A federal court denied an appeal by a Kentucky inmate serving decades on death row.
In 1986, Benny Lee Hodge, 73, was convicted of killing 23-year-old Tammy Acker and attacking her father, Dr. Roscoe Acker, in Letcher County. His appeal was denied by 18 judges on the 6th U.S. Circuit Court of Appeals.
Hodge was sentenced to death for Tammy Acker’s murder and 60 years in prison on non-capital charges.
A three-judge panel overturned the sentence last year. In a 14-4 decision on Wednesday, the court upheld Hodges’ sentence. Kentucky Republican Attorney General Russell Coleman had requested that the appellate court reconsider the case, which it did during a special sitting of all judges on the court.
“We will not decide the issues in this case on direct appeal. Judge John K. Bush, appointed by President Donald Trump, writes that the Kentucky Supreme Court’s decision should be reviewed through the lens of AEDPA (Antiterrorism and Effective Death Penalty Act of 1996), respecting the statute’s boundaries.
“That means intervening only when a state court interprets or applies U.S. Supreme Court precedent incorrectly, or when facts are determined arbitrarily. “The Kentucky Supreme Court did neither of those things in this case.”
Coleman wants to restart executions in Kentucky. The state has not carried out a death sentence since November 2008. In 2010, Franklin Circuit Judge Phillip Shepherd halted Gregory Wilson’s execution after determining that the lethal injection protocol violated state law and lacked safeguards to prevent the execution of someone who is intellectually disabled or criminally insane.
Governor Matt Bevin later commuted Wilson’s death sentence. Coleman claims that regulatory changes have brought the protocol into compliance with the 2010 ruling. Coleman’s filing, however, was rejected by the state Supreme Court last year, and the case was referred to the Circuit Court. Last week, Shepherd ruled in a case involving Hodge and other death row inmates that Coleman’s motion “is not ripe for adjudication.”
“The Commonwealth has not shown that the 2010 injunction is preventing it from taking any specific action to implement the death penalty,” Shepherd wrote in an email. “If and when the Commonwealth shows it is actively seeking to take specific steps to implement the death penalty with regard to any specific death sentenced inmate, the Commonwealth should present that matter to the Court, and the Court will address whether the injunction wrongfully prevents the Commonwealth from taking those specific actions, or whether the injunction even applies to the Commonwealth’s actions.”
Coleman described Hodge as a “brutal murderer” who had been attempting to avoid justice for nearly four decades.
Tammy’s sister, Tawny Acker, thanked Coleman and his staff “for their excellent preparation and presentation to uphold the sentencing of a cold-blooded murderer” before the appellate court in a statement.
An attorney for Hodge did not immediately respond to a phone call seeking comment Thursday morning.
Some Kentucky Republicans want to abolish the death penalty. Rep. James Tipton of Taylorsville proposed legislation to replace the death penalty with life imprisonment without parole, but it was not heard in committee.
In 2024, the GOP-controlled legislature passed an omnibus crime law that expanded the crimes that could lead to the death penalty, particularly for intentionally causing the death of a first responder.
