THE ADVOCATE The Magazine of the Kentucky Department of Public Advocacy Subsidized in part by private donations. KRS 31.080

Representing 70,000 Poor Kentucky Citizens Volume 14, #2 February, 1992

OUR CONSTITUTION REQUIRES:

adequate funding of Kentucky’s indigent criminal defense and Revision of KRS Chapter 31

Celebrating the 201st anniversary of our U.S. Bill of Rights on December 15, 1992 Celebrating the 101st anniversary of our KY Bill of Rights on September 28, 1992 counsel

THE VALUES OF KRS CHAFFER 31 PROPOSED REVISIONS: Quality Legal Representation IN THIS We recognize &t the two most important things to us are our 4fe and liberty. It is important to express clearly the public policy of insuring that the constitutional right of ISSUE counsel is honored for persons in Kentucky who cannot afford legal counsel and who have their life or liberty at risk becauseof a law enacted by government. Quality representationmustbe provided. "The objective in providing counsel should be to assure that quality legal representation is afforded to all persons eligible for ABAStandards forCriminal Justice, Providing DefenseServices, Standard 5-1.1 1990. Interview with Ray Corns, Deputy Public Advocate Just as our judicial needs are met by full-time judges and full-time judicial staff across the state, so too defense servicesfor the indigent should be provided by full-time public 3 advocates and staff dedicated to full-timeprofessional service to poor clients. Letter From William R. STATE OBLIGATED TO PAY: The state is legally obligated to provide for indigent Jones, DPA Commission criminal defendants’ constitutional right to counsel. See, e.g., Gideon v. Wainwright, Chair 4 372 U.S. 335, 83 S.Ct. 792, 92 L Ed. 2d 799 1963; State Ex Rel. Stephen v. Smith, 747 P. 2d 816, 835-36, 850 Kan. 1987. "Since the providing of counsel for indigent defendants in criminal prosecutions in the state courts is an obligation imposed on the Indigent Defense Needs to state by the constitutions it would appear that the payment of reasonable compensation Catch Up with Today’s Re to such counsel would be in thecategory of an essential governmental expense." Jones alities v. Commonwealth, 457 S.W. 2d 627, 632 Ky. 1970. 5 In Kentucky the issue of whose duty it is to fund counsel was settled in Bradshaw v. Ball, 487 S.W. 2d 294, 298 Ky. 1972. Kentucky attorneys cannot be forced to represent Development of DPA’s Pro indigent criminal defendants without rea posed Revision of KRS sonable compensation sincc to do so Chapter 31 would be "a substantial deprivation of 7 property and constitutionally infirm." Id. The Advocate is a bi-monthly publication at 297, 298. of the Department of Public Advocacy, an Political and Professional In independent agency within the Public Piotec This caseholding combined with the fact dependence don and Regulation Cabinet. Opinions ex 8 pressed in articles are those ofthe authors and that Kentucky’s criminal justice systemis do notnecessarily representthe views ofDPA. a statewide program with a full-time, The Advocate welcomes correspondence on state-funded judiciary makes it clearlythe Fees to Appointed Counsel subjects covered by it. If ‘ou have an article stale’s duty to fund a statewide public ow readers will find of interest, type a short 9 outline or general description and send itto the advocacy program. As stated in Brad Editor. shczw v. Ball, supra: Attorney Fees and Case Copyright 1991, Department of Public Ad ...it is the duty of the legislative depart Maximums vocacy. All rights reserved. No part may be ment to appropriate sufficient funds to reproduced without wntten permission from 11 DPA. Permission for separately copyrighted enforce the laws which they have enact articles must be obtained from that copyright ed. Bradshaw, supra, at 299. Legislative Information holder. The American Bar Association has ad 12 EDITORS dressed the need of government to prop erly fund legal representation. The fund Funds for Resources Edward C. Monahan, Editor 1984- Present ing must be full funding for quality serv 13 Erwin W. Lewis, Editor 1978. 1983 ice: Cris Brown, Managing Editor, 1983- Present Tona Rhea, Graphics, Layout & Design Government has the responsibility to Clinical Neuropsychology fund the full cost of quality legal repre 14 Contributing Editors senta all eligible persons.... What Every Criminal De Linda K. West West’s Review ABA Standards for Criminal Justice, Allison Connelly Post-Conviction Providing Defense Services 1990, fense Attorney Must Know Barbara Hoithaus Juvenile Law About the Federal Guide Steve Mirkin Death Penalty Standard 5-1.6, Funding. Donna Boyce 6th Circuit Highlighl lines. Ernie Lewis Plain View At its 1991 Annual Meeting, the ABA 16 Dan Goyette Ethics passed a resolution recognizing "that the Rob Riley In the Trenches highest priority of thebench and bar must David Nlehaus Evidence be to promote improvements in the Letter to the Editor Dave Norat Ask Coirections Mike Williams F.Y.I. American system of justice by ensuring 19 George Sornberger Stuight Shooting balanced and adequate funding and timely access to the entire justice sys Imbalanced Budget Cuts tem." Department ofPublic Advocacy 20 1264 Louisville Road Frankfost, KY 40601 EVOLUTION OF REVISIONS: The 502 564-8006 proposed revisions of KRS Chapter 31 Judicial Sentencing HB 125 800 582-1671 have evolved out of these fundamental 21 FAX # 502 564-7890 values. Ed Monahan

FEBRUARY 1992/ The Advocate 2 JUDGE RAY CORNS, DEPUTY PUBLIC ADVOCATE

Editor’sNote: Public Advocate, Paul Relate your professional back Any other thoughts. F. Isaacs resigned onDec. 31,1991 We ground. had planned to publish an interview I have been very pleasantly surprised with Paul F. Isaacs. As it was re -Legal Advisor - GovernorsCombs and by the devotion and dedication of so ceivedby the time wewent to press, we Breathitt many individuals to the mission of will publish it next issue. DPA. This is really encouraging, espe -Assistant Attorney General cially, when it exists in difficult finan Welcome to DPA. How do you feel cial times. about being here? -Chief Legal Counsel, Kentucky I only wish that this type of assiduous I enjoy the challenges confronting the Department of Education devotion to duty was as prevalent in all agency and working with the truly -Juvenile agencies of state government. dedicated individuals, who give so Judge much for so little in monetary return. -Commonwealth Attorney How did you come to be appointed -Circuit Judge Deputy Public Advocate? What are your goals asyou lead DPA Paul Isaacs called and inquired if I through these difficult times? would like to be Deputy Public Advo cate. Full funding, improve morale, establish good communication practices. Leadership How does DPA funding compare to other criminal justice agencies and 1989 Poll of Kentuckians otherstate government agencies? Should Death Penalty Laws Grossly underfunded. Guarantee No Racial Bias in Application of Death Penalty? The DPA Public Advocacy Commis Ultimately a genuine leader is not a sion is proposing a revision of KRS searcher of consensus, but a molder of Chapter 31 to meet the funding and 92% consensus. Onsome positions, coward constitutional problems noted In ice asks the question, "Is it safe?" Ex Lavft v. Brady? Your views of the pendiency asks the question, "Is it poli proposed revision. tic?" And vanity comes along and asks Support strongly. the question, "Is it popular?" But con science asks the question, "Is it right?" Do you want to lead DPA long-term? And there comes a time when one must take a position that is neither safe nor -I plan to apply for the position of politic nor popular, but he must do it Public Advocate. because conscience tells him it is right. And this is where, I believe, we must What have you identified as prob lems in the agency that need to be 2% go, as ministers of the gospel. changed? -Treat all staff alike. -Need to have DPA accepted as a full Agree Disagree partner in the criminaljustice system. Martin Luther King, Jr. -Ultimately, make salaries commen surate with the services provided.

February 1992/the Advocate 3 statutes

COMMONWEALTH OF KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY PUBLIC ADVOCACY COMMISSION 1264 Louisville Road 502 564-8006 Perimeter Park West Frankfort, Kentucky 40601 MEMBERS: William R. Jones, Chairman John Batt Robert W. Carran Susan Stokley-Clary Jesse Crenshaw Robert C. Ewald Lambert Hehi, Jr. Denise Keene Susan Kuzma Currie Milliken Dear Friends of PublicAdvocacy: Paul E. Porter Martha A. Rosenberg For a long time it has beenapparent that thereare severeproblems in Kentucky with the way in which we attempt to deliver defense services to poor people who have been accused of crimes. Aside from the requirements ofdue process and equal protection under theUnited States and the Kentucky Constitutions, the Kentucky General Assembly has mandated thai certain defense services be provided at government expense. Lackof adequate funding is certainly central to the problems which public defenders in Kentucky experience, and that problem has increased every year the Department of Public Advocacy has been in existence. Real dollars have shrunk, and the legislature continues to increase theresponsibilities of the Department without consideration of the fiscal impact of their actions upon the Department.

But there are otherproblems in the structure of the statutes which provide for the manner of delivery of defense services to the poor defendant. Constant disputes arise as to which entity is responsible for payment of fees above statutory levels themselves so low as to be absurd, and the other expenses associated with adequate representation. Thepresent statutes provide for different kinds of systems for delivery of defense services, with varying levels

of funding occuring. Recently, in Lavit v. Brady, Ky.App , - S.W.2d - Nov. 8, 1991, a panel of the Kentucky Court ofAppeals stated, We do not know how the legislature expects the state to fulfill its obligation to provide indigent defendants with competent, effective representation, especially in capital cases, with the meager limits of compensation it is authorized to pay. Additionally, we have serious doubts concerning the constitutionality of the total defender scheme under KRS Chapter 31 because of its lack of uniformity, lack of adequate state funding, and the special legislation of some of the

Because of these problems, the Public Advocacy Commission requested the Public Advocate to appoint a committee to study the various statutes and to make recommendations for a better structure. The result of the intense effort on the part of that committee was a redraft of Chapter 31 of the KRS. Among other things, this proposed statute attempts to give the Public Advocate the necessary independence to be a real advocate for the Department’s needs and to eventually provide for the delivery of defense services by full-time defenders on a uniform basis throughout the Commonwealth.

Following is a comprehensive analysis of this proposed Chapter 31 prepared by Ed Monahan, Assistant Public Advocate and Editor of the Advocate, who chaired the committee. The Commission has voted to attempt to have it enacted into law. It represents an ideal. We know that there is opposition to the proposal among influential legislators. This should not deter us from attempting to achieve this ideal. I urge each of you to carefully consider this proposal. I hope that you can support it and that you will contact your stale Senators and Representatives to urge their support when it is introduced in the legislature.

Sincerely yours, /b WiljiamR.., nes Chair Public Advocacy Commission

February 1992/the Advocate 4 INDIGENT DEFENSE NEEDS REVISING

The Department of Public Advocacy has the serious doubts about theconstitutional sponsible for funding the costs of ex witness and for any costs of attor duty to represent persons accused of commit ity of the statutory scheme of fees and, pert in particular, the caps. We do not know ney fees above the state allotment. Un ting a crime but too poor to hire an attorney. how the legislature expects the state to der the DPA proposedrevisionof KRS Currently, 70,000 persons across the state are fulfill its obligation to provide indigent Chapter 31, counties would have no being represented each year. defendants with competent, effective funding obligations. l’his is consistent representation, especially in capital with Kentucky’s criminal justice sys cases, with the meager limits of com tern becoming a state operation, e.g., STATEWIDE SYSTEM CREATED pensation it is authorized to pay. funding for thejudiciary. ‘This will rem edy the unfair fmancial burden cur The Kentucky statewide public defender sys Additionally, we have serious doubts rently borne by the counties. This tem was created by the 1972 Legislature after concerning the constitutionality of the change will require new money. significant, repeated legal challenges to the total defender scheme under KRS Cha pter 31 because of its lack of unifor 3. PROFESSIONAL AND POLITI coercion of members of the Kentucky bar to mity, lack of adequate state funding, CAL INDEPENDENCE OF PUB represent indigents charged with a crime. The and the special legislation of some of LIC ADVOCACY SERVICES. This state has the duty to professionally run and the statutes. However, in this regard is consistent with the direction in Ken there were no findings by the trial tucky. Examples are the Department of adequately fund a public defender system. judge, although a certain amount of the Education and the Lottery Commis Bradshaw v. Ball, 487 S.W.2d 294 Ky. arguments on appeal addressed the sion. The American Bar Association 1972. "It is clear that Bradshaw mandates constitutionality of these statutes. It is Standards view professional andpoliti our of public defender two things: the state must furnish indigents impression that, if there is going to cal independence be aconstitutional attack upon thepres systems as essential. It is proposed that competent counsel; and, counsel so furnished ent defender system, the procedure this be accomplished by a making the must be paid just compensation." Lavit v. would have to follow the path of the Public Advocate appointed by the Pub school reform case, Rose v. Cowrcilfor lic Advocacy Commission, not the Brady, Ky. App., - S.W.2d_ Nov. 8,1991. Better Education, mc, Ky., 790 S.W.2d governor, b making the public advo 186 1989 cate a "for good cause" employee in THE STATUTE NEEDS UPDATING Lavii, stspra. steadof non-merit.,c selecting the Pub lic Advocate on the basis of compe Since its 1972 enactment, thepublic advocacy NEEDED CHANGES tence and merit; and d placing some statute, KRS Chapter 31, hasbeen amended in limits on the Governor’s discretion on The Department of Public Advocacy has a a piecemeal fashion 12 times. who can be appointed to the Public proposed revision of KRS Chapter 31 which Advocacy Commission, e.g., requiring some members to be confirmed by the In the two decades since the state public de has the support of the public defendercommü General Assembly. These changes will fender system was established by the legisla nity in Kentucky. It has as its major features: require nominal new funding, perhaps ture, many significant changes have occurred several thousand dollars. 1. DELIVERY OF PUBLIC ADVO nationally and in Kentucky. KRS Chapter 31 CACYSERVICES BY FULL-TIME 4. REASONABLE HOURLY AT needs to be revised as a whole to account for ATTORNEYS ACROSS THE TORNEY FEE RATES AND FEE the last 20 years of change and to insure that STATE. This is the recommendation CAPS, ESPECIALLY IN CAPITAL CASES. When the full-time system representation of indigents charged with a of the American Bar Association. It is the national trend, and is recognized as must turn to private attorneys to handle crime in Kentucky is fully adequate in the the best method of providing fully ade cases due to ethical or legal conflicts or 1990s and beyond. quate, cost-efficient, cost-controlled other disqualifying reasons, the hourly services. It is also consistent with the rates and maximum fees must be equi table with current economic realities. ON THE BRINK AGAIN trend in Kentucky, e.g., full-time judges. This change will require new The proposal is that the rates and the raised to level that accounts The combination money. caps be a of these many factors have for the inflation of the last 20 years. It placed indigent criminal defense at the point 2. PUBLIC ADVOCACY SERV is also proposed that reasonable fee of being inadequateand unconstitutional. The ICES FUNDS FOR ATTORNEYS maximums be created for capital cases, which arenot currently provided for in Kentucky Court of Appeals has recently set AND EXPERTS FUNDED EN TIRELY BY THE STATE. Cur the statute. This is inevitably required off the warning siren: rently, the state provides most of the by litigation which led the Court of funding for the public defender system. Appeals to nile in November, 1991 that This is not to say that we do not have However, county fiscal courts are re a capitalcase automatically is a special

February 1992/the Advocate 5 circumstance case under KRS Chapter for capital cases under Lavit, supra, is ex 31 so as torequire attorney feecompen pected to require $280,000 per year. It is esti 1992 FUNDING PRIORITIES sation beyond the statutory maximums: mated that $6.2 million is needed over the 7 We have no reluctance in holding that a year period of implementation to establish 17 capitalmurder case is "ipsofacto" a special circumstance within themeaning of the stat- field offices and bring the rest of the stateinto Inc so as to allow for additional legal defense the full-time, state-funded and state-run sys compensation. Failure to so construe renders the "special circumstances" exception tem. This figure is the cumulative additional meaningless. cost over the 7 year period compared to what Lavit, .cupra. it would have cost to continue running the The court also observed inLavit, supra, system with its present non-full-time struc that: "...it behooves us to comment that ture. the sums are not commensurate with - services professional of the kind de At its 1991 Annual Meeting, the ABA passed manded by the nature of a capital mur der case."This will require new money. a resolution that recognized "that the highest priority of the bench and bar must be to pro 5.APPOINTMENT AND RECOUP mote improvements MENT. It is recommended that the in the American system process of appointing public defenders of justice by ensuring balanced and adequate 18.2 MILLION IS THE UKSPORTS be upgraded to insure that those who funding and timely access to the entire justice BUDGET can afford counsel are not being repre system." sented by the Public Advocacy system $13.3 MILLION IS THE U OF L with state money, and to require all SPORTS BUDGET money recouped from persons repre FUNDING PERSPECTIVE sentedbyapublicadvocatebereturned to the state general fund as arefees and The total additional state dollars of $7.4 mil fines generated by the judicial system. lion are the equivalent needed to build but 3 These changes will notrequire any new miles of a Kentucky two-lane road, funding. or build and service 74 prison cells in Kentucky. The NEEDED FUNDING full amount of this funding would be incre mentally reached overthe next 7 years. Yes, some of these requests contemplate in creased funding from the General Assembly. As a point of reference, in FY 91 the state However, the funding increases are modest in funding for Commonwealth’s Attorneys was light of Kentucky’s historical underfunding of $11.3 million, for County Attorneys it was Sl2 legal servicesfor theaccused. Cuirently, Ken million, and for the Attorney General it was tucky indigent criminal defense efforts re $7.5 million. This totals $30.8 million in ceives .1 percent of thetotal state budget, and state funding for the prosecution. DPA re 2 percent of thefundingfor Kentucky criminal ceived $10.8 million in FY91. This 3-1 fund justice agencies. Its funding ranks at the bet- ing disparity creates contiEutionaJ deficien tom nationally. cies. How much more money is needed to fund the IN OUR COMMON INTERESTS entire pmposal? In FY91 county governments contnbuted $864,845 to the present full-time While funding public defender services contract system. Boyd, Fayette and Jefferson and insuring the legal representation is counties. Asthese 3 counties are bansiIioned professional are not popular causes, it is to state full-time systems the dollars contrib ‘in the public interest that the administra uted by thecounties will have to be allocated tion of criminal justice proceed fairly, im by the state. partially, expeditiously and efficiently.’ Bradshaw, supra, at 298. We must pro It is estimated that an additional $1.9 million vide competent representation to fellow is needed for the 1992-94 biennium to begin citizens who have their tile or liberty at reduction of caseload inequities and to bring risk. the Fayette and Jefferson County offices into salary parity with the full-time state system. Currently, fiscal courts are funding expert wit ness fees and other ancillary resources at the level of $60,000 per year. Increased funding

February 1992/the Advocate 6 DEVELOPMENT OF DPA’S PROPOSED REVISION OF KRS CHAPTER 31

COMMITMENT At the instigation of the Public Advocacy Core Committee repeatedly solicited sugges COMMISSION’S interested persons Commission, a committee was formed to de lions and reactions from On October 4, 1991 the Public Advocacy by the statute in both its velop changes to KRS chapter 31, the public and those affected Commission approved submission of the proposed form. We asked the di advocacy statutes. -- presentand Chapter 31 proposal to the 1992 General As of the Capital Trial Unit, thePost-Con rectors sembly. The Commission is dedicated to pro THE COMMiTTEE Appellate Branch, the viction Branch, the viding the best possible public advocacy sys Capital Resource Center, and those dealing The committee consisted of: tem. with involuntary commitment issues to "con Robert Carran sult with persons in your area and consult with ON TO QUALITY Administrator, Kenton County Public De anyone nationally to get the best advice" and REPRESENTATION Member the committee with ideas and propos fender System; provide The proposal is a product of the considerable Public Advocacy Commission als for needed or desired changes in Chapter cooperative effort invested in this process by 31. Suggestions from the Public Advocate and the members of the Committee and those in Joe Barbierl Public Advocacy Commission were also so terests they represent. There is a firm agree Director, Fayette County Legal Aid licited andreceived. ment among all concerned that therecommen Dan Goyette the effec The Core Committee received literally hun dations are critically important to Jefferson District Public Defender dreds of suggestions and proceeded to review tiveness of the statewidepublic defendersys Past President, Louisville BarAssociation and consider every proposal which was sub tem. lie document developed can serve as a blueprint for quality legal representation for J Vincent Aprile, H mitted. The Committee circulated 9 drafts of proposed statutory changes for reaction and Kentucky’s poor-accused into the 21st cen DPA General Counsel - and revising po tury. Member, NLADA Board of Directors criticism, often reconsidering sitions. Debate on the Committee and through For a copy of the proposal, contact Ed Edward C. Monahan the submitted suggestions wasopen and ongo Monahan. Specify whether you’d prefer: Assistant Public Advocate ing. 1 the bill form of the statute with commen Chair, Chapter31 Core Committee The Committee scrutinized the public defend tary 78 pages; or 2 the version which The committee’s membership reflects broad er statutes in 18 other states and the federal sets out the proposal as it would look if representation of the significant interests of statutes. It reviewed the recently revised ABA enacted and without commentary 20 Kentucky’s defender system, including: 1 Standards for Criminal Justice, 3rd Ed., pages. the 3 major urban areas; 2 the two major 1991, Chapter 4, The Defense Function, and non-DPA full-time offices, which handle the Chapter 5, Providing Defense Services, the largestvolume ofcasesin the system; 3 DPA April 1990 Federal Court Study recommenda full-time offices, which serve 40 of Ken tions, LRC v. Brown, 664 S.W.2d 907 Ky. tucky’s counties; 4 contract counties; and 5 1984, Kentucky’s Model Rules of Pmfes the Commission, itself. Additionally, the sional Conduct, and Kentucky’s Proposed Committee includes DPA’s General Counsel, Rules of Evidence. who has litigated Chapter3l andits provisions more frequently than anyone. Persons on this The Committee met 9 times for 45 hours, in Committee represent systems which currently addition to the hours of research, drafting, handle 82% of public defender cases. revision in preparation for our meetings and travel to and from meetings. The discussions THE COMMITTEE’S PROCESS were lively and focused on presenting the best and most practical recommendations. During the course of its work, the Chapter 31

February 1992/the Advocate 7 POLITICAL AND PROFESSIONAL INDEPENDENCE

The national legal community views political THE ABA The Legislative Research Commission’s Pro and professional independence as fundamen gram Review and Investigations Committee The ABA Criminal Justice Standards, Provid tal to a quality public defender system. did a program evaluation of Kentucky’s Pa ing Defense Services 1990 sets out that the role System in November, 1991. It observed public defenderorganization should have pro The United States Supreme Court has deter that the "perception of politics affects confi fessional independence which is free from mined, "[I]t is the constitutional obligation of dence in the nomination process," and it re political influence, [Standard 5-1.3a]; at> the State to respect the professional independ lated thefollowing information: ence of the public defenders whom it engag complished by putting governing in a board of es."PolkCowsty v. Dod.ron, 454 U.S. 312,102 trustees which does not include judges or The 15 memberson theCommission on Corrections and Community Services S.Ct. 445, 451,70 L.Ed.2d 509 1981. - prosecutors, [Standard 5-1.3b]; by selecting areall appointed by the Governor. Four thepublic defenderon the basis of merit who of these members are ex-officio and Professional independence is a recognized can be removed only for good cause [Standard serve by virtue of their appointment by ethical requisite for a lawyer. See, e.g., Ken 5-4.1]. the Governor to various positions tucky Rules of Professional Conduct 1990 within the Corrections Cabinet or the Parole Board. Commissioners serve Rule 2.1, 5.4. The ABA Standards for Criminal Justice, Pro during the term of the Governor that viding Defense Services 1990, state: "Selec appoints them. The most frequent con Political andprofessionalindependence of the tion of the chief defender and staff should be cern expressed about the nominating statewide public defender system is the most made on the basis of merit.... The chief de Commission by former Parole Board important change proposed by theChapter 31 members and applicants for positions fendershould be appointed for a fixed term of on the Board was whether or not the Core Committee, and is one of the 5 goalsand years and be subject to renewal. Neither the Commission can act independently of objectives developed by DPA in 1988 and chief defender nor staff should be removed a governor. The current commissioners interviewed for this study were un 1991. except upon a showing of good cause. Selec aware of any communication between tion of the chief defender and staff by judges theGovernor’s office andthe Commis The Chapter 31 Core Committee’s proposed should be prohibited." Standard 5-4.1. sion during the screening process. The method of accomplishing political andprofes Chairman of the Commission also the stated that sional independence includes: 1 changes in The American Bar Association recognizes Secretary of Corrections, the only communications with the Gov the way the Public Advocacy Commission that professional independence is necessary ernor’s Office during the screening members come to the Commission; 2 making for a public defender program to be able to process is to getnames ofpossible can the public advocate appointed by the Commis meet its public and ethical duties within the didates for the Parole Board. This oc sion, not the Governor, 3 making the Public curs because applicants often submit adversary criminal justice system: resumes to the Governor’s Office. Advocate a "for good cause" employee in However, former Parole Board mem stead of a non-merit employee; and 4 selec a .. The plan and the lawyers serving under bers and applicants for the Board felt it should be free from political influence... governors have influenced thepro tion of the Public Advocate on merit. The that cess by making their preferences b An effective means of securing profes Governor would continue to appoint Corn mis known to Commissioners. - sional independence for defender organiza sion members based on recommendations to tions is to place responsibility for gover him. nance in a board of trustees. Assigned-coun Campaign contributions made by sd and contract-for-service components of members of the Parole Board may also defender systems should be governed by create the perception that political ac DPA’S GOALS such a board. Provisions for size and the tivity is necessary to get appointed to manner of selection of boards of trustees the Board. At least four of the current One of the five 1988 goals and objectives of should assure their independence. Boards of ParoleBoard members or their spouses trustees should not include prosecutors or the Defense Services Division of DPA was judges. The primary function of boards of made campaign contributions to either political independence of DPA. tnzstees is to support and protect the inde the 1991 Wilkinson campaign for pendence of the defense services program... governor or the political action com mittee, Kentuckiansfor a Better Future. One of the four 1991 goals and objectives of Standard 5-1.3. One Parole Board member made acon the Defense Services Division of DPA was iribution a little over two months prior political independence of DPA. LRC’S VIEWS to the expiration of this term. Mother member made a contribution approxi

February 1992/the Advocate 8 mately two weeks after his term ex pired. Both members were later reap pointed. One new member made a con tribution approximately five weeks af MICHIGAN MASTER ter his appointment to the Board. One former Parole Board member, whose term expiredJune, 1990, andhis spouse BLASTS DETROIT TRIAL contributed to the 1991 Jones primary campaign in Fall, 1990. This Board COURT member was replaced in March, 1991.

Some applicants who were not ac A master appointed by the Michigan SupremeCourt to examine the operations of thetrial cepted for Parole Board positions also court in Detroit has concluded that the Detroit system "is a disincentive to due process." contributed to various candidates. Since resumes are not retained by the The master was appointed at the request of plaintiffs who are suing the local court over Commission on Corrections and Com the fees paid to appointed counsel and the quality of representation being provided to munity Services, telephone numbersor indigent criminal defendants, Recorder’s Court Bar Association, Crumnal Deferrse street addresses of applicants were not Attorneys of Michigan, el al. v. Wane County Circuit Court and Recorder’s Court and obtainable. However, it appears that Wayne County, SC 86099. three applicants contributed to the Jones and Hopkins campaigns and pos Attorneys in the trial court are paid a flatfee based on themaxium sentencefor theoffense, sibly two others contributed to the regardless of the amount of time the attorney spends workingon the case, and regardless Forgy and Baesler campaigns. Noneof of whether the case is pled or tried. these applicants were appointed. Id. at 112-113. In his March 18 report, master Tyrone Gillespie said that system hascreated a conflict of interest between appointed counsel and the poor clients they are assigned to represent, The ACA and othernational bodies say because it provides a financial incentive for attorneys to encourage their clients to plead that parole boards should operate inde guilty and afincial disincentive for attorneys to file motions andtry cases. Attorneys who pendently of political pressure or other ‘specialize’ in guilty pleas, including many who operated ‘out of pocket’ without offices, outside influence, and that boards secretaries, etc., can make as much as$200/hour for 3 or 4 hours of work, while an attorney should be appointed in a manner that who spends many hours preparing and hying a case can make as little as $15/hour. protects continuity of policy and ex Attorneys appointed to appear in the U.S. District Court for the Eastern District of perience. Michigan receive $75/hour for the hours they workon each case. Id. at 116. The master also found that the system discourages appropriate plea bargaining by the The Report relates options for eliminating this prosecutor because he/she knows the defense attorney has no financial incentive to go to perception which include creating an inde trial and therefore will, in some instances, accept a plea to a higher charge or a longer sentence. pendent nominating commission with politi cal autonomy. In his recommendation, the master suggested that the fixed fee schedule based on maximum possible sentence be found unreasonable, and offered several alternatives for LEXINGTON-HERALD’S VIEWS changing the system of compensation. He also suggested 560-70/hour as a reasonable hourly rate. He recommended that any study of the assigned counsel system encompass The Lexington Herald has expressed editorial the entire state, and not just Wayne County, because the quality of appointed repre sentation throughout the state varies widely. that the state pay views on thenecessity of selectionofselecting Finally, he recomnlended for the defense of appeals stemming from felony convictions. leaders of important efforts on the basis of qualifications, not politics: The Supreme Court is expected to decide thecase within the next few months.

KEEP YOUR EYE ON MOREHEAD National Legal AiI & Defender Assodation 1625 K Street, N.W. University’s presidential searchis a model Eghth Floor so far, at least Washington, D.C. 20006 202 452-0620 With so much noise coming out of Frankfort lately, a piece of good news has passed This was originally published in the National Legal Aid and Defender Association’s Cornerstone, un-remarked. Morehead State University is Volume 13, Number 2 and is reprinted here by permission. on its way to picking a new president based on qualifications, not politics. During the last six months, a search commit tee has been sorting out nominations and applications. The results of the search seem to sweep aside any skepticism about the process. In fact, Morehead’s search seems to be a model for other state universities. Five finalists have been selected, and all are qualified. There is nota political ringer in the lot. So give theschool’s regents andtheir search committee high marks to this point. But also keep your eyes on eventswhen thefull board meets in January to review the list of final-

February 1992/the Advocate 9 aCommissioflinSUlaxing its ists. getting politics out of that process." vocacy insured by work frominappropriate influence. Ifthe board votes to continue with theproc ess, narrowing the field further to two or COMPETENT, NOT POLITICAL, three finalists, then things are going well. LEADERSHIP CRIMINAL JUSTICE But if theboard balksat thefinalists andtries CONFIDENCE to bringsomepolitical hack to theforefront, Independenceofthe Public Advocate and staff you’ll know that Morehead is headed back is fundamental to both the fact andappearance Persons in thecriminal justice system need to to the days when it was more a political plaything than a college. And that is some of zealous representation of the accused. It is be confident in the belief that the public advo thing that neither the university nor the state for the public advocate to be cate andthe program of representation he ad Herald, not acceptable can afford.Editorial, Lexington extension Sunday, December22,199l chosen by judges on the basis of politics, ministers is independent and not an because these methods fall to guarantee that of the prosecution. state police, corrections, or GOVERNOR’S VIEWS thedefenderprogram will remain free ofjudi the governor. Such risks are dispelled by the This furthers the stated desire of Governor cial and political "supervision." Even when involvement of the independent commission Jones and this administration to select Ken- judges, politicians, and defenders have the in appointment, selectionand retentionof the tackyleaders on the basis ofqualifications, not best motives, the appearance ofjustice is tar Public Advocate. politics. nished when thepublic advocateis selected by judges or on the basis of politics. - CONCLUSION On February 15, 1991 Governor Jones dis The KRS Chapter 31 proposal incorpo cussed a plan he had promoted for some time A Public Advocate, like a university president, rates these recommendations arid values to create a council that would screen candi must not be selected on the basis of politics, in their entirety. dates for openings on University Boards. He but rather on the basis of merit and compe proposed that 3 names be nominated to the tence through open, impartial, competitive se Governor to choose from. His public policy lection procedures that seek application from rationale was clear, "We must eliminate the all qualified persons. Merit and competence influence partisan politics on that process, include the knowledge, skill, and dedication The Kentucky Department of Public Advocacy’s shifting our focus away from rewarding cam necessary to administer statewide public de paign contributors and toward finding the best fense efforts. personfor thejob." Courier-Journal, Febru Annual ary 15, 199l,p.B4 Selection on the basis of merit for the leader 20th of the statewide public defendersystem must Public Defender The December 31, 1991 Le.xington Herald- be made on the basis of demonstrated fitness Leader reported on Ernesto Scorsone’s bill to without regard to political considerations. Conference. take politics out of University governing Likewise, removal of the Public Advocate boards. Scorsone’s bill would have the gover must only be possible for good cause. Re nor select names from the 3 persons nomi moval cannot be permitted for arbitrary ma The Third Century of nated by a committee appointed by the gover sons; to do so would make unlikely the neces American Liberty nor. However, Governor Jones wants to take sary proactive, zealous leadership. that a step further. Governor Jones wants the Legislature to name the nominating commit PUBLIC CONFIDENCE tee May 31-June 2, 1992 members. "Brereton wants to take the bull The public will have confidencein the govern by thehorns,"said Bill Chiffin, Jones’ spokes ment if there is political and professional in man. "He wants to be even more direct in dependence of the Department of Public Ad- Lake Cumberland State Park 1992 NLADA Training Calendar The largest yearly gathering of Public Defense Attorneys

NLADA is pleased to announce its 1992 schedule of training events. Announcements including For more information contact program agendas, registration fees and forms, and travel information will be mailed to programs as they become available. Ed Monahan Director of Training Event Date Place Department of Public Advocacy 1264 Louisville Road Life in the Balance IV: Frankfort, KY 40601 Defending Death Penalty Cases March 6-8 Nashville, TN 502 564-8006 Appellant Defender Conference April 9-Il Nashville, TN 800 582-1671 FAX# 502 564-7890 Defender Management Conference May 13-16 Albuquerque, NM

February 1992/the Advocate 10 ATTORNEY FEES & CASE MAXIMUMS

Two decades of inflation have rendered the defense attorney to the court which shall re 4 $1000 maximum for a felony. rates and caps in KRS Chapter 31 unrealisti view the fee and expenses request and shall In 1978, the 2 hourly rates were increased to cally low. They are completely out of step with approve, deny, or modify the amount of com maximum increased current economic realities. The proposed revi pensation and fee listed therein. After final $25 and $35. The felony to sion of the attorney fees and case maximum approval of the fee and expenses the court $1250. statute is as follows: shall certify the amount andtransmit the docu There have been no increases in the hourly ment to the Public Advocate, who shall review 31.070 ATFORNEY FEES AND rates or the case maximums since 1978. the feeand expense request and shall approve, EXPENSES; APPOINTED COUNSEL deny, or modify therequest. No representative ACCOUNTING FOR INFLATION Reasonable and necessary fees and expenses of the Commonwealth, other than the Depart of counsel appointed by the department shall ment of Public Advocacy, shall have standing be paid in accordance with the following pro to contestthe fee or expenses in question. The Thestate Office of Financial Management and cedures and subject to the following limita request as approved or modified shall then be Economic Analysis of the Finance and Ad tons: paid. ministration Cabinet calculated the inflation increases between 1972 and 1990 to be 213%, b In determining the amount of the fee, the I Amount of Compensation. - and it calculated the values of the 1972 statu court shall consider the time and effort re tory rates in 1990 dollars due to this inflation: a The rate for compensation of an attorney quired, theresponsibility assumed by counsel, shall be fifty dollars $50 an hour for out-of- the novelty and difficulty of the legal and 1972 1990 court time and seventy dollars $70 an hour factual questions involved, the skill requisite $20 $62.50 for in-court time; to proper representation, the extent to which other employment was precluded, the fee cus $ 30 S 93.90 b The maximum attorney fee for non-death tomarily charged in the locality for similar $500 $1,565.00 penalty cases shall be: services, the gravity of the charge, and the $1000 $3,130.00 i misdemeanor, involuntary commitment, experience and ability of defense counsel. juvenile - $1,500; The rates as proposed in KRS 31.070 are c The court can exceed these maximum responsible proposals andvery reasonable, as ii Class A, B, C, or D felony - $3,000; amounts when necessary to compensate qual they are all less than the 1990 inflation maxi iii appeal to circuit court - $1,500; ity legal representation. mum rates. In effect, the new rates and maxi iv appeal to Court of Appeals or Supreme mums are nothing more than the current value 3 At the request of counsel appointed by the Court - $3,000; ofthe 1972 rates, taking into accountinflation, department, the court can authorize interim v other non-death penalty cases - $3,000. or, to be more accurate, slightly less than payments of the fee and/or expenses incurred. today’s value of the 1972 rates. c The maximum attorney fee for cases in which death is a possible punishment or a STATUTORY HOURLY RATES AND FEE CAPS CAPITAL CASE COSTS sentence of death has been imposed shall be: In 1972, Chapter 31 had the following hourly How much new funding would the increases i trial - $20,000; rates and the following ease maximums: for capital case maximums require? The best

ii appeal - $10,000; DPA estimate is that $280,000 in new money I $20 per hour for in-court work; would be needed each year. That estimate is iii post-conviction proceedings - $20,000. based on aprojection of about four 4 trials, 2 $30 per hour for out-of-court work; 2Procedures for Compensation. two2 petitions for post-conviction reliefand 3 two 2 appeals each year with two 2 attor a Each fee plus expenses incurred in the $500 maximum for any case other than a neys per case. defense shall be presented by affidavit by the felony;

February 1992/the Advocate 11 ners, small firms and any other appoin insure quality legal representation.This is ted counsel. As the commentary to the compensation standard recom Guideline 1.1 and the Guidelines in ATTORNEYS APPOINTED BY mended by the ABA Standards for Crimi DPA section 11 make clear, extensiveprep aration and long hours characterize nal Justice, Providing Defense Services, over This amended statutory language permits pay capital representation. Office Standard 5-2.4 Compensation and ex head, the need for reimbursement for penses 1990. ments from DPA funds only to attorneys "ap expenses incurred, and for compensa pointed by thedepartment." Under this statute, tion for time already worked do not stop ifan attorney is representing a client pro bono during a capital case. Financial hard ship imposed by a long delay before Integrity or if an attorney is representing a client for a payment for time worked and expenses fee and the client is no longer able to pay the incurred may impact adversely upon Onemust be trueto the things by which fee, and the attorney desires to continue to counsel’s ability to provide quality rep one lives. The safe course is to avoid resentation. represent the client as an attorney under KRS situations which are disagreeable and dangerous. Such acourse might get one Chapter 31 in order to receive appointed at FEE FACTORS by the issue of the moment, but it has torney fees, that determination is made by bitter and evil consequences. In subsection 2b thestatute details factors DPA, not the court and not the attorney. to be considered by a court in reviewing and In thelong days and years whichstretch approving the requested fee of an attorney beyond that moment of decision, one While thecourt does not have the authority to must live with one’s self; and the con appoint counsel and thereby obligate DPA appointed by the Department. These factors sequences of living with a decision funds, the court does have the authority to are nearly identical to those listed in the ABA which one knows has sprung from ti midity and cowardice go to theroots of refer the matter to DPA and requestthat DPA Standards for Criminal Justice, The Defense ones life. appoint theattorney. Function, Standard 4-3.3 Fees 1991 as ap propriate for setting an attorney fee. It is not merely a qttestion of peace of This procedure is necessary to insuretheinde mind, although it is vital; it is a matter pendence of the DPA program and its finan FEE STANDARD of integrity of character. cial stability. If attorneys or the courts could In subsection 2c, the proposed statute Dean Acheson, Secretary of State, represent indigents at. will or courts could 1950 sets the standard for counsel compensa appoint attorneys to represent indigents, the tion: an amount which is necessary to fixed budget of DPA for counsel fees would be at risk. In fact, the judiciary, itself, recog Legislative Information nizes that if it were in the business of setting fees for appointed counsel who were not a part Senate Judiciary Committee of an organized, controlled public defender Kelsey Friend D, Chair Charles W. Berger D, Vice Chair program, this would create "budgetary prob lems." Jones v. Commonwealth, 457 S.W.2d David K Kerem D Walter A. Baker R 627,632 Ky. 1970. Joseph U. Meyer D Tin PhilpotR Michael Moloney D David L. WilliarnsR

PERIODIC PAYMENTS House Judiciary Committee Louis Johnson D, Chair In fairnessto attorneys appointed by DPA and Charles Geneden D, Vice Chair to insure competent representation of thecli Thomas Robert Kerr D, Vice Chair Bob Heleringer R, Vice Chair ent, there will be times when an attorney de serves an interim payment for fee or expenses. Joe Borrows D Jon Acherson R Mike Bowling The statute provides for that with court D Jo Elizabeth BryantR ap Herbie Desk ins, Jr. D Lindy Casebier R proval. TheAmerican Bar Association Guide Richard H. Lewis D Stephen NunnR lines for theAppointment and Mike Ward D Raymond Overstreet R Performance of Lawson Walker 11R Counsel in death penalty cases Guideline 10.1c Compensation states "Periodic billing Toll-freetelephone numbers are available for citizens interested in thework of the Regular Session of the 1992 General Assembly. and payment during the course of counsel’s message representation should be provided for the A line-I -800-372-7181-may be used to leave a message for individual legislators. representation plan" 1989. A meeting information line-l-S00-633-9650_may be used to obtain infomiation about meeting and agendas. - The Commentary to that ABA Guideline ex A meeting information line in Franklin County-564-5034--may be used to obtain information plains: about meeting and agendas.

A bill status information line-I-800-382-245__may be used to check the status of a particular Periodic billing and - payment for bill. example, monthly - should be avail able to avoid hardship to sole practitio

February 1992/the Advocate 12 FUNDS FOR RESOURCES MATERIALS AVAILABLE

DPA MOTION FILE INSTRUCTIONS MANUAL

Funds forresources areconstitutionally neces STATEFACILITIES sary for the effective representation of many State facilities that are apart of the Kentucky indigent defendants, especially in theface of State Police or are regularly utilized by prose complex charges. The Department of Public Advocacy serious or do not have the capability to provide cutors has collected many motions and in or consultation, The defense is entitled to defense experts to defense assistance, planning structions filed in actual criminalcases and has compiled an in- presentevidence of either because their resources arc inadequate in Kentucky, act as consultants; to help of categories of the, various mo to provide this help or because such a role dcx a defense or mitigation of punishment; to con tions and instructions. Instmctions are tradict state evidence; and to assist in cross- conflicts with their responsibilities. categorized by offense and statute number. Many motions include memo examining state experts. When a transcript is PROCEEDINGS APPLICABLE TO randum of law. required for the effective assistance of coun sel, the defense is entitled to the funds to The statute is written so that funds for re CAPiTAL CASES obtain it. Similarly, the defense is entitled to sources must be provided when the appropri The motion filecontains manymotions money top witnesses necessary for an ate showing is made in any proceeding in which are applicabe to capital cases, evidentiary hearing, or a trial. which a defendant’s life or liberty is at stake. and that includes many motions filed in non-capital issues. Therefore,funds can be obtained when appro capital cases on Currently, fiscal courts am responsible for priate for pretrial proceedings, trial, appeal, In addition to containing tendered capi funds for resources for indigents in criminal post-conviction proceedings, and other pro tal instructions, the DPA Instructions Few fiscal courts honor this obligation. cases. ceedings where DPA has responsibility for Manual contains instructions actually given in many Kentucky capital cases The major proposed changes in KRS Chapter representing indigents. for both the guiltlinnocence and pen phases. 31 are necessary to bring the statutes into alty FISCAL COURTS conformity with constitutional developments, COPIES AVAILABLE and to insure fair determinations as well as County fiscal courts should not be required to judicial economy. pay the funds for defense resources since the A copy of the index of available in structions and thecategories and listing criminal justice system is now a state-funded of motions is free to any public de United States Supreme Court in Ake v. The system. The state should bear financial re fender or criminal defense lawyer in Oldahoma, 470 U.S. 68 1985, recognized sponsibility for this service, as it currently Kentucky. the necessityfor exparte defense requests for does for prosecution funds for experts, wit Copies of any of the actual instructions funds. This procedure insures indigents are nesses, and transcripts. are free to public defenders in Ken not required to provide discovery before a tucky, whether full-time, part-time, non-indigent defendant would haveto provide COSTS contract or conflict. Each DPA field office has an entire set of the instruc such information. What will this cost the state? In FY 89 the tions. The Kentucky Supreme Court has long recog 120 fiscal courts spent $54,609 on funds Criminal defense advocates can obtain nized that indigent criminal defendants are for expertwitnesses. In FY90, theamount copies of any of the motions for thecost entitled to funds for experts. See Young v. was $59,886. of copying and postage. Commonwealth, 585 S.W.2d 378 1979. HOW TO OBTAIN COPIES

FUNDS FOR PROSECUTORS If you are interested in receiving an index of the catagories, a listing of the Currently, Kentucky statutes permit prosecu available motions or instructions, cop tors to obtain money to bring state witnesses ies of particular motions, instructions, contact to testify at a proceeding but do not provide like funding for defense witnesses. KRS 421- BARBARA SUTHERLAND .015 and 421 .230-.270. Money is readily pro DPA Librarian 1264 Louisville Road vided prosecutors under this statute. Prosecu Frankfort, KY 40601 torsalso receive funds from the legislature for 502 564-8006, ext.l 19 experts needed when they prosecute criminal defendants.

February 1992/the Advocate 13 CLINICAL NEUROPSYCHOLOGY

Clinical neuropsychology is a subspecialty among experts decreases as the assumptions in caseswherethepresence of some functional within psychology which is concerned with grow more specific. That is, one would be hard loss consequent to the injury is agreed to by the relationship between brain states and be pressed to find an expert or layman, for that both parties. In other cases, the plaintiff may havior, cognitive abilities or emotional life. matter who does not agree that changes in claim functional loss of a subtle nature, the These threecategories of function will be re brain function lead to changes in behavior. presence of which defense contests. In both ferred to hereafter as psychological function. Opinion about the utility of particular tests as these types of cases, the clinical neuropsy It is a discipline that lies at an interface involv indicators of such change, on the other hand, chologist will be asked top an evalua ing the medical specialties of psychiatry and is more controversial. tion, and render an opinion as to the patient’s neurology on the one hand, and clinical psy behavioral capacities.In the second, however, chology on theother. From the forensic point Methods: an additional inference to neurological status of view, clinical neuropsychology has been The intellectual methods ufclinical ncuropsy may be required. found to be relevant in both civil and criminal chologists are similar in many respects to contexts. In the paragraphs to follow, the as In criminal matters, the question posed will those physicians or clinical psychologists. The sumptions and methods used by clinical neu usually concern competency to stand trial basic paradigm is one that begins with presen ropsychologists will be described as will their and/ordiminished capacity as adefense. As in tation of aproblem or question about apatient, training. The potential usefulness of neu the civil circumstance, the neuropsychologist observation of the patient using a variety of ropsychological opinion in forensic contexts will be asked to describe the patient’s func tools, inferential reasoning to underlying also will be explored. tional status. Inference to underlying neu causes for the patient’s problem and recom rological mechanisms may or may not be per mendation for execution Assumptions: or of remedial inter tinent, depending on the case. vention. What differentiates the various types The fundamental assumption which underlies of practitioners are thus not their intellectual Observation Methods: thepractice ofclinical neuropsychology is that methods. Rather, they arc distinguished, first, there is a systematic relationship between by thetypes of patient questions they are gen The clinical neuropsychological evaluation changes in brain function and alterations in erally asked to address, second, by the meth consists of several elements including inter psychological function. It is further assumed ods of observation they employ and third, by view of thepatient and others, review of psy that changes in particular parts ofthe brain are thenature of the interventions they are quali chological and other records, administration systematically related to particular types of to recommend and/or perform. of tests and generation of a report which in alterations in psychological function. Finally, cludes interpretationofall these data. The tests it is assumed that controlledmethods ofobser Questions: used by neuropsychologists fall into three gen vation, "tests," will reveal these alterations in eral categories, conventional tests of intelli For clinical neuropsychologists the question psychological function. gence and other abilities, tests of personality posed generally takes the form of, "Is the and neuropsychological tests. The first two behavior andmental functioning ofthe patient These assumptions grow out of a long history categories will be familiar as they are widely different in significant ways from that of other ofresearch, clinicalobservation and treatment used to asses human function for a variety of comparable individuals, and, if so, do those ofpersons with diseases ofthe brain. They are purposes such as school placement, job differences reflect brain dysfunction?" termed, "assumptions," rather than "facts," In the screening, career counselling and psychiatric medicolegal context, the specifics of the ques because they representa general way of look evaluation. Ofparticularmnterestinthe present tion posed to the neuropsychologist will vary ing at and thinking about brain and behavior, context, however, are neuropsychological depending on the nature one with which most experts would agree. of the case. For ex tests. These same experts, however, often disagree ample, a fairly common civil matter is the concerning more specific formulations about, determination of damages following head in These are behavioral measures which are de for example, particular brain structures and jury in a motor vehicle accident. Depending signed and validated for the specific purpose particular categories of behavior. Further upon the condition of thepatient, the question of identifying persons with brain dysfunction more, these assumptions are hierarchical in may be one of specifying the magnitude of and describing the nature of their deficits. A nature, and the universality of consensus disability or degree ofoccupational limitation long history ofresearch has demonstrated that

February 1992/the Advocate 14 some alterations in psychological function are Forensic Applications: capacity, some neuropsychologists will prefer more frequently seen in patients with brain that an initial evaluation by a physician, usu the foregoing paragraphs, several refer dysfunction that are others. It is measures of In ally a psychiatrist, be performed before the ences have been made to forensic applications these psychological functions that make up the neuropsychologist is consulted. Ifthequestion Civil more often neuropsychological tests. of neuropsychology. matters of the presence of a medical illness has not than criminal are the context of interface be beenresolved, medical evaluation is essential. There are a variety of approaches pursued by tween neuropsychologists and the legal sys In cases where the client’s medical status is different clinical neuropsychologists which tem. Such issues as competency to handle already well established, physician consult face dementing illness, reflect differences in training and theoretical one’s affairs in the of ation may be unnecessary. In evaluation, the orientation. The general parameters of the disa,ility determination for purposes of work formulation of the competency or capacity evaluation, however, are widely agreed upon men’s compensation and determination of issue is handled with the physician as the areas by experts. The evaluation must include a damages in personal injury are the major organizer of the data. The situation is seen as broad objective survey of functions including of activity. analogous to a conventional medical evalua motor skills, perceptual abilities, cognitive tion in which the psychologist or otherprofes abilities and emotional variables. As regards the criminal justice system, neu The particu sional plays a consulting role. They thus pro lar tests chosen will vary, interpretation ropsychologists may be called upon to render must vide data upon which they may be asked to take into account the social and cultural his an opinion as to the mental status of a defen amplify in deposition or at trial as needed, tory and present circumstances dant with regard to his competency to stand of the patient. whilethe physician acts as the final common Use of normative comparisons, for example, trial. Cognitive deficits identified in the neuro pathway. must be pursued with appropriate considera psychological examination may renderthe de tion given to differences between the patient fendant incapable of understanding the pro JAMESC. NORTON, PH.D. ceedings or cooperating being tested and the norm group. of in his defense. Veterans Administration Competency evaluation will involve primarily University of Ky. College of Medicine Interventions: an assessment of cognitive ability and emo 202 Health Sciences Learning Center tional state. In most cases, such an evaluation Clinical neuropsychologists may provide Lexington, Kentucky 40536-0232 could be performed either by a licensed clini and/or recommend avariety of 606 233-8018 psychological, cal psychologist or a neuropsychologist. Pre educational and/or rehabilitation interven ference for the latter might occur in cases Dr. Norton is a staff psychologist at the tions to treat the deficits identified in the where the defendant is thought to have a his VeteransAd,ninistrafion Medical Center. evaluation. In the medicolegal context, this He is a Diplomate in Clinical Neuropsy toryof neurologic disease, since the neuropsy might involve projections of costs for long chology forthe AmericanBoardofProfes chologist Will generally have greater experi sional Psychology. term treatment in civil matters, or recommen encein the evaluation of such patients. dations for appropriate treatmentand disposi tion for criminal defendants. A defense based upon diminished capacity is the second circumstance in which neuropsy Training: chological evaluation might be appropriate in Clinical neuropsychologists are doctorally a criminal matter. As in questions of compe trained PhD or PsyD, licensed providers of tency, based upon deficits demonstrated in the psychological services. Most frequently, they neuropsychological examination, the defense have completed an internship in clinical psy might contend that the defendant, at the time chology at a site approved by the American of commission, was unable to appreciate the wrongfulness Psychological Association and will have had of the act or was unable to con form additional post-doctoral training specifically to the requirements ofthe law. Here, the in neuropsychology. Diplomate Status in Neu nature ofthe alleged incapacity will determine ropsychology granted by the American Board whether evaluation by a clinical psychologist of Professional Psychology is somewhat or a neuropsychologist would be more perti analogous to Board Certificationin the medi nent. As with the competency question, if cal specialties and is a widely acknowledged there is thought to be a neurological basis for criterion of the highest standard of compe theincapacity, neuropsychological evaluation tency. Licensed clinical psychologists, lack is to be preferred. If, on the other hand, psy ing specific training in neuropsychology, chiatric illness is being alleged, clinical psy would not generally be stipulated as expertsin chological evaluation would be more appro this field, however thereis no generally agreed priate. upon standard at this time. In dealing with questions of competency or

February 1992/the Advocate 15 WHAT EVERY STATE DEFENSE ATTORNEY MUST KNOW ABOUT THE FEDERAL GUIDELINES

Can It Really Get Any Worse?

L INTRODUCTION of the offender. The judge merely se in points and six 6 columns are provided for lects where, within the range, the sen thefinal calculation.see sentencing table page The FederalSentencing Guidelines are impor tence should be. 17 tant to the state criminalpractitioner. It would The Commission further stales that the Guide be malpractice for a defender to work out a IV. CALCULATING CRIMLNAL lines are to establish honesty in sentencing by plea to a drug offense without advising his or HISTORY eliminating the uncertainty of the parole sys her client that a second offense imposes a tem, so that an offender serves the sentence greater mandatory sentence. That same con A defendant’s criminal history is based on the that he receives. Guidelines Manual at 1.2. cept applies to the advice that should be given length of sentence received on his past record, Secondly, Congress wanted uniformity in sen to a state defendant before a plea so that an and/or whether the defendant is currently on tencing by narrowing the wide disparity in informed decision can be made as to all of the probation. The calculation is as follows: sentences imposed for similar criminal of consequences and ramifications of that plea. fenses committed by similar offenders. id. A. Criminal History Category A slight change of a state sentence from sixty The criminalrecord of a defendant is whatthe 60 to fifty-nine 59 days may save your a through e Court must use to determinesimilar offenses. The total points from items client much more than that one 1 day if a determine the criminal history This article will concentrate on Chapter Four listed below federal charge is ever filed in the future. Many Sentencing Table in Chapter of the Guidelines Criminal History and Crimi category in the clients do not know that they are on a non-re nal Livelihood. It is that chapter which has Five, Part A of the Guidelines. porting probation for a traffic offense at the consequences for the client based on his or her time a federal offense is committed. That a Add 3 points for each prior sentence of past record. probation then costs dearly on the new federal imprisonment exceeding one year and one sentence. ilL HOW THE GUIDELINES ARE month. CALCULATED Gone are the days of what we in Ohio affec b Add 2 points for each prior sentence of imprisonment of at least sixty days not tionately referred to as a Kentucky Demurrer To begin calculating a federal sentence, one i.e. - get out of townand pay thecosts with one must look at the United States Code section counted in a. year’s non-reporting probation. As you read for the offense of conviction and then find the c Add I point for each prior sentence not on, you’ll see several reasons why this type of corresponding guideline section in the Guide included in a or b, up to a total of 4 points sentence can come back to haunt your client. lines Sentencing Index Appendix A. The for this item. relevant guidelines will provide the Base Of H. THE PURPOSES OF THE GUIDE fense Level from which an adjusted offense d Add 2 points if the defendant committed LINES: JUSTICE, HONESTY, UNI. level is calculated. FORMITY Then, certain crime char the instant offense while under any criminal acteristics i.e. amount ofdrugs andlor money, justice sentence, including probation, parole, The United States Sentencing Cornrnis or risk of harm to the victim from the crime supervised release, imprisonment, work re sion states that in drafting the guide are added to that base. That base level is then lease, or escapestatus. lines its principal purpose is to establish sentencing further adjusted either up or down depending policies and practices for e Add 2 points if the defendant committed the federal criminaljustice system that on a list of adjustments such as victim adjust two years after will assure the ends of justice by prom ments, role in the offense and obstruction. the instant offense less then ulgating detailed guidelines prescrib The final number is the Offense Level. release from imprisonment on a sentence lug theappropriate sentencefor offend counted under a or b or while in imprison ers convicted of federal crimes. U.S. Sentencing Commission Guidelines If multiple offenses are committed there is a ment or escape status on such a sentence. If 2 Manualatl.l. Thebouomlineisthat multiple count calculation that gives you the points axe added for itemd, add only 1 point a series of calculations are made by a total offense level. A grid is provided which for this item. Guidelines 4A1 .1. probation officer and given to the sen tencing judge setting out a range of lists the offense level vertically and corre the record sheet of a typical client, approved sentences for each crime of sponds to a range of sentences in months. Look at conviction or for therelevant conduct Horizontally, thecriminal history is calculated calculate his points and just gaze across the

February 1992/the Advocate 16 offense level chart to see in months whatthat recorddoes to his federal sentence. SENTENCING TABLE [in months of imprisonment] Points As an example, assume that your client is Criminal History Category Crim’mal History convicted n federal court of possession of a Offense I II III IV v VI kilogram of cocaine. After checking the Level 0-I 2or3 4,5,6 7,8,9 10,11,12 13 ormore Guidelines’ Dreg Quantity Table, which as 0-6 0-6 0-6 0-6 0-6 0-6 signs Offense Levels Base to specific drug 2 0-6 0-6 0-6 0-6 0-6 1-7 quantities, you find that the baseoffense level 3 0-6 0-6 0-6 0-6 2-8 3-9 is 26. Yourclient’s criminalrecord is not bad. While he has no prior drug offenses, he does 4 0-6 0-6 0-6 2-8 4-10 6-12 5 0-6 0-6 1-7 4-10 6-12 9-15 have two convictions for driving under the 6 0-6 1-7 2-8 6-12 9-15 12-18 influence. On the first offense, three years ago, he was sentenced to a three-day drug 7 1-7 2-8 4-10 8-14 12-18 15-21 intervention program. 8 2-8 4-10 6-12 10-16 15-21 18-24 9 4-10 6.12 8-14 12-18 18-24 21-27 For the second offense, six months ago, he 10 6-12 8-14 10-16 15-21 21-27 24-30 received a typical sentence of one hundred 11 8-14 10-16 12-18 18-24 24-30 27-33 eighty 180 days in the county jail, with one 12 10-16 12-18 15-21 21-27 27-33 30-37 hundred seventy 170 days suspended, court costs, and one year’s probation. 13 12-18 15-21 18-24 24-30 30-37 33-41 14 15-21 18-24 21-27 27-33 33-41 37-46 In checking the criminal history score we as 15 18-24 21-27 24-30 30-37 37-46 41-51 sign two 2 points for the prior offenses 16 21-27 24-30 27-33 33-41 41-5 1 46-57 4A1.1 c. However, since the current drug 17 24-30 27-33 30-37 37-46 46-57 51-63 offense was committed while on probation, 18 27-33 30-37 33-41 41-51 51-63 57-71 your client receives two 2 additional points 4Al.ld. His total point score is now four 19 30-37 33-41 37-46 46-57 57-71 63-78 20 33-41 37.46 41-51 51-63 63-78 70-87 4. This places him in Criminal HistoryCate 21 37-46 41-51 46-57 57-71 70-87 77-96 gory III. 22 41-51 46-57 51-63 63-78 77-96 84-105 The guideline sentence rangeis seventy-eight 23 46-57 51-63 57-71 70-87 84-105 92-115 78 to ninety-seven 97 months. If your 24 51-63 57-71 63-78 77-96 92-115 100-1 25 client were not on probation but hadthe same 25 57-71 63-78 70-87 84-105 100-125 110-137 record, his sentence would have been seventy 26 63-78 70-87 78-97 92-115 110-137 120-150 70 to eighty-seven 87 months. 27 70-87 78-97 87-108 100-125 120-150 130-162

Another example would be a client who was 28 78-97 87-108 97-121 110-137 130-162 140-175 convicted in state court for burglary in 1987. 29 87-108 97.121 108-135 121-151 140-175 151-188 30 97-121 108-135 121-151 135-168 151-188 168-210 He received a five-year sentence. Because of his good behavior and obvious rehabilitation, 31 108-135 121.151 135-168 151-188 168-210 188-235 he served three 3 years and was on two 2 32 121-151 135-168 151-188 168-210 188-235 210-262 years parole. He is now convicted of altering 33 135-168 151-188 168-210 188-235 210-262 235-293 motor vehicle identification numbers on a 34 151-188 168-210 188-235 210-262 235-293 262-327 1990 Cadillac. The Base Offense Level is 8, 35 168-210 188-235 21 0-262 235-293 262.327 292-365 but because the auto had avalue of more than 36 188-235 21 0-262 235-293 262-327 292-365 324-405 $10,000, but less than $20,000, we add 3 ad 37 ditional points for a total Offense Level of 11. 21 0-262 235-293 262-327 292-365 324-405 360-life 38 235-293 262-327 292-365 324-405 360-life 360-life 39 If your client had no record he would be 262-327 292-365 324-405 360-life 360-life 360-life looking at a range of 8 to 14 months. Unfor 40 292-365 324-405 360-life 380-life 360-life 360-life tunately, this is not the case. We must now 41 324-405 360-life 360-life 360-life 360-life 360-life determine the criminal history level. 42 360.life 360-life 360-life 360-life 360-life 360-life

First, add 3 points for a pnor sentence of more 43 life life life life life life than one 1 year and one 1 month; 2 points

February 1992/the Advocate 17 of the for being on parole; I point for the instant I. Non-support eighteen 18 years old at the time m. Prostitution commission of a felony drug or controlled offense being committed less than two 2 n. Resisting arrest years after therelease from prison. o. Trespassing. substance offense andhas at least two2 prior convictions of felony drug or violent offenses. 2. Certain prior sentences are excluded by the Our total Criminal History Level is 6, all for If those requisites are met, then the criminal Guidelines for purposes of calculating crimi the single burglary. With our Offense Level history category in every case is category VL nal history; but most non-petty offenses are of 11, ourclient must be sentenced to a range Guidelines 4B1.I. If a defendant committed not. Sentences for the following prior of from 12 months to 18 months. an offense as part of a pattern of criminal fenses and offenses similar to them, by what cOnduct engaged in as a criminal livelihood, B. Sentences Counted And Excluded ever name they are known, are never counted: the Guidelines impose a minimum offense Sentences for all felony offenses are counted. a. Hitchhiking level of 13, unless the defendant is entitled to b. Juvenile status offenses and truancy a two-point reduction in offense level for Ac Sentences for misdemeanor andpetty offenses c.Loitering are counted, except as follows: d. Minor traffic infractions e.g., speeding ceptance of Responsibility. Guidelines e. Public intoxication 4B1.3. Armed Career Criminal is a special 1. Vagrancy. 1. Sentences for the following prior offenses Guidelines 4Al .2c-d. category of enhanced sentence for firearms and offenses similar to them, by whatever where the offender has at least three 3 prior Statejudges love to place people on probation, name they are known, are counted only if A convictions of violence or serious drug of even if it is non-reporting. It makesthem look thesentence wasaterm of probation of at least fenses. Guidelines 4B1.4. good. It will make you look good and make one year or a term of imprisonment of at least your client feel good if you get the shortest thirty days, or B the prioroffensewassimilar V. SUPERVISED RELEASE As in the exam to an instant offense: period of probation possible. ple described above, probation will cost your Another provision of the sentencing guide a. Careless or reckless driving client a longer term of federal sentence if he is lines that the state criminal practitioner must b. Contempt of court new federal be aware of is supervised release. Whenever c. Disorderly conductor disturbing thepeace on probation at the time of his d. Driving without a license or with a re criminal conduct, or if the prior offense is a federal offender is sentenced to imprison voked or suspended license year or more. ment of more than one year, the court shall e. False information to a police officer petty but probation is one f. Fish and game violations order a term of supervised release to follow g. Gambling As if all of this were notbad enough, the imprisonment. Guidelines 5D1.1. h. Hindering or failure to obey a police offi federal gets worse if your client is cer sentence i. insufficient funds check classified as either aFederal Career Offender, The term of supervised release shall be at least j. Leaving the scene of an accident an Armed one year for a Class E felony or Class A k. Local ordinance violations excluding lo Criminal Livelihood Offender, or cal ordinance violations that are also crimi CareerCriminal. A CareerOffender is at least misdemeanor and up to five years for a Class nal offenses under state law A or B felony. Guidelines 5D1.2. A provi sion of Supervised Release is that the court Revocation Table shall impose a condition thatthe defendant not inmonths of Imprisonment commit another federal, state or local crime, 18 USC 3583d, and not possess illegal con- 18 USC 3563a3. Criminal History Category* ti-oiled substances, The Guidelines establish a classification of Grade of violations by Grades A through C and then Violation II Ill IV V VI provides for a term of imprisonment for the revocation of supervised release. Guidelines Grade C 3-9 4-10 5-11 6-12 7-13 8-14 7BL4. see revocation table

Grade B 4-10 6-12 8-14 12-18 18-24 21-27 VI. WHEN IN DOUBT, ASK

Grade A 12181 15-21 18-24 24-30 30-37 33-41 When the state practitioner has reason to be 24.302 27-33 30-37 37-46 46-57 51-63 lieve that his or her client may face future federalcharges or is currentlyon sonic type of * The criminalhistory category is the category applicable at the time the defendant originally was supervision, it makes good sense to sentenced to a term of supervision. federal federal ramifications. The best ‘Except as provided in subdivion 2 below. check into any that advice is your nearest federal 2Where the defendant was on probation or supervised release as a result of a sentence for a Class placeto seek have always found federal A felony. defender’s office. I

February 1992/the Advocate 18 defenders ready and able to give of their time and talents. Ifno federal defenderis available, LE1TER TO ThE EDITOR a federal probation officeris a second choice. The only dumb questions is the one you don’t ask. September 24, 1991 VII. CONCLUSION RE N.F. No. 102814 Suicide or Death Penalty? Every client I have ever had has always told me the same thing: I’ve learned my lesson. I Dear Editor: will never be in trouble again. Unfortunately, this is not always true. By keeping the Federal Sentencing Guidelines in mind when molding I just lost a client, to suicide in prison: a man I first interviewed December 3, 1990, and a state sentence, the defense attorney may not classified as a "case" to determine whether it met ourpriorities. As a DPA attorney for have interest stop recidivism, but he can temper its conse Post-Conviction Relief, I am horrified by my inability to acted in the of this human being, instead of classifying his "issues" - until I closed the case after he had quences. been transferred to a more secure "facility" for an institutional offense. I did not even learn of his hanging himself in his cell until today, although it occurred two weeks ago. MARTIN S. PINALES It must not have been relevant to his "issues" or his "case". SIRKIN, PINALES, MEZIBOV & In 1971,1 lost a fifteen yearold boy fives hours after he arrived at an unauthorizedholding SCHWARTZ facility for children. He hanged himself, also. Then, as now, I question a system we are 920 Fourth & RaceTower sworn to improve, and my lack of capacity to prevent tragedy at its hands. 105 West Fourth Street I responded to the"Paducah" death penalty survey, and emphasizenow, that any sentence Cincinnati, Ohio 45202 with deprivation of parole almost the only "priorities" I have time for, except detainers 513 721-4876 with immediate serve-out or parole dates and transferees with immediate court dates pending, is potentially death. In absurdly long sentences, we have allowed ourselves to E4ucation: Ur.iversity of Cincinnati B.BA., adopt an illogical distinction between "death penalties" and "penalties which result in death" - the slow, grinding death of the mind, or the quicker answer of 1964;Salrnon P. Chase CollegeofLaw J.D., spirit and the suicide. Obviou.sly for No. 102814, his 15-year sentence enhanced by a first degree PFO 1968. Member: Cincinnati Ohio State and is in the same category. Because the "issue" was not our "priority," we waited until too American Bar Associations; National Asso- late. Some of our prison clients have had trials and some have had appeals, and Post-Conviction ciation of Criminal Defense Lawyers Mem Relief is seen by much of the public as a "gift". ber, Board of Directors 1978-1985; Ohio But the despair, the isolation and alienation, and now death, cry out for more than this. Association ofCriminalDefenseLawyers-Di- We need lawyers who arc not moved from Post-Conviction to try misdemeanor cases. We need rector, 1988, 1989, 1990, 1991; CfrLCiTLFWI trained intake clerks, investigators and paraprofessionals sufficient in number and devotion to meet the needs of the 5,000 men and women who will be in prison in Association of Criminal Defense Lawyers- 1992. 1 have been trained in the technical aspects of handling caseloads, monitoring and President Elect, 1992; Practitioner’s Advi- computerized tracking. I have been "trained" to treat my clients as people, not cases. sory Group of the United States Sentencing However, none of this training has prepared me to work without the technical devices Commission, 1991. Director of the "Strike used for substantive reasons. None educated me to accept an answer that we "make do" Force" oftheLawyersAssiszanceCommittee; with one lawyer for 1,000 men, one paralegal for all non-litigation cases, or 25% of the Advisory Group for the Southern District of lime of an over-extended investigator for PFO challenges, lawyer ineffectiveness and fact research all over the Commonwealth. Ohio; United States District Court for the Civil Justice ReformAc:. I, as a lawyer working in the Post-Conviction Relief section of the DPA, lost this man and I have to find a way to avoid another death. But as a Department, we must now try to assemble resources to serve adequately the 5,000 prisoners whose lives we will touch next year. Training in the substantive law is not enough. Can we try some systems of case monitoring to avoid transfer problems? Can we improve our staff’mg and merit salary structure? Can we learn to manage large, transient caseloads more adequately? Can we seek outside funding for pro-active alternative parole projects?

It is no longer sufficient to say the Legislature or the Department of Corrections is to blame for Post-Conviction budgeting problems. We - all of us as Public Advocates - must be trained to demand adequate financial, legislative and political support for this important function. Before another number dies.

Anthea M. Boarman Attorney for Post-Conviction Relief

February 1992/the Advocate 19 IMBALANCED BUDGET CUTBACKS: PROSECUTION CUT 1.84%; DPA CUT 5.05%

The December 9, 1991 Order of the Secretary 15. Transportation Cabinet General was 3.33%. The road fund budget reduction of Finance and Administration Cabinet direct Administration and Support was 3.58%. Yet, DPA suffered a 5.05% cut. ing reduction of appropriations for state gov AGENCIES TOOK LESS THAN S.05% ernment agencies hit DPA hard, andput DPA CONSEQUENCES OF FUR. CUT THER FUNDING CUTS FOR at a further disadvantage with prosecutors. DPA: THE POOR Other state agencies were cut at rates substan NO LAWYERS FOR The prosecution Attorney General, Com agencies monwealth Attorneys and County Attorneys tially less than DPA’s 5.05%. These Further funding cuts this fiscal year will cause cut include: had their $30,886,600 state funding cut by and their percentage further cuts in direct legal services to indigent 1.84% $569,400. On the other hand DPA’s criminal defendants. 1. Judicial Branch - 3.33% $10,793,200 was cut 5.05% $545,000. The 2. Justice Cabinet - 4.98% If DPA receives 15% $1,537,230 less next funding now stands at $30,317,200 for the 3. Public Protection & Regulation, fiscal year, many clients in many of Ken prosecutionand $10,248,200 for DPA. Office of the Secretary - 3.3% tucky’s 120 counties will not have an attorney 4.StateFairBoard-.45% Not only is DPA substantially underfunded and will not be able to be prosecuted. Jail and not only is DPA’s funding at a 3-1 dispar populations will increase. Indicted and con GENERAL FUND REDUCED victedpersons will haveto be released. Prose ity with the prosecution’s but DPA has now 333%; DPA REDUCED 5.05% been forced to take apercentagereduction that cutors will not have the ability to constitution is nearly 3 times more than the prosecution. The entire state general fund budget reduction ally convict andimprison indigent defendants. Kentucky’s criminal justice system cannot fairly function with DPA suffering these se anuary 24, 1992 ries of disadvantages. Edward Monahan Editor, TheAdvocate MANY AGENCIES TOOK NO CUT Kentucky Department of Public Advocacy Perimeter Park West It should tiot pass unnoticed that while the KX’L LEGAL 3.264 Louisville Road essential DPA services were being cut 5.05%, Franktort, KY 40601 other state agencies took no cut. Agencies Dear Ed: i625KSTREL NW. taking no reductions include: EIGHTHFLOOR I was disturbed to hear about the financial problems that WASH.. DC. 20006 are threatening TheAdvocate, since it’s one of the most 202452-0620 valuable publications we receive in the Defender Division. 1. Secretary of State Your work in examining relative funding and salaries for 2. County Costs defender programs in Kentucky and other states has not only helped us, but many defender programs in states and 3. Local Government EconomicFund counties around the country, 4. MiscellaneousAppropriations Similarly, your focus on the important substantive issues 5. Flood Advisory Commission like sentencing, search and seizure, competency, mental retardation provides invaluable assistance to trial and 6. Local Jails Support appellat, attorneys. 7. Department of Existing Business and In It’s a shame that more states don’t have publications like dustry Advocate, and itThewould be criminal if it were forced to cease publication. 8. Kentucky Development Finance Authority I’ve enclosed a check from KL&DA for $250.00 toward costs 9. Oral History Commission of publishing futur, issues. 10. Heritage Council Thanks again for the great work that you and the DPA staff 11. Department of Workplace Standards do. Good luck. 12. National Resources General Sincerely, Administration and Support 13. Board of TaxAppeals Mar1joderick 14. Revenue Cabinet Director Defender Division

February 1992/ the Advocate 20 JUDICIAL SENTENCING: ABANDONING CITIZEN WISDOM Criminal Law Legislation in the 1992 General Assembly Summary of House Bill 125

This Bill was prepared by the Task Force on that decided their guilt. Judges thereafter Not only arejuries’ roles being reduced bythis Sentences and Sentencing Practices. The Task couldonly lower the sentence in light ofinfor Bill, but thejudges’ role is being enhanced. Force vote for this Bill was less than over malion provided by a presentence investiga whelming. tion report. The Politics of Judge Sentencing

One significantproblem with judicial sentenc It has been filed by Representative Bill Lear In 1986,the GeneralAssembly complemented ing in Kentucky that is not present in many on January 7,1992. Its major features include: jury sentencing by passing the Truth in Sen states who havejudicial sentencing, and in the tencing Bill, which provided thejury in felony 1.Establishes federal system, is that we are one of few states judicial sentencing in Kentucky cases additional information upon which the in a.ll criminal cases, including afterjury trials. whose judges are elected. By politicizing the jury could base its sentencing decision. selection ofjudges, we also enable opponents Thereafter, thejury learned of this information 2.Establishes a Sentencing Commission at to campaign based upon political decisions by tached to the Justice Cabinet whose purpose is in a second hearing, following thereturn of a guilty verdict, after which they fixed the de to write sentencing guidelines to shape sen tencing decisions by judges. fendant’s penalty. Sentencing by the judge followed. 3.Ailows for victims and their families to tes century history changed this The tify regarding the impact of the crime on them A or more of is by Bill. The bill takes the jury out of the sentenc in the trials of death penalty cases. Wisdom of ing decision. The Bill makes irrelevant the 4.Apparently abolishes the role of the jury in jury’s opinions regarding how much timein Citizens deciding whether someoneis guilty of being a prison a particular factual scenario should persistent felony offender. merit, taking this decisionout of the hands of common citizens who have heard the facts 5.Abolishes court modification of jury sen freshly, and puts the decision into the hands of tences and the ability of a circuit judge to an elected judgewho may have heard casesfor change a Class D verdict into a Class A mis many years. demeanor. Our civilization has decided, and very Utilizing the Wisdom of Citizens justly decided, that determining the 6.Makes various changes in KRS Chapter 45, guilt or innocence of men is a thing too the statute governing budget and administra Juries have not functioned improperly, or un important to be trused to trained men. awful tion. wisely, over the years, nor have they been If it wishes for light upon that matter, it asks men who know no more particularly "soft" on citizens who have com law than I know, but who can feel the 7.Makes small changes in KRS Chapter 321, mitted crimes. Indeed, our prisons are already things that I felt in the jury box. When the statutegoverning veterinarians. full, and more prisons are being called for. it wants a library catalogued, or the solar system discovered, or any trifle of 1.Changing a Century oPractice: that kind, it uses up its specialists. But What juries have done is brought the wisdom when it wishes anything done which is Judicial Sentencing and experience of twelve common people to really serious, it collects twelve of the the sentencing decision. The jury system has ordinary men standing around. House Bill 125 makes a radical change in the worked well in Kentucky. We should aban manner in which citizens in Kentucky are G.K. Chesterton don such an experienceonly upon a significant sentenced following a jury verdict. Flistori "The Twelve Men," andpressing need, which is not apparent at this Tremendous cally, Kentucky citizens have had their sen time. Trifles 861920 tences fixed following a jury trial by thejury

February 1992/the Advocate 21 the incumbent. One serious and negative ef which will have longer prison terms as an No Appeal of Sentence fect of this Bill is that judges will sentence obvious result is highly unwise. Certainly One serious problem with the bill as written is with one eye upon the next election; his or her victims should not be shut out of thesentenc the fact that an accused cannot appeal from a opponents will be equally aware of an incum ing decision; however, they should not be sentence under the guidelines. One of the few bent’s sentencing decisions. Longer sen heard at the same time the jury opinion of an positive features of the federal system is that tences will result. appropriate sentence is being foreclosed. an appeal of the sentencing decision is possi Sentencing Inconsistency Unsolved Unconstitutional ble. The Bill presently being proposedleaves us with theworst of all worlds, sentencing by This Bill will not eliminate inconsistency in Lastly, this Bill is clearly unconstitutional. elected judges using guidelines with no right sentencing, its ostensible purpose. The great Sentencing is procedural. Only theKentucky of appeal. majority of sentencing is already being done Supreme Court is to make rules regarding by judges, that is pursuant to plea negotiation. procedures in our courts. Only recently, the The makeup of the Sentencing Commission is Thereis little evidence thatjuries sentence any Court amended Rule of Criminal Procedure also problematic. Of the thirteen members, more inconsistently than do judges. Judges 9.84, whichretainsjury sentencing. The Gen only two are associated with the defense of vary widely n their sentencing philosophy, eral Assembly will be violating their role tar criminal cases. Four members are associated and the sentencing guidelines do not promise der the Kentucky Constitution by passing a with law enforcement, four are to be circuit to eliminate this source of inconsistency. Nor bill that attempts to regulate the procedures judges, and three are to be victims of crimes, does the Bill eliminate other causes of incon used in sentencing in Kentucky. Further, the or persons who have worked with victims. sistency, such as prosecutonal discretion in Bill violates Section 7 of the Kentucky Con Sentencing policy should not be shaped by a charging and negotiation. Inconsistency in stitution, which reads that the "ancient mode group so stacked in favor of longer sentences. sentencing will not be solved by attacking of trial by jury shall be held sacred, and the It is staggeringthat more victims ofcrime will only a small source of theinconsistency. right thereof remain inviolate, subject to such be on the Sentencing Commission than de modifications as may be authorized by this fense lawyers. It is also highly unreasonable Discourages Jury Trials Constitution." not to have a member of the Kentucky Asso Lawyers named Another serious effect of this Bill is that it ciation of Criminal Defense 2. Sentencing Guidelines: Ignoring the discourages jury trials. Historically, a citizen to the group. Parenthetically, no KACDL Federal Experience. accused of a crime could depend upon the member was named to the Sentencing Task Force that wrote this bill, and that had a sig good sense of citizens chosen among his or her The Federal Courts Study Commission in nificant effect on the negative portions of this peers to judge the case for what it was worth. April of 1990 statesthat the federal sentencing Bill. Thus, often a citizen would place his or her guidelines were causing "serious problems." fate in the hands of the community, as repre Federal judges have been particularly critical 3. Victim Impact In Death Penalty Cases. sented in thejury, rather than in the hands of of the use of sentencing guidelines, some of an elected prosecutor and judge. This Bill whom have been heard to quit over their use. This Bill contemplates evidence of the "im however eliminates the conscience of the Practitioners have been vociferous in their pact of the crime on the victim, the victim’s community from the sentencing decision, and opposition to guidelines. So what do we do in family or survivors" in death penalty cases discourages the use of jury trials. In a time Kentucky? We propose writing sentencing presented to ajury. This is an extraordinarily when ourrights are being constricted daily, we guidelines. unfair and even cruel proposal. in Kentucky should not be discouraging the use of thejury in making decisions in criminal Creating Substantial Costs At present in Kentucky, so-called victim’s cases. evidence cannot be presented at the penalty Sentencing guidelines would have a serious phase of a capital case. That is as it should be. and negative impact procedures Elim’mates Citizens and Elevates Vic on sentencing The jury is called upon then to decide whether in Kentucky. that our tims It is expected experi the defendant lives or dies based upon the ence will track the federal experience, which Another effect of this Bill is that it encourages aggravating and mitigating circumstancesthat has been quite negative. Guidelines will be judges to take into account the sentencing are available, including the facts of the crime. overly rigid, and wilt not allow the flexibility recommendation of the victims of a particular needed for any fair sentencing procedure. The Bill would change that, and would pro crime. What is ironicaboutthis is that the Bill Guidelines will also be costly, as can been duce an even more arbitrary Kentucky death eliminates the conscience of the community, seen by the creation of a new bureaucracy in penalty. The penalty phase of capital cases the opinion of the twelve jurors, while at the this bill, the Sentencing Commission. While would turn into a proceeding in which the same time encouraging the recommendations the procedures are not yet apparent, it is ex death of the defendant would be urged due to of thevictims, whose opinions will obviously pected that sentencing hearings will become the relative worth of thevictim. The deaths of support the harshest of sentences. At a time protracted and complex, as issues contained in bankers and lawyers and judges would be of prison overcrowding, writing a statute the guidelines are litigated. worth more in such a proceeding than the

February 1992/ the Advocate 22 death of a cab driver or factory worker or so that our urban inmates feel better. Rural ing a penalty of death. Thereafter, numerous homeless person. Prosecutors would build a prosecutors wisely see that this statute results persons in the criminal justice system will shrine to the victim during penalty hearings. in too much time being given for criminal spend our declining resources on the battle Defenders on the otherhand would investigate offenses. This Bill, rather than limiting the over whether theperson should be executedor and present any seamy fact or circumstance use of or abolishing PFO, would ensure that not. about thevictims’ lives in order to savethe life many more persons in Kentucky would be The fiscal impact of the PFO portion of the of the defendant. Do victims want to go receiving PFO sentences. Prisons will swell Bill promises to be staggering. In many rural through this? An already racist death penalty immeasurably with the passage of this portion against persons would turn even more racist, as juries would of the Bill. areas, PFO ‘s are not pursued for reasons. be urged to kill based upon the moral value of who have felony records, many is because the person is simply not a thevictim. 5. Fiscal Impact: Siseable Costs Often it persistent offender, and the enhanced penal One other impact of the bill is that it seems to The fiscal impact of judicial sentencing is ties are inappropriate. Often it occurs because allow for a jury to hear the presentence inves difficult to measure. The abolition of the sec the enhanced penalties may be inappropriate tigation report prepared by the probation and ond phase of felony trials may reduce the for the prior offenses or the present offense parole officer, a change that would be logisti amount of money paid to juries for the last involved. The mechanical approach taken by cally difficultfor the author of thereport, and days of trials, thereby reducing costs. It also the Bill will increase theuse of PFOs, and will would create numerous evidentiary problems may bethat the discouraging of jury trials may result in more persons from rural Kentucky at the hearing. result in fewer such trials, with resulting being given enhanced sentences for minor lower costs. On the other hand, more jury felonies. Prison overcrowding will definitely 4. Persistent Felony Offender. trials may result where juries are removed increase, and the black hole of our prison calculus. Defendants from the may perceive system will have to be fed with more general The bill makes a significant and negative that they have little to lose from a trial where change in the law fund dollars. of persistent felony offend a judge known for harsh sentencing is presid ers. At present, juries decide whether some ing. Overall Impact to DPA: More Staff one is to be found to be a persistent felony Required offender or not, and thus whetherthey will be The fiscal impact of thecreation ofsentencing faced with enhanced penalties. The bill seems guidelines is significant. First, a Sentencing DPA will need increased staffas a resultof a to take that authority away from juries, and Commission can be expected to be quite number of the proposals in this bill. Staff necessitated by more jury places them in the hands ofjudges. costly. A sizeable bureaucracy will grow out increases will be trials caused judicial sentencing, longer and ofthis Commission, and costs will swell. This by There are factual decisions to be made at a Commission is to be created out of whole more complex sentencing proceedings caused PFO proceeding, and factual guidelines, more death issues are better cloth, and thus all new employees, travel, by thesentencing pen made by juries. The bill changes that. alties a result of victim impact evidence phones, overhead, salaries, etc. will be new as being admitted at death penalty trials, more dollars coming out of the budget. Further, if More importantly, however, the PFO statute training needed to educate in the area of the can have an immenselydraconian sentencing guidelines have their expected ef effect upon sentencing guidelines, and more increased an accused. A person can commit a bad check fect, an even more serious fiscal impact will persistent felony cases. offense and as aresult haveto spend tenyears occur. At present, many crimes are mitigated, in prison without the possibility of parole. particularly in rural areas, due to thefact that Historically, such as in the recent DJI the community knows the particular Such a decision should not be made by ajudge, defen changes, statutory changes have been made dant, and brings that knowledge the who will tend to approach the PFO decision into sen which result in the need but no funding for tencing decision. Guidelines, with their un mechanically rather than humanly. Juries increased DPA staff. This Bill promises to have been known to find a person not guilty of feeling consistency, will eliminate that. Per repeat this unfortunate occurrence. sons who should not go to prison will being a PFO simply because the prior offenses go to or the present offense do not merit such a prison, while persons who should receive the ERNIE LEWIS result. That discretion should not be taken minimum sentence, or a lesser included of Assistant Public Advocate away. fense, will instead receive a midrange sen 201 Water Street tence for the greater offense. Consistency of Richmond, KY 40475 No statute more crowds prisons than the PFO sentencing will only be reached by more per 606 623-8413 statute. Apparently the problem for the Sen sons going to prison for greater sentences. tencing Task Force is that PFO is not being Who will pay for this consistency? used anywhere much outside ofLexington and Louisville. This is seen somehow as unfair. The fiscal impact of the victim impact testi The solution apparently is to sentence more mony in death penalty cases will be significant rural Kentuckians to prison for longer periods because it will result in more persons receiv

February 1992/the Advocate 23 SPECIAL FUND IS BEING SOUGHT TO PAY FOR DEFENSE IN SLAYING

Bowling Green attorney Kelly Thompson Jr. of $25,000 be established with the authoriza town Bowling Green. He had been beaten with has asked that Warren County Fiscal Court be tion for him to request more money if needed. a 2-by-4, Wilson said. ordered to increase its appropriation to his mo Thompson hasassigned threeattorneys to the public advocate office because there’s not Judge J. David Francis will consider the tion Oct. 14 hearing. case, one to represent each personcharged. He enough money budgeted to pay for thedefense in an has estimated that the case could cost more of three men charged in a capital murder case. David Thompson’s office is defending than $100,000. Bridges Antonio Marcus Howard, 18, "This is an extraordinary case wherein the Jr., 18, commonwealth seeks the death penalty and and Eddie Moore, 17. The three are charged STAN REAGAN and robbery of a handi for that reason, an extraordinary amount of in the July20 beating capped, retired Bowling Green probation and Daily News Staff Writer expenses above and beyond the normal oper ating budget of the program will be required parole officer. provide an appropriate level of defense for to Albert Lamb, 55, of 246 College St. was the three individual defendants in this action," beaten and robbed of food stamps and left for a motion made Division Thompson said in in dead by the three men, who returned twice and Warren Circuit Court. II of again beat the man, Commonwealth Attorney Thompson, public advocate for the 8th Judi Steve Wilson said. cial District, is asking that afund in theamount Lamb was found dead in his truck in down-

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