McQueen v. Parker

STUMBO, Justice,

dissenting.

I must dissent from this opinion and order denying Appellant the opportunity to be heard on what I consider to be a very important constitutional challenge to the use of the electric chair as the means by which he will *228be executed. In the rush to see that this long-delayed execution actually takes place, we are taking refuge in the safety of precedent containing only the slightest of consideration to our own constitutional provision forbidding the imposition of cruel punishment. Ky. Const. § 17. Further, in none of the cases cited for the proposition that death by electrocution is not violative of Section 17 was there any attempt by the appellant therein to present to the trial court the type of evidence that is sought to be introduced in this case. We are taking this monumental step without the benefit of an evidentiary hearing. In so ruling, we abdicate the responsibility imposed upon us by our own oath of office: to see that both the laws enacted by the legislature and the requirements of our Kentucky Constitution are honored in the courts of this Commonwealth.

Appellant does not here challenge the imposition of the death penalty, nor does he allege in this action that his case was an inappropriate one for that sentence. His charge is that as medical science has progressed and our understanding of the pain mechanisms of the body has increased, it has become increasingly clear that death by electrocution is not always the immediate nor the pain-free process that it has been represented to be. A number of affidavits in support of Appellant’s declaratory judgment action were filed and appear to represent the opinions of specialists in neurophysiology and neuropathology and the effects of electrical shock on brain function. Other specialists describe electrocution’s effect on the body. Were we not faced with an imminent execution, I do not doubt that Appellant would have been granted an evidentiary hearing since he has clearly set out a colorable claim.

We reject this possibly meritorious claim because of the time at which it was filed. Yet I believe that it is only now, with the signing by the Governor of the executive order setting the date of execution, that this claim has ripened and the right to present this particular challenge is upon us. Until the death warrant was signed and a date fixed, Appellant knew only that he would at some point be executed as provided by law. His judgment does not mandate any particular means. Given the number of states that adopted alternate methods of execution as Appellant’s appeals progressed in the state and federal courts, there could be no certainty that when the day did arrive, the sole means of execution in this state would still be electrocution.

As the predecessor to this Court noted in Workman v. Commonwealth, Ky., 429 S.W.2d 374, 377 (1968):

What constitutes cruel and unusual punishment has never been determined with any degree of exactness by the courts. The reason for this is probably because the concept changes with the continual development of society and with sociological views concerning the punishment for the crime. There is no doubt but that the courts of England in Blackstone’s day would have accepted means of punishment which would be completely intolerable in our time.

An attachment to Appellant’s pleading below notes that in 1981, the year that Appellant was convicted of his crimes and the judgment ordering death was entered, all executions carried out in this country were by electrocution. In the years since, the percentage has steadily declined, with lethal injection becoming the preferred method. Why this is so cannot be said with any certainty without the use of an evidentiary hearing. Something has changed in society’s attitudes toward the electric chair and that should be investigated. This, of course, is why today’s order is so very wrong in finding that this issue is precluded by its having been raised in the direct appeal. By its very terms, Workman mandated the result reached at the time of Appellant’s conviction. Under Workman, we do not examine the means of punishment by what was deemed appropriate when the punishment was selected and imposed; rather, we look to see whether a colorable case can be made that it is likely that society’s views on this method of execution have changed. An evidentiary hearing to explore this issue should be held before the imposition of this most final and irrevocable of penalties is imposed.

I take little comfort in the fact that this sort of challenge has been rejected by a few *229other courts after the consideration of expert testimony of the type Appellant seeks to introduce. Those jurisdictions are not Kentucky and may not have the rich tradition of zealously guarding the protections provided by our own Constitution. See Commonwealth v. Wasson, Ky., 842 S.W.2d 487 (1992). As Chief Justice Stephens so eloquently stated:

The judiciary has the ultimate power, and the duty, to apply, interpret, define, construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action serves as a check on the activities of another branch of government or when the court’s view of the constitution is contrary to that of other branches, or even that of the public.

Rose v. Council for Better Educ., Inc., Ky., 790 S.W.2d 186, 209 (1989).

Unlike the majority, I would not leave to a federal court in Louisiana or Alabama an issue that is solely the prerogative of this Court. I would grant the stay, reverse and remand to the Lyon Circuit Court for a full evidentiary hearing so that this case can be considered in the orderly manner so desired by the majority opinion.

STEPHENS, C.J., joins in this dissent.