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February, 1992 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.
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