A federal court denied an appeal from one of Kentucky’s inmates serving decades on death row.
Eighteen judges of the 6th U.S. Circuit Court of Appeals denied an appeal from Benny Lee Hodge, 73, who was convicted in 1986 of killing 23-year-old Tammy Acker and attacking her father, Dr. Roscoe Acker, in Letcher County a year prior. Hodge was sentenced to death for Tammy Acker’s murder and 60 years’ imprisonment for non-capital charges.
A three-judge panel overturned the sentence last year. But in a 14-4 decision issued by the court Wednesday, judges upheld Hodges’ sentence. Kentucky Republican Attorney General Russell Coleman had asked the appellate court to reconsider the case, which it did in a special sitting of all judges on the court.
“We are not deciding the issues in this case on direct appeal. Instead, we review the Kentucky Supreme Court’s decision through the lens of AEDPA (Antiterrorism and Effective Death Penalty Act of 1996) and respect the boundaries of our authority under the statute,” says the opinion, written by Judge John K. Bush, who is from Kentucky and was appointed by President Donald Trump. “That means stepping in only when a state court unreasonably interprets or applies U.S. Supreme Court precedent, or unreasonably determines facts. The Kentucky Supreme Court did neither of those things here.”
Coleman is seeking to restart executions in Kentucky. The state has not carried out a death sentence since November 2008. In 2010, Franklin Circuit Judge Phillip Shepherd blocked the planned execution of Gregory Wilson after finding the lethal injection protocol was inconsistent with state law and lacked safeguards to prevent executing someone who is intellectually disabled or criminally insane. Gov. Matt Bevin later commuted Wilson’s death sentence. Coleman contends regulatory changes have brought the protocol into compliance with the 2010 ruling. But the state Supreme Court last year rejected a filing by Coleman and left the matter with the circuit court. Last week, Shepherd ruled in a case involving Hodge and others on death row 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. “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.”
In a news release about the Hodge decision at the federal level, Coleman called Hodge a “brutal murderer” who “has tried to escape justice, hoping that we would eventually give up and forget about this case” for almost four decades.
Tawny Acker, Tammy’s sister, in a statement thanked Coleman and his staff “for their excellent preparation and presentation to uphold the sentencing of a cold-blooded murderer” before the appellate court.
An attorney for Hodge did not immediately return a phone call seeking comment Thursday morning.
Some Kentucky Republicans have sought to abolish the death penalty. Earlier this year, Rep. James Tipton, of Taylorsville, filed legislation to replace the death penalty with life imprisonment without parole, but it did not receive a committee hearing. However, the GOP-controlled legislature passed an omnibus crime law in 2024 that included expanding crimes that could warrant the death penalty, particularly in cases where a person is convicted of intentionally causing the death of a first responder.
Correction: This story’s headline was corrected to reflect the year Tammy Acker’s murder took place.
This article is republished under a Creative Commons license from Kentucky Lantern, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kentucky Lantern maintains editorial independence. Contact Editor Jamie Lucke for questions: info@kentuckylantern.com. Follow Kentucky Lantern on Facebook and Twitter.
McKenna Horsley covers state politics for the Kentucky Lantern. She previously worked for newspapers in Huntington, West Virginia, and Frankfort, Kentucky. She is from northeastern Kentucky.
