LOUISVILLE, Ky. (AP) — Two death row inmates who challenged Kentucky's clemency system lost their appeal Thursday to the state's highest court, which upheld the process by which life-and-death decisions are concentrated in the hands of the governor.
Robert Foley and Ralph Baze are both condemned to die, convicted of killings. They joined together to claim that the governor's absolute discretion in granting clemency without a requirement for hearings could result in arbitrary decisions that violate their constitutional rights of due process.
The Kentucky Supreme Court, in a unanimous ruling, rejected that argument.
In Kentucky, no recommendations or hearings are needed for the governor to decide whether someone should not be put to death. Many states require the decision maker to hold hearings and consider certain evidence before deciding on clemency, the inmates' attorneys had told the court in presenting their case.
"Other states have different approaches, but that fact does not mean that Kentucky's governor-centered approach to clemency violates the Fourteenth Amendment's due process clause," wrote Justice Lisabeth Hughes Abramson on behalf of the unanimous court.
She wrote that there is a presumption the governor "will abide by the mandates" of the state and federal constitutions in any clemency decision.
Kentucky has executed three men since 1976, the last in 2008. The state has 34 people on death row, according to the state Corrections Department. However, the state currently is barred from executing anyone until a judge decides on the legality of the drugs used.
Foley was convicted of six killings in 1989 and 1991. The victims included two brothers. Baze was convicted in the unrelated 1992 shooting deaths of a sheriff and deputy.
Foley and Blaze had initially challenged the clemency system in a circuit court in Franklin County, where their lawsuit was dismissed, triggering the appeal to the Kentucky Supreme Court.
The inmates' attorneys noted differences between Kentucky's clemency system and those of many other states in their arguments.
But Abramson concluded it's "by no means clear" that more formal clemency proceedings in other states have enhanced a condemned prisoner's chances of being granted clemency.
She noted that while Kentucky's governor has "unfettered discretion" as to whether to grant clemency, there must include a statement listing the reasons for the decision. Also, the clemency application and statement must be open to public review, she said.
Abramson also wrote the inmates did not claim to have been victims of an arbitrary clemency system. "Indeed, they are not in a position to make such claims because Foley and Baze have not yet even filed clemency petitions," Abramson wrote.
Kentucky governors have used the clemency power before.
Then-Gov. Paul Patton in December 2003 commuted to life in prison the death sentence of Kevin Stanford, who was 17 at the time of the slaying that led to his conviction. Patton cited Stanford's age at the time of the crime. Then-Gov. Ernie Fletcher did the same for James Earl Slaughter in December 2007, finding his defense counsel so deficient that the attorney didn't know his client's real name.