Blame The Supremes For Benny Lee’s Death

It happened in Kentucky, which was the first in a long line of legal mistakes.  The human mistakes happened much earlier.  Benny Lee Hodges was a horrible human being, though he didn’t start out that way.


Mr. Hodge was convicted of murder, robbery and burglary. He and two others posed as F.B.I. agents to get into a doctor’s home; stole guns, jewelry and around $2 million of cash; strangled the doctor until he was unconscious, though he did not die; and stabbed his daughter to death. Mr. Hodge’s childhood was not as brutal as the murders he attempted or perpetrated, but it was horrible by any measure.

Parents on drugs, beatings, abuse.  The sort of stuff that usually turns a baby into a killer.


When Benny Lee Hodge tried to defend his sisters and mother, his stepfather kicked the boy, beat him with a belt and made him watch as he killed the boy’s dog. This relentless abuse, two psychologists said, was “ruinous” to the boy’s development.

After being convicted of murder, the time came for mitigation.  Too bad Benny Lee’s lawyer couldn’t be bothered.  And so death was the sentence.  That can happen even if evidence in mitigation is fully presented, sure, but then, the duty is to present it and leave it to the jury. 

The Commonwealth of Kentucky’s Supreme Court agreed that the lawyer was ineffective (as if there was any question), but  then responded with the legal equivalent of “meh.”



But it offers virtually no rationale for the premeditated, cold-blooded murder and attempted murder of two innocent victims who were complete strangers to Hodge. Many, if not most, malefactors committing terribly violent and cruel murders are the subjects of terrible childhoods. Even if the sentencing jury had this mitigation evidence before it, we do not believe, in light of the particularly depraved and brutal nature of these crimes, that it would have spared Hodge the death penalty.

Who needs a jury when the Kentucky Supreme Court can divine what they would have done anyway? And they decided that Benny Lee needed killing, because, as the court concluded, most terribly violent malefactors (that’s murdering scum, for you non-lawyers) were the subject of terrible childhoods. 

There are two things a court can do with this notable, and largely correct, observation. Ignore the things that breed a murderer and deal only with the ultimate outcome, which means ignoring the creation of a murderer in favor of killing the murderer for murder and getting home to dinner on time. 

There are a great many people who don’t care whether someone is a natural-born killer (which would make a great movie title) or raised in such a horrifically dysfunctional family that they were so psychologically impaired that they never had a chance at normalcy.  There is no point in arguing with such people, as thinking makes their head hurt and takes time away from watching college football, an ironic pastime given that they root for places they’ve never been.

But the good news is that the law of these United States is that death can’t be imposed unless a jury, after hearing aggravating and mitigating factors, decides so. The mitigating factors don’t have to explain the crime, but rather explain the person who committed the crime.  After that, it’s up to a jury of one’s peers, assuming peers means people who are nothing at all like the defendant.

And so Benny Lee’s lawyers sent a bunch of papers to Washington, to the Supreme Court which held the death penalty constitutional only if and when the law was fully respected, because death is different.  And the Supremes said “meh” too. Except Justice Sonia Sotomayor:



The Kentucky Supreme Court’s opinion is plainly contrary to these precedents. The evidence of Hodge’s brutal upbringing need not have offered any “rationale” for the murder he committed in order for the jury to have considered it as weighty mitigation. It would be enough if there were a “reasonable probability” that, because of Hodge’s tragic past, the jury’s “reasoned moral response” would instead have been to spare his life and sentence him to life imprisonment instead.


More fundamentally, the Kentucky Supreme Court appears to believe that in cases involving “violent and cruel murders,” it does not matter that the “malefacto[r]“had a “terrible childhoo[d]“; the jury would return a death sentence regardless.


Perhaps if the court had afforded proper consideration to the mitigation evidence, it still would have reached the same result; it might have found no”reasonable probability” that the jury would have weighed Hodge’s difficult past more heavily in its moral calculation than the callous nature of the crime and Hodge’s history of imprisonment and escape. But, giving full effect to the mitigation evidence, the court may well have concluded that the story of Hodge’s childhood was so extraordinary,”there is a reasonable probability that at least one juror would have struck a different balance” had the jury known. A “reasonable probability” is only “a probability sufficient to undermine confidence in the outcome.”

But no jury will ever hear about Benny Lee’s miserably life, where the murder of Tammy Acker, stabbed more than a dozen times with a kitchen knife, began.  And yet the death penalty, the ultimate punishment that was never supposed to happen because it would be unconstitutional to execute a person without all the assurances of adherence to the Constitution, things like effective assistance of counsel. the ability to present evidence in mitigation and the right to have it determined by a jury, were afforded.

The law in theory sounds minimally acceptable. Unless nobody actually cares enough to make sure it happens the way the books say it should.  And most people will hear about the awful crimes Benny Lee committed and just say “meh” too.  When he gets executed, they won’t care because they will all be watching college football.

But as Justice Sotomayor, who took the time to write about the denial of cert notes, even Benny Lee gets the benefit of the Constitution.  Too bad she couldn’t muster enough interest on the Court to back her up, given that this case is a slam dunk for summary reversal and remission. As much as Benny Lee’s crime can be traced back to his birth, and his death will be traced back to his ineffective counsel, the Supreme Court gets the blame for his execution. They could have done their jobs but couldn’t be bothered. 

Maybe the justices are too busy writing books, giving interviews or pondering big political issues to have the time to do law.  And after all, it’s just another execution and he did commit the murder. That’s enough in America, really.








6 comments on “Blame The Supremes For Benny Lee’s Death

  1. Alex Bunin

    When a state’s highest court gets settled SCOTUS precedent wrong at the cost of a human life, SCOTUS has an obligation to step in. I like Justice Sonia. She is a good person.

  2. Andrew

    I realize that what I think doesn’t matter in the slightest — and, yet, I’m still commenting — but every time I see anything by or about Justice Sotomayor, it strengthens my opinion that she is easily the best Justice on the Supreme Court. I wish we had eight more like her.

  3. SHG

    Exactly. This was one they couldn’t walk away from as if it wasn’t their job. But don’t you wonder why Justice Kagan is nowhere to be found? I do.

  4. Bruce Coulson

    Clearly, juries are superfluous in these matters. If judges can determine what a jury would rule, then why call anyone for any sort of jury duty at all? That would leave a lot more time for watching football and drinking beer. It would save the State a lot of time and money as well.

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