capacity of the offender or other mitigating

circumstances –“blameworthiness”(Radelet & Zsembik, 1992–1993).

2. Disparate sentencing of the offender resulting in a comparative injustice

(accomplice sentenced to death while the “triggerman”receives a lesser

sentence) –“equity (Radelet & Zsembik, 1992–1993).”

3. Evidence the death sentence is based upon extra-legal factors, such as

the race and gender of the offender or the victim.

4. Diminished culpability for certain crimes committed out of necessity,

coercion, or adherence to moral principles.

592 The Prison Journal 101(5)