THE ADVOCATE

A Publication of the Kentucky Department of Public Advocacy

Advocacy Rooting Out Injustice Volume 13, #4 June, 1991

POVERTY IN KENTUCK

Celebrating the 200th anniversary of our U.S. Bill of Rights on December 15, 1991 Celebrating the 100th anniversary of our KY Bill of Rights on September 28, 1991 FROM THE EDITOR: CLIENTS, POVERTY & IN THIS ISSUE PUBLIC DEFENDERS

In our state of Ilinited resources, many Kentuckians are poor Public defenders have as their honor the providing of legal services to poor Kentucky citizens ac FEATURES cused of crime. In providãtg this service, itis important for us to know how poverty influences the client-attorney relation Poverty andits Impact Client-Attorney Relationship ships. Cessie Alfonso and Frank Badillo, on the .4 forensic and psychiatric social workers with much criminal justice experience, The Criminal Caseload in Kentucky 10 help us understand poverty’s influence in our work, and lead us to a client-centered approach: viewing our poor clients as per 1990 National Survey of Public Defender Offices 14 sons of dignity-worth. MANY POOR ACCUSED ARE UNREPRESENTED REGULAR COLUMNS

In FY 1990, Kentucky public defenders represented 25% ofthe estimated 255,000 The Advocate Features: Rob Riley 3 persons charged with a crime in district court. Who represented the rest? Or were West’s Review 21 many ofthose 191,000 represented at all? Counsel is critical to the effective functioning of our criminal justice system. The Death Penalty: The Bill of Rights Slipping Away 24 When will wccomnsitourselvesloprovid tug counsel for allpoor Kentucky citizens? Upholding Capital Cases Regardless of Error 30 The 200th Anniversary ofthe 6th Amend ment would be a fitting time. ECM District Court Practice: Penalties Un4er 1991 DUI Amendments 31 Plain View: Search and Seizure Law 32 The Advocate isa bi-monthly publication of the Department of Public Advocacy, an mdc Evidence Law: Challenging the Seizure of Blood 35 pendentagencywithin the Public Protection and Regulation Cabinet. Opinions expressed in ar Alternate Sentencing 42 ticles are those of the authors and do not neces sarily represent the views of DPA. The Afro cats welcomes correspondence on subjects Ask Corrections 67 covered by it. If you have an articleour readers will find of interest, type a short outline or general description and send it to the Editor. Copynghx C 1991. Department of Public Ad TRIAL TIPS vocacy. All rights reserved. No part may be reproduced without written permission from DPA. Permission forseparately copyrighted ar The Kentucky Penal Code’s Disintegration 44 ticles must be obtained from that copyright holder. Presentence Interviews Update 46 EDITORS Legislative Highlights of 1991 Special Session 47 Edward C. Monahan, Editor 1984-Present Erwin W. Lewis, Editor 1978- 1983 Americans Behind Bars: International Incarceration Rate Comparisons .... 49 Crls Brown, Managing Editor, 1983- Present Young Black Men and The System 56

Contributing Editors A Study of the Decision-Making of Capital Jurors 58 Linda K. West West’s Review Allison Connelly Post-Conviction Kentucky Counties that Still Use Jury Commissioners 60 Barbara Hoilbaus Juvenile Law Steve Mix-kin Death Penalty Donna Boyce 6th Circuit Highlights Test Your Knowledge About Drugs 61 Ernie Lewis Plain View Dan Goyette Ethics President Bush to Wage War on Bill of Rights 61 Rob Riley In the Trenches David Niehaus Evidence Dave Norat Ask Corrections Defendants with Mental Retardation Need Interveners 64 Mike Williams F.Y.L George Sornberger StraightShooting Involuntary Civil Commitment Materials Available 66

Department of Public Advocacy Book Reviews: The Geometry of Violence and Democracy 68 1264 Louisville Road Frankfort, KY 40601 Critique 69 502 564-8006 800 582-1671 FAX # 502 564-3949 Advocate Ad Rates 63

Printed with State Funds KRS 57.375

JUNE 1991 I The Advocate 2 THE ADVOCATE FEATURES Rob Riley, LaGrange Trial Office

ROB RILEY

Rob Riley, Director of theLaGrange trial PUBLIC ADVOCATE SERVING CLIENTS office, is a 1982 graduate of the Univer TWO MASTERS sity ofTennessee School ofLaw. He has He, and theLaGrange officehe manages, been a public defender since graduation. Rob is disappointed that the very agency try to have clients come away from the He assumed the position as Director in that has the most zealous advocates of an criminal justice system having met 1990 with theresignation of Belie Niemi. individuals’ right to a fairprocess doesn’t "someone in a suit" that "neither pitied He is married to Natalie Kline and they take a leadership role in battling the them or abused them, nor tried to take have a 16 month old daughter, Morgan popular causes such as drunk driving something away from them." Rob’s Kline Riley. legislation and the war on drugs which caseload andcommitment allows him to are knee-jerk reactions to public pres spend time with clients and to work on THE WAR ON INDIVIDUAL sures: "solving the causes of problems as op LIBERTIES posed to merely reaching a good disposi Sadly the agency with the most infor tion in the immediate case." He attempts Rob was influenced by a Justice William mation and experience to expose this to "craft a resolution that is notonly good 0. Douglas biography- Independent problem to public debate, The Depart for the client, but actually benefits Journey, which talks about the belief ment of Public Advocacy, has society as a whole." that the Constitution was designed to remained suspiciously quiet, apparent keep government off the backs of the ly content to grumblequietly from the TAKING IT ALL IN STRIDE people. Rob observed that this concept sideline, rather than activ ely participate seems all but forgotten today: in the struggle. This, coupled with con Rob approaches the job, as he does life, tinued chronic underfunding, puts in with humor, "Where else can you work Asa society, we areall willing to volun digent clients at a fundamental disad this hard in a system that neither ap tarily relinquish our rights in the name vantage that only the most zealous preciates your efforts, nor understands of a perceived momentary security. Public Advocate can hope to even par your motives, for so little pay? Besides tially offset. that, you get to wear cool ties because l’hroughout our history, the justice everybody thinks you’re weird anyway." system has struggled with the concept The head of the Department, whose job of relaxeddiligence in theprotection of it is to advocate in favor of the most individual liberties in the face of a per unpopular group, criminal defendants, Rob is probably the most principled person ceived national problem. National serves at the pleasure of a Governor I know and he consistently governs his be hysteria fueled in partby self-interested who is elected and runs on a platform havior by what he believes. It is something politicians hascreated a War on Drugs, that, invariably, negativelyimpactsthat that I highly admire in him. He will not a War on Crime, a War on Rights, etc group. It is a system whereby com drink Coke or Coke products, because they that has led to the truth-in-sentencing placency is rewarded, but nothing is haven’t divested from South Mrica. He is laws, the DUI Bill, restriction of judi ever improved. not afraid to speak out for what he believes, cial discretion at sentencing, and the irregardless ol’ his belief’s popularity or ac ceptance. He is refreshingly honest. escalation of the death penalty. In the POLITICAL AGENDAS 1980s and 90s cherished personal Rob has a dogged determination, he’s very freedoms were, and are, sacrificed out Working at the Commonwealth Attorn energetic and fights hard for his clients. of a misguided belief that societal ey’s Office in Jefferson Co., Rob learned Time is not a factor for Rob. He stays with problems can be solved, at little or no that there are "good people doing an the client until the job is done. He gives cost, within prison walls. honorable task, but politics does corrupt 120%. Rob sees public defender work as a the system." Rob feels that no person viable career option, even though the money The criminal justice system needs to should be punished or notpunished, due is not the greatest. He has a sense of coin better protect each mitment and does a great job despite the individual’s rights, to "someone’s private political agenda." lack of support he feels from the leadership, not to protect the power of the state or as he tries to disregard politics and give his the interests of the majority. Rob believes public advocates need to client’s the best representation. find new ways to "rock the boat." He Rob holds out hope that "what is left of enjoys "seeing the effect, however slight, On his own iniative, Rob put together a DUT the Constitution can still be used by that continuous advocacy, on behalf of notebook for his client’s DUI cases, gather zealousAdvocates to slow thejuggernaut those whom others would ignore, can ing resourcesfrom all over the country .The of paranoia that is currently sweeping have on a seemingly unntoveable sys entire legal community of LaGrange relies on Rob for information on DUI cases. this country." tem."

- BetteNiemi

JUNE 1991 / The Advocate 3 Poverty and Its Impact on the Client-Attorney Relationship

Cessle Alfonso

Discussions ofpoverty typically focuson generally focus on the financial, educa also to the absence of educational struc several issues: tional, and familial. As criminal justice tures. Such structures are needed to en professionals, we must also include courage and support poor people - who What is poverty? within the definition of poverty, limita are at highest risk of AIDS and other Who are the poor? tions of cognitive, problem-solving diseases - in using themedical care avail Whatis therelationship betweenpover resources. able. ty and crime? What impact do education, employ Having financial, educational, and Data from the Centers for Disease Con ment, and other factors have on poor familial resources give individuals the trol, for example, reveal that AIDS is the people? opportunity and capacity to develop, leading cause of death among black identify, and utilize life options. With women between the ages of 15 and44, in An understanding of these issues is cru such resources cognitive and problem- New York and New Jersey. Significant cial not only to the public defender, but solving skills arenurtured and enhanced. proportions of the poor population are indeed to all criminal justice profes In contrast, poverty does not offer in victims of childhood abuse, are caught in sionals. Just as important, however, al dividuals the opportunity to develop a a generational cycle of violence, al though rarely discussed, is a considera repertoireof options to life situations. At coholism and drug abuse, and disor tion of how poverty affects the attorney- the same time, the condition of poverty ganized home environment. Reports of client relationship. Only in more fully generates a range of emotions, such as child abuse and neglect have risen over understanding poverty and its effects can depression, anxiety, fear, anger, helpless 200% from 1980 to 1988. Total reports the public defense attorney provide the ness, despair, and emotional isolation. of child abuse secondary to drug userose highest level of legal assistance to the These emotions may be managed in by 72% between 1986 and 1987; and client. For it is the public defender, more adaptive behaviors, or in maladaptive or alcoholism is implicated in over 70% of than any other practitioner, who provides criminal behaviors. all murders and violent crimes. legal aid to the myriadof America’s poor. Because poverty inhibits the ability to Thirty-nine percent of our nation’s We will first address the question of develop a repertoire of socially accept crimes homicide, rape, aggravated as "whatis poverty" fromthe perspective of ablemanagement skills, individuals may sault, burglary, arson,larceny, andmotor social workers; we then discuss themany develop those behaviors that arc self vehicular theft are committed by youth. dimensions and effects of poverty destructive and that, ultimately, are Nationwide, the high school dropout rate regarding clients and move on to con destructive to society as a whole. For is increasing, along with adolescent sider the impact of poverty on the attor example, such individuals may use delinquency, substance abuse, and ney-client relationship. To help attorneys school delinquency, mind-altering sub violent behavior. Studies show that high recognize their clients’ issues as well as stances, manipulation, nomadic life school dropouts demonstrate higher rates their own responses to these, we high style, sexual deviance, or violence to of antisocial behavior and aremore aptto light these dynamics in three examples. manage the conditions emotional and be unemployed. It is estimated that one We conclude by presenting techniques material of poverty. In general, persons million teenagerswill drop out of school for attorneys that enhance their relation who receive emotional andmaterial nur this year; and recent national data reveals ship with clients. turance are able to expand the repertoire that homicide is the leading cause of of life management to attain their goals death among young black males between POVERTY: and to achieve a greater degree of emo the ages of 15 and 24 and among adult LACK OF RESOURCES tional equilibrium. black males between the ages of 18 and 44. While the clients who seek the services LIVING IN THE STATE OF of public defenders vaiy with regard to POVERTY From 1978 to 1987, firearms accounted race, ethicity, and gender, they all have for 78% of homicides among young in common their poverty. Poverty is the Like many poor people, the public black males. Overall, firearm related primary criterion for legal services in the defender’s clients must often contend homicides accounted for 96% of the in nation’s public defenders system. In with a severe shortage or absence of even crease in the homicide rate for young Kentucky, to qualify for public legal as the most basic resources. Many live daily black males from 1984 to 1987. Other sistance, thepoverty level annual income in apartments with no heat, hot water, data reveal that for men 25 to 34 yearsof is $6,624 for a single individual; $8,880 cooking facilities, or sanitary bathing age, the black homicide rate is seven for a family of two; $11, 148 for a family facilities. Increasingly, recent studies times that of whites; the homicide rate for of three; and $13,424 for afamily offour. reveal the extreme shortage of adequate Hispanics is two and a half times higher Although various definitions of poverty health care in poor communities, and at than that of whites. may be helpful, the fundamental defini tribute the rise of AIDS and higher in tion -poverty as a lack ofresources - cidence of HIV positive persons to the Homelessncss has now become another prevails. Discussions of lackof resources absence not only ofmedical facilities, but of the many faces of poverty in America.

JUNE 1991/ The Advocate 4 From 1981 to 1988, the number of home feels hopeless and helpless. In this emo * The attorney’s body language avoiding less individuals rose by 250%. Disin tional state, she abdicates her respon eye contact, failing to shake hands, tegrationof the family hasresulted in the sibility to participate in the defense moving away, and so on can convey rejection and abandonment of our youth. process. discomfort, fear, contempt., or emotional Homelessness of entire families inten distance. sifies thefamily’s pressure to meet other The attorney responds to the client’s be responsibilities, such as providing havior by feeling angry and frustrated, It is important that the attorney provide a security, health care, and education for and by labeling theclient as "difficult" or relationship that is different from the young children. The U.S. Bureau of the "truculent." The attorney tells this client: client’s experience and expectations, at Census estimates that 13 million "I can only see you two more times. the same time recognizing that the clients children, or 1 out of 5 children, in Then I’ll have to present you to the may likely re-create the negative interac America is poor. Our nations’ youth, at judge." Or, the attorney tells the client: tions that have characterized their lives. the brink of adulthood, sell their bodies "Please fill out these applications. Leave or illegal substances to meet life’s basic them in the folder outside." ENHANCING THE needs for food, shelter, and protection. It CLIENT-ATTORNEY is currently estimated, for example, that Example 2. RELATIONSHIP 35 to 40% of homeless persons are in need of drug treatment, and that many The client is black, in his early thirties, The public defender can enhance the engage in criminal activities to support muscular, wears an earring, and always relationship with clients by recognizing their habits. dresses in a clean, long, white flowing and identifying those behaviors that im garment and turban. pede the defense process. Through em An additional component for the person pathy and objectivity, the attorney can living in the state of poverty is isolation. The attorney feels frustrated and view clients’ behavior within the context Poverty physically and psychologically threatened by the client, and labels the of their poverty. This perspective helps isolates the individual. It precludes the behavior as "bizarre," "acting out," and the attorney better understand what the opportunity to experience people in posi "hostile." Consequently, the attorney client is experiencing, and the limited tions of authority or power as peers or fails to build on theclient’s areas ofcom repertoire with which the client attempts equals. The poor client has little oppor petence and avoids the client. The attor to cope with poverty. tunity to develop relationships with ney tells this client: "Well, I already have professional, educated members of 300 cases,"or "I’ve been in court and the In enhancing the attorney-client relation society, and, therefore, is generally un judge has said, ‘Let’s get this case over ship it is critical for attorneys to under comfortable relating to the attorney. with! stand how the stimulus the clients’ anger, anxiety, frustration, and so on THE CLIENT-ATTORNEY Example 3. affects them. They also must recognize RELATIONSHIP that although they may be unable to The client is white and in his early twen change that stimulus, nonetheless as Despite the harsh realities poor people ties, homeless prior to arrest, he is dirty professionals, they can identify their facedaily, manyprofessionals, including and lice carrying, moves and speaks ag feelings generated by the client and can attorneys, generally expect poor clients gressively, and is apparently high from learn to manage these feelings. who seek legal assistance to perform and an illegal chemical substance. behave in ways familiar to their own The attorney may use the following tech experience. Often these professionals’ The attorney fails to take into account niques to improve management of their knowledge of poor people is limited to what this client has to say on his or her feelings and to achieve a more effective what they read in magazines or own behalf. The attorney tells his fel relationship with clients. The attorney newspapers, or the images they view low-public defenders: "These clients al needs to: nightly on television broadcasts. It is im ways lie," or "They’re just being perative that public defendersunderstand manipulative." The client’s behavior * acknowledge the feelings of the client, their clients’ experience so as to engage generates in the attorney anger, con regarding fears and resistance to legal the clients in the defense process. tempt, and fear. The attorney attempts to assistance, but avoid becoming con Anyone, including attorneys, who inter distance himself or herself from the sumed by such feelings. acts with individuals who are feeling clients’ anger, frustration, and im despair, helpless, frustrated, and angry patience by not giving serious considera * set limits and structure where ap will be affected by such feelings. Our tion to the client’s concerns. propriate, while being sensitive to the experience has shown that these be client’s feelings. haviors may generate in theprofessional, In each case, the attorney responds to the in this case theattorney, feelings of fear, poor client by being insensitive, * give some degree of support directly to anger, anxiety, frustration, and judgmental, punitive, and by stigmatiz the client, so as to help him or her cope withdrawal. ing, labeling, and denying the client a with the reality of difficulties and con voice. flicts concerning the charges. The following examples highlight how clients’ feelings and behaviors can The following behaviors are likely to * maintain an active role in the client’s generate in attorneys responses that im have a deleterious effect on the attorney defense, to further the relationship. pede thedefense process: - client relationship and the defense process as a whole: * remain objective while communicating Example 1. understanding. * The attorney’s limited interaction con The client is a young black woman who veys the message that theclient is unwor * share emotional reactions when ap is inarticulate and illiterate. The never- thy, "you’re not worthy of my time." propriate; avoid hiding behind intellec wed mother offour children, hasreceived tualization or position. public assistance since the age of 15, * The attorney’s silencecommunicates dis when shegave birth to her first child. She interest anddisengagement.

JUNE 1991 /The AdvocateS ______

POVERTY TRENDS IN KENTUCKY 1979-1986

The estimates indicate that poverty has increased in Kentucky in the 1980s when compared with the pover ty rate for 1979. The estimated 1986 rate is 18.2%, slightly above the 1979 rate of 17.6%. The number of people estimated to be in poverty was 678,000, a 36,700-person increase 5.7% over 1979. However, the trend since l983---when povertyhit its most recent peak of 19.9% or 739,300 people---has been one of steady decline.

Eastern Kentucky continues to have the largest num ber of counties with high poverty rates. See Figure 1. Many counties in that region had poverty rates of 30% or higher in 1986. Nine counties had poverty rates above 40%, including the seven contiguous counties of Elliott, Morgan, Wolfe, Breathitt,Owsley, Clay, and Knox. The other two counties with such high poverty rates are McCreasy and Clinton in the LakeCumberland region. The county with the highest poverty rate is Owsley County, where an estimated I 52.9%of the population was in poverty in 1986. Figure 1: Map of 1986 Kentucky poverty rates Not only does eastern Kentucky have a high rate of poverty, the rate has increased since 1979. See Figure POVB6 J cl5.O F -1 15.1-20.0 2. Fifteen of the 22 counties where poverty rates 20.1-30.0 30.1+ between 1979and l986increasedby4ormoreper- centage points are in eastern Kentucky. Elliott and Wolfe counties have the unenviable position of being on the list of top ten counties in the state in terms of both the overall rateof poverty and the increase in that rate. In contrast to eastern Kentucky, most counties in the Bluegrass Region have low poverty rates, which have continued to decline even further. Among the ten counties with the lowest poverty rates in 1986 were Fayette, Anderson, Woodford, and Franklin. The other six counties were in the Louisville and Cincinnati metropolitan areas: Jefferson, Bullitt, Oldham, Boone, Kenton, and Campbell. The estimates indicate a decrease in the poverty rate for 24 counties. But the only significant decreases were in the Lexington metropolitan area, where the poverty rateestimates declined by 8 points in Woodford County, 4 points in Fayette County, and 2 points in Clark and Scott counties. The substantial decline in the estimated poverty rate for Woodford County was the result ofpercapita income increasing by 33.6% whileper capita income maintenance payments feU by 30.Opercentin constant dollars. In Fayette County, constantdollar per capita income increased by 12.5% and per capita income maintenance payments fell by 17.2 percent.

Jefferson County had the largestnumber of persons estimated to be in poverty in 198675,500 and the largestdecline in the number of persons in poverty between 1979 and 1986 -8,900. Fayette County was second in both the number of persons in poverty 20,700 and the decline in this number -6,700. In contrast, Pike County, with the third largest poverty population 20,300 people, had the largest increase in persons below poverty 4,700. Urban counties have larger numbers of persons in poverty but lower poverty rates, relative to rural counties. Many rurat counties have relatively small poverty populations but high poverty rates because they have fewerpeople overall. Obviously, the pattern of the geographic dis tribution of poverty one sees is dependent on whether absolutenumbers or percentages are used.

Another perspectiveon thegeographicdistribution of poverty is provided by dividing the number of persons in poverty by the geographic size of thecounty rather than by its population size. This measures the number of persons in poverty per square mile of the county i.e., the spatial density of the poverty population.

No single measure provides the best estimate of the spatial distribution of poverty but each of the three measures presentedprovide valuable information. As a percentage of total population in a county, rural counties---particularly in eastern Kentucky---are most affected by poverty. In actual number of persons in poverty and in the spatial density of poverty, urban counties are more affected. Any comments or ques tions about these estimates should be directed to the authors at the Urban Studies Center. C. THEODORE KOEBEL, PH.D. MICHAEL L. Figure 2: Map of change in Kentucky poverty rates, 1979--i 986* PRICE, PH.D, Urban Studies Center, University of Louisville, Louisville, Ky. 40292, 502 588-626. CHG c 0.0 ji 0.0-1.9 The Report was published in December, 1988 by the 2.0-3.9 -.-- 40+ Urban Studies Center, the report does not reflect the views or policies of the Univ. of Louisville, or any representative of the University or any Division. It is reprinted here by permission.

JUNE 1991/ The Advocate 6 * be aware of his or her attitudes and man their own responses can attorneys build Social Work,July - August 1988. Vol. 33. No. nerisms. the most effective defense. Public 4 pp.306-313. defenders, in their commitment to poor ‘ Centers for Disease Control CDC Mor * re-frame situations so as to give the client clients, provide a service vital to society bidity and Mortality Weekly Report, Decem a sense of control arid options. as a whole. We have suggested these ber 7, 1990. Homicide leading cause of death approaches in the hope that they will among young black males. * remain aware of body language and eye provide attorneys with additional resour contact. ces for working at the highest level of "Closing the GAP - Homicide, Suicide, legal assistance. Unintentional Injuries, and Minorities," A * enable the client to understand the reality publication from the Office of Minority of the situation: what is the client’s role, CESSIE ALFONSO, MSW; ACSW Health, 1990. what is the attorney’srole in the defense. FRANK BADILLO William Raspberry’s article, "Excess Alfonso Associates Deaths" Friday, October 26, 1990, * avoid making assumptions. Whether this 123 Franklin Street W’ashingtonPost. is the client’s first, second, or third ex Jersey City, NJ 07307 perience with thecriminaljustice system, 201 798-8281 Arnold P. Goldstein and Harold Keller. theattorney must discuss step-by-step the Aggressive Behavior: Assessment and Inter legal process. Cessie Alfonso is aforensic social work vention Pergamon Press. New York, 1987. consultant and president of Alfonso As Randolph B. Ecton: A sociates, a clinical and human resources Era L. Feindler and Rather than suggesting that attorneys Adolescent Anger Control. Cognitive - Be should not be affected by the clients’ management firm, with headquarters in havioral Techniques. Pergamon Press., New behavior, we offer these techniques to Jersey City, New Jersey. Shereceived the York, 1986. increase their awarenessof various issues MSW from Rutgers University in 7977. and their ability to manage them. The She lectures nationwide and writes often management process involves three on issues such as Battered Women’s steps. Syndrome and Cultural Diversity, and is an expert on socio-political issues re First, the attorney identifies these feel lated to defendants. She is bilingual ings, bringing to the conscious level Spanish and bicultural Lalina, bring anger, frustration, andindifference, and ing a perspective that enhances her con resisting ambivalence about seeing the sultancy. client. It is helpful for the attorney to pay attention to the client’s feedback. Frank Badillo is a psychiatric social Is the client saying, I don’t trust you, I worker who serves as Mental Health don’t want to work with you, You’re Consultant and Forensic Consultant to impertinent and impatient; or I’d rather the U.S. Department of Labor, Job have another lawyer. Corps, andAlfonso Associates; serves as Corporate Trainerfor private EAPfirms, Second, theattorney labels the feelings. and is Clinical Supervisor at Riker’s Is HOPELESSNESS For instance, he or she may note, I’m land, under Montefiore Prisons I-!ealth feeling angry, contemptuous, or Services, the largest jail in the world. He frustrated. In labeling the feeling, the received the MSW from Columbia attorney is able to pinpoint the area University in 1980. 1-le lectures nation The behaviors displayed by inmates because of of poverty are multi-faceted. Perhaps the difficulty and to focus on this area, wide on minority mental health, sub is that of stance abuse, issues. most striking of these behaviors apart from other emotions or concerns. and inmate apathy and hopelessness. It is displayed in many ways, but most frequently is expressed Third, the attorney manages the feel The Mentally ill in Prisons: A Review. Ron as mistrust and anger. The mistrust is ings. He or she acknowledges the feel Jemelka, Ph.D; Eric Trupin, Ph.D: John A. directed at anyone representing the system" Childs, M.D.: Ho.cpital and Community including their attorneys, teachers, and ings and how they affect the relation P.sychiatryMay 1989. Vol. 40. No. 5pp. 481 ship with the client. attorney others ttysng to assisL Within a correction The can -491. to not now make a conscious decision to con setting this mistrust often turns anger, only at staff, but other inmates. Incidents of trol the feelings through the manage 2"An Overview of Psychiatric Treatment Ap verbal aggression and physical assault ment techniques outlined earlier. In ad preaches to Three Offender Groups. "Joseph result. The results of such incidents become dition, attorneyscan discuss these feel D. Bloom, M.D.; John MeD. Bradford, M.B.; a cycle that only isolates the inmate, but in ings with colleagues, which can further Lial Kofoed, M.D. Hospital and Community, fact reinforces their feelings of hopeless aid in overcoming resistance they may February 1988. Vol. 39. No. 2pp. 151 - 158. ness. As a barrier to helping the inmate, it may become insurmountable. have in their clients’ defense. The 3The Forgotten HalfPathways to Successfor process of airing concerns enables at America’s Youth and Young Families. The torneys to reduce burnout, a major William 1. Grant Foundation Commission on problem for public defense lawyers. Work, Family and Citizenship. Nov. 1988. BILL READ Director of Classification Services CONCLUSION 4"Homelessness: Understanding the Dimen Franktin County Regional Jail sions of the Problem for Minorities." Richard Coffee Tree Road In undertakingthis processthrough iden J. First See Roth; Bobbie Darden Arewa. So P.O. Box 4068 cial Work, March - April 1988, Vol. 33. No. tification, labeling, and management, Frankfort, Kentucky 40603 2pp. 120- 125 502 875-7398 public defenders become client - centered. That is, as professionals, they "New Poor in America.: Isolationism in an hold to a belief in thefundamental worth International Political Economy. " Social oftheir clients as human beings. Only in Work, May, 1989 Vol. 34. No.3 pp. 227- 233. establishing mutual respect, recognizing their clients’ feelings, and managing 6"Black Families Headed by Single Mothers: Growing Numbers and Increasing Poverty".

JUNE 1991 / The Advocate 7 22% of Kentucky Kids in Poverty 13th Worse in the Nation

More than 1 of every 5 children in Ken tucky lives in poverty, according to a Ranking the Well-being of Kentucky’s Children study froma Washingtonresearch group. The "Kids Count" report, issued by the AVERAGE Center for the Study of Social Policy, Kentucky National Rank ranked Kentucky’s child impoverish ment rate as the 13th worst in thenation. Percent of babies with low birth weight 1988 6.7% 6.9% 24th The report noted that 22.2% of Mortality rate per 1,000 births 1988 10.7 10 35th Kentucky’s children lived in poverty in Death rate per 100,000 children 1988 34.3 33.2 32nd 1989, compared to 21.6% in 1979. Violent death rate per 100,000 teens 1988 79.9 69.7 34th Percent of teens as unwed mothers 1988 8.4% 8.2% 30th Jail rate per 100,000 youths 1987 69 166 4th The overall results, however, gave offi Percent of children in poverty 1985 - 1989 22.2% 20.1% 38th cials some optimism that the lives of Kentucky’s children are improving. But they say much more work is needed. "There’s a long way to go to meet our Accordingto the findings, child poverty, school graduation rate. The survey found responsibility to kids," said David births to unmarried teens and teen-age that 69% of Kentucky’s youth graduated Richart, executive director of Kentucky violent deaths increased dramatically from high school in 1988, up from 65.9% Youth Advocates, a non-profit orgamza nationwide in the last decade. While in 1982, but below the national average tion interestedin the welfare of children. Kentucky ranked 34th overall, Ohio of 71.2%. "But we’re certainly set in theright direc ranked 23rd and Indiana 30th. The state tion." of Vermont, which ranked first, was the Ranking the well-being of Kentucky’s only state to meet all threenational health children. Kentucky ranked 34th among The study used census information and goals for the year 2000 for infant mor the 50 states and the District of Columbia vital statistics to compare conditions of tality, child death rates and the percent based on a compositerating of eight child children in or around 1980 with their age of babies born with a low birth well-being indicators. conditions in the laterpart of the decade. weight. Most of the latest figures were from ADAM CONDO, Kentucky Post 1988. Kentucky ranked 34th among the Kentucky was one of 41 states which Washington Bureau. SOURCE: The 50 states and the District of Columbia, showed an increase in child poverty Center for the Study of Social Policy, based on eight indicators dealing with the during the 1980s, Ms. Weitz said. Washington. Reprinted by permission. health and welfare of children. The The Kentucky Post, February 2, 1991. state’s ranking droppedtwo spots from a The report said Kentucky made progress year ago, although it showed improve during the 1980s on improving its high ment in five of the indicators, including the infant mortality rate and juvenile in carceration. Between 1980 and 1988, the SuR’aYLNG CHILDI’%O°D infant mortality rate improved from 12.9 deaths per 1,000 live births to 10.7, the report says. JUVeI4Il Kentucky’s incarceration rate for youth cRl was only 69 per 100,000juveniles, down from 77 in 1979. The national average is ADIXflON - 166. Richart said the incarceration statis tics are misleading becausethe reportdid notinclude Kentucky youth who are held in juvenile sections of adult jails. About 3,500 juveniles a year are placed in those facilities, he said.

Judith Weitz, who coordinated the study, was not optimistic about the situation nationally. She said the 1980s were a L. "decade of deterioration for children" across thenation. "America’s fate in the 21st centurydepends on how we treatour children," said Ms. Weitz. Copyright 1991, The Cincinnati Post. Reprinted with permission.

JUNE 1991/ The Advocate 8 Kentucky’s Poor Children 4.21 MILLION Combining the Will with the Way FAMILIES RECEIVE AFDC

Who gets AFDC? Childhood poverty has increased such not necessarily improve the quality of that the United States has became the children’s lives - the money must be first civilization in history in which the spent in theright way. Lisbeth Schorr, in poorest population group is children. her important book Within Our Reach: Not coincidentally, between 1978 and Breaking the Cycle of Disadvantage, 1987, national spending on programs for points out that we really do know how to The American Public Welfare Association reported Feb. 27 that, as a result of the children dropped 4%. make a difference in children’s lives, recession, AFDC benefits are going to a how to change what she calls "rotten record 4.21 million families, nearly half a How can the 1991 gubernatorial can outcomes." million more than at the height of the 1981 didates ignore the fact that almost I in 3 recession. And, according to the 1990 Kentucky children are poor? We suspect After reviewing a number of successful "Green Book,’ the authoritative congres that they will not. We suspect that we will model programs, Ms. Schorr concludes sional source of poverty program data: hear the time-worn phrases, the rhetoric that they succeed in helping children and our greatest natural are intensive, The average family size for welfare about children as their families because they two talk investing children and comprehensive, and flexible. We have recipients is three a mother and resource, of in children, though more than 40 percent of saving money in the long run. But will the beginnings of programs with these women on welfare have only one child. the candidates address the real issues sur characteristics in Kentucky in the fami rounding solutions to childhood poverty? ly-based servicesmodel for child protec More than 85 percent of welfare families are tive services, the family resource and headed by women who are divorced or SELF-SUFFICIENCY youth service centers in the Kentucky separated from their spouses 34.6 percent Education Reform Act, and the plans between ages 20 and 24. A buzz word for the 1990s is self-suf developed to serve children with serious and Just over 6 percent of AFDC mothers work ficiency. The idea that individuals and emotional disturbances. In these eitherfull or part time. families both should and can provide for other current and future programs, we themselves - if they just work hard must heed Ms. Schorr’s warnings against While a significant percent of all persons on enough - has broad appeal. How many the "lure of replication through dilution" welfare will be enrolled for less than two Kentuckians say "Well, I grew up poor, and the heavy hand of bureaucracy. In the years 30percent or less than fouryears 50 and I turned out all right?" first instance, the temptation is to look at percent, a majority of persons enrolled in a model program that is working and AFDC at a point in time are in the midst of Despite this claim, there are a number of expand it but without thesame amount of what will be long periods of welfare receipt trends that suggest self-sufficiency will thought and resources. The second warn 65 percent: - the average monthly payment to an AFDC two-person household vanes continue to be an elusive goal for many ing addresses the fragile nature of the from state to state, from Alabama’s $88 to families no matter how hard they are helping relationship and thenegative im Alaska’s$752. willing to work. Manyjobs simply do not pact that standardizationcan haveon that pay enough to support a family, given the relationship. In fiscal year 1989, AFDC expenditures, rising costs of child care and health care. which are shared by the Federal government Too few people realize that most poor Our challenge to the gubernatorial can and the States, totaled $17.5 billion. Other families are working families. In fact, at didates is not more talk about the needs costs are incurred because AFDC families least 1 in 6 poor children has a full-time of Kentucky’s poor children but im are automatically eligible for other govern ment assistance programs, such as Medicaid employed parent. A study conducted in plementation of real solutions. Lou Har and Food Stamps. Louisville several years ago estimated ris in a landmark 1986 poll of American that a single parent with two children attitudes towards children found "people Until October of 1990, only single, non- would need to earn over $7 per hour to not only want to help children generally, working mothers with dependent children meet the family’s most basic needs. they want particularly to help children were automatically eligible for AFDC. who are living in poverty." He warned Although education and training that politicians who ignore these plead The 1987 Family Support Act, however, extended benefits to families where the programs for the unemployed are ings do so at their own risk. And, we for up to six months in laudable, the benefits own father is unemployed of these programs would add, at the risk of our futures. any 12-month period. That same legislation without economic development are emphasized child-support enforcement and dubious. Wecantrain peoplefor jobs, but DEBRA MILLER job training for AFDC heads of households. where will they work? In spite of job Deputy Director training programs, a large number of Kentucky Youth Advocates, Inc. Reprinted by permission. National Cathotic children will continue to live in poverty 2034 Frankfort Avenue Reporter, P.O. Box 419281, Kansas City, because their parents will have no jobs, Louisville, KY 40206 Mo. 64141. The article appeared in their only part-timejobs, or jobs that only pay 502 895-8167 March 29, 1991 issue. the minimum wage with little chance of advancement. Reprinted from Kids Matter, thenewsletter USE WHAT WE KNOW of Kentucky Youth Advocates by permis sion. Simply spending money on children will

JUNE 1991 / The Advocate 9 THE CRIMINAL CASELOAD IN KENTUCKY TRIAL COURTS: A COMPARATiVE ANALYSIS OF CASES FILED VS THE DPA CASELOAD

BILL CURTIS

CASE COUNTING DIFFICULTIES thesereporting problems, thenumbers of casespresented for the DPA in this article KRS 31.110 Persons benefited Determinationofthe criminal caseload in are significantly less than the "real" I A needy person who is being detained Kentuckyis a confusing and difficult task caseload. by a law enforcement officer, on suspicion given the data available and the manner of having committed, orwho is underformal in which it is organized. This is true for DPA’S CA-SE RESPONSIBILITY charge of having committed, or is being both the Administrative Office of the detained under a conviction of, a serious Courts AOC and the Department of The types of cases requiring repre crime, is entitled: Public Advocacy DPA. sentation by a public advocate are set forth in the Kentucky Revised Statues, a To be represented by an attorney to the At present, neither agency’s data gather Chapter 31. Eligible for representation same extent as a person having his own compilation systems are capable counsel is so entitled; and ing and are needypersons charged with a felony, b To be provided with the necessary ser of providing a precise criminal caseload a misdemeanor, a traffic offense or any vices and facilities of representation includ count. In each agency’s caseload data offense any penalty for which includes ing investigation and other preparation. The summaries there are categories of cases thepossibility of confinement or a fine of courts in which the defendant is tried shall which include both criminal and non- $500 or more; or any legal action which waive all costs. criminal cases. It is commonly known could result in the detainment of a defen that many cases in thetrial courts are not dant. The DPA is also required to provide 2 A needy person who is entitled to be criminal. There are thousands of civil representation to needy persons in in represented by an attorney under subsection cases. What may not be commonly voluntary commitment proceedings, 1 is entitled: known is that several types of cases re KRS Chapter 202A. These cases are not a To be counseled and defended at all quiring representation by the DPA are criminal. Additionally, the DPA is re stages of the matter beginning with the ear not criminal in nature. For example, the quired by statute to provide repre liest time when a person providing his own DPA’s Division of Protection and Ad sentation to needy juveniles charged with counsel would be entitled to be represented vocacy provides representation to in felonies, misdemeanors and status offen by an attorney and including revocation of digent developmentally disabled per ses, KRS 31.100. Status offenses arenot probation or parole; sons, KRS 31.0309. crimes. They are offenses for which per sons may be detained by virtue of their KRS 31.100 Definitions A significant problem with the DPA’S age, e.g., truancy, curfew violation, case count is that contract attorneys in runaway. 4 Serious crime includes: many counties consistently report no a A felony; cases. During Fiscal Year 1990 no CASELOAD FIGURES b A misdemeanor or offense any penalty defender cases were reported from forwhich includesthepossibilityofconfine Anderson, Bell, Bracken, Crittenden, Table I shows District Court AOC sum ment or a fine of$500 or more; Cumberland, Fleming, Grant, Hancock, mary data forFY 1985 throughFY 1990. c Any legal action which could result in Jessamine, Lawrence, Mason, Scott, Civil, small claims, probate, and domes the detainment of adefendant; and Spencer, Union, and Webster counties. tic violence cases are not listed. The first d An act that, but for theage ofthe person Additionally, during FY 1990 the Fayette column, felonies, includes all persons involved, would otherwise be a serious crime. County caseload was under reported by charged with serious offenses. These of an estimated 5,000 cases. As a result of fenses, punishable by a year or more in

TABLE I AOC KENTUCKY DISTRICT COURT CRIMINAL CASELOAD FY 55. FY 90

FEL %Change MSD %change JUV %change TRAF %Change MH&DIS %Change TOT AL %Change FY85 30,305 174,018 36,175 255,103 5,027 245,525 FY86 33,480 10.5 175,856 1.1 39,254 8.5 279,498 9.6 3,942 -21.6 252,532 2.9 FY87 35,540 6.2 145,677 -17.2 40,769 3.9 297,754 6.5 4,055 2.9 226,041 -10.5 FY88 35,636 .3 142,731 -2.0 30,113 .26.1 280,690 -5.7 4,114 1.5 212,594 -5.9 FY89 40,065 12.4 152,125 6.6 32,709 8.6 274,804 -2.1 4,761 15.7 229,660 8.0 FY90 43,290 8.0 168,401 107 37,834 15.7 317,542 15.6 5,458 14.6 254,983 11.0 6 Yr Avg. 36,386 159,801 36,142 284,232 4,560 236,889

JUNE 1991 / The Advocate 10 TABLE 2 THE SECRET OF NO COUNSEL DPA DISTRICT COURT CASELOAD FY85-FY9O IN DISTRICT COURT

FEL %Change MSD %Change MH&DIS %Change TOTAL %Change The hidden little secret in the criminal jus tice system is that many, if not most, of the FY85 13,854 31,689 1,698 47,241 peopledealt with in districtcourt do nothave FY86 16,328 17.9 36,060 138 1,720 1.3 54,108 14.5 lawyers, and would be eligible for apublic FY87 18,258 11.8 37,710 4.6 1,744 1.4 57,712 6.7 defender. The sad fact is that we have not FY88 18,120 -.8 35,912 -4.8 1,593 -8.7 55,625 -3.6 funded counsel for all thosewho are eligible FY89 21,694 19.7 38,216 6.4 1,817 14.1 61,727 11.0 to be appointed. We could not representthe FY90 23,668 9.1 38,350 .4 2,051 12.9 64,069 3.8 50-75% or so of thepeople who are eligible in district cowl. So, people plead guilty 6yr. without counsel and often withoutknowing Avg. 18,654 36,323 1,771 56,747 why they need counseL Yet, increasingly misdemeanors are used later against our clients. A lengthy mis prison, are defined by statute. Felony tnct court misdemeanor columns cannot demeanor record hurts both in a Truth in cases in which a district judge rules that be made due to the fact that the DPA Sentencing hearing before the jury and at there is a probable cause to believe a includes all of its juvenile and traffic sentencing before theCourt. Prior DUIs and felony offense has been committed are cases with its felonies and mis suspended licenses can have serious bound to the GrandJury for a hearing, if demeanors. Most juvenile and traffic ramifications. Unfortunately, the reliability Jury rules there is suffi cases which the DPA provides repre of many of these pleas of guilt is suspect the Grand that for without cient evidence to believe that a felonyhas sentation are either felonies or mis because many of them are entered the advice of counsel. been committed, a felony indictment is demeanors. Nevertheless, over the six returned. The case then goes to the circuit year period, the trend of DPA mis Another interesting part of this is that DPA court. See Table 3, AOC Circuit Court demeanor cases is oneof steady increase, was underfunded in 1985. From 85-90, Criminal CaseloadFY 1985 - FY 1990. except for FY 1988 when there was near DPA’s district court caseload increased by ly a 5% decrease. 36%. We have yet to catch up, but instead Of the 43,290 felonies filed in district go further in the hole each year. Funding court during 1990 only 13,532 result From 1985 to FY 1990 the DPA continues to be the cruxof theproblem. And FY FY we don’thave in indictments by the Grand Juty. misdemeanor caseload increased by because we arc underfunded, ed the resourcesto attack the failure to appoint Many cases bound to the GrandJury are 21%. During the same period the AOC eligible persons. dismissed by the GrandJury due to a lack district court caseload went up and down, of evidence. In addition, many cases ini but the FY 1990 caseload was 3% lower ERWIN W. LEWIS tially filed as felonies in the district than it was in FY 1985. Assistant Public Advocate courts are dismissed by the court or Director, DPA Clark/Jackson/Madison amended to misdemeanors. The juvenile column for AOC district Richmond, Kentucky 40475 court Table 1 includes several non- 606 623-8413 The AOC district court data Table 1 criminal cases. These are depend indicate that for thefelony category from ency/neglect cases, termination of paren FY 1985 through FY 1990 there were tal rights cases, status offenses, and pater TABLE 3 increases each year with significant in nity cases. Additionally, it includes all AOC CIRCUIT COURT creases in 1986 and 1989, 10.5% and juveniles accused of criminal offenses. CRIMINAL CASELOAD 12.4 %, respectively. The DPA district Table 1 shows steady increases in the FY8S-FY9O court caseload follows a similar trend district courts except for FY 1988 when See Table 2, DPA District Court there was a substantial decrease 26.1% FELONY %hange

- during 1990 when there was an Caseload FY 1985 FY 1990 during the and FY FY85 12,612 same timeperiod, butwithmore substan increase of 15.6%. The DPA district FY86 13,380 6.1 tial increases during FY 1986 17.9% court caseload Table 2 does not have a FY87 13,184 -1.5 and FY 1989 19.7%. juvenile column because, as previously FY88 12,518 -5.1 mentioned, these cases are placed in the FY89 14,411 15.1 The AOC district court misdemeanor appropriate felony or misdemeanor FY90 13,532 -6.1 column Table 1 contains all persons category. charged with the less serious crimes, 6Yr. punishable by a jail sentence of twelve The AOC district court column labeled Avg. 13,273 months or less and/or a fine of $500. All Mental Health and Disability Table I misdemeanor offenses are defined by includes involuntary commitment cases TABLE 4 statute. Table I indicates that mis and disability cases. The disability cases DPA CIRCUIT COURT demeanor cases in Kentucky decreased mostly involve competency issues. The CRIMINAL CASELOAD significantly 17.2% in FY 1987 and court appoints attorneys to represent FY85-FY9O increased significantly 10.7% during needy persons in disability cases. The %Change %of IND. FY 1990. DPA has no responsibility for repre FELONY sentation in this area. The DPA District. FY85 7,638 60.6 The overall trend from FY 1985 through Court Mental Health column Table 2 FY86 7,370 -3.5 55.1 FY 1988 is one of decline. Although contains only involuntary commitment FY87 6,946 -5.8 52.7 misdemeanors increased substantially cases. There were significant increases FY88 6,573 -5.4 52.5 during FY 1989 and FY 1990, they still during the last two years, 14.1% in 1989 FY89 6,865 4.4 47.6 have not reached the peak level of and 12.9% in 1990, likely the result in FY90 7,034 2.5 52.0 175,856 cases filed during FY 1986. changes in the law which has made all mental health cases involuntary. Since 6Yr. Avg. 7,071 A direct comparison between the DPA detainment is possible in all cases, all misdemeanor Table 2 and the AOC dis indigents involved in these cases are

JUNE 1991/The Advocate 11 including all juvenile and all mental ATTITUDES NEED CHANGING health and disability cases in the total THE DAMAGE OF BEING even though some of these cases are not UNREPRESENTED Manyaccused indigent citizens who appear criminal. in district court are unrepresented by coun The majority of people who appear in Dis that sel. Often, the assumption is anyone If these caseload/case counting assump trict Court cannot affordto hire counsel;yet, who has ajob does not qualify for a public apublic defender is not appointed to repTe defender. Obviously, there are many defen tions are accepted, it is possible to discuss sent them despite the mandate in RCr 3.05 dants who are marginally employed and a total" district court criminal caseload thataJudge shall appointcounsel unless the cannot afford to hire counsel. If family or as shown in theTotal column in Table 1. defendant electsto proceed without counsel. friends do not have money and retain an The data indicate that the "total" district Never have I seen a judge inquire as to attorney, the defendant may end up repre criminal court caseload decreased sig whether a defendant without counsel has senting himself. Sometimes the judge will nificantly in 1987 10.5% and 1988 voluntarily, knowingly, and under appoint a public defender at arraignment 5.9%. During 1989 8% and 1990 standingly waived counsel. Most of these because the defendant is in jail or un 11% the total criminal caseload in people who are not represented by an attor employed, but will permit thepublicdefend creasedsignificantly. However, the 1990 ney plead guilty without knowing the ele erto withdraw when he informs the judge: ments of the crime, without knowing any I the defendant now has a job; or 2 acash total of 254,983 represents an increase of possible defenses they might have to the bond has been posted for the defendant; or 4% over the 1985 total of 245,525 cases. charge. Most of these guiltypleas are subject even 3 the Commonwealth does not to challenge because there is no plea collo routinely seek jail time for this offense al The DPA total district court caseload has quy and no finding that the plea is entered though a substantial jail term may be avail increased steadily, with the exception of voluntarily and intelligently. able. 1988. The 1990 total of 64,069 cases represents an increase of 36% over the Lured by the prospect of merely paying a District court is just not taken seriously by 1985 Note that fine,many indigentclients are so happy they some participants, and indigent defendants total of 47,241 cases. will not be incarcerated that they promise to unrepresented by counsel are an everyday these totals are somewhat low due to pay a fine--a promise they find difficult to occunence. This is unlikely to change un some non-reporting and under reporting fulfill when their only source of income is less there is achange in attitude by the key of cases in 16 counties. welfare or a minimum wage job. And, if participants in the system - judges, they cannot pay the fine, once again they prosecutors and public defenders. Particularly noteworthy is the fact that often are without counsel to defend them many indigents are without counsel even selves in court on a contempt charge for ROBINSON GAIL though the DPA provided legal repre non-payment of the fine. All too often the McNally & Robinson fme that looks so good when they pleaded Attorney at Law sentation to 64,069 needy persons ac guilty is then converted into a jail sentence 513 Capitol Avenue cused of crimes in 1990 in the district that they must serve. P.O. Box 1243 courts. However, this figure constitutes Frankfort, KY 40602 only 25% of thetotal number of criminal The consequences of a misdemeanor con 502 227-2142 cases filed in the district courts if the viction are rarely understood by the defen caseload/case counting assumptions ac dant Only later, they find out that the con cepted. viction for DUI, Driving While License eligible for the services of a public advo Suspended, Trafficking in Marijuana, Un all cate. A crucial question which should be authorized Use of a Motor Vehicle are enhanced upon a subsequentoffense. In ad raised is whoprovided representation for dition, these misdemeanor convictions are The traffic colunm is by far the largest the other 75% or 190,914 district court often used by the prosecution during the single category of cases reported by the cases. Did they all retain privatecounsel? Truth in Sentencing hearingof a felonytrial. AOC Table 1. These totals include all It is highly unlikely since it can be con A long list of relativelyminormisdemeanor felony andmisdemeanor traffic offenses servatively estimated that 75% of the convictions is damaging evidence to a jury and all moving violations which are not people appearing in the criminal courts that now must sentencethe defendant. criminal cases. DUI cases are in this areindigent.1 In any event, this is a rather category. There were 46,094 DUI arrests important question which deserves a LYNDA CAMPBELL Assistant Public Advocate in Kentucky during 1990. It is safe to say precise answer. Clark/Jackson/Madison County Office that nearly all of them found their way Richmond, Kentucky 40475 into the district courts. The DPA is Tables 3 and 4 show the circuit court 606 623-8413 responsible for providing representation criminal caseload as summarized by the to needypersons charged with felonyand AOC and the DPA. Analysis of this data misdemeanor traffic offenses, butnot for is farless complicatedthan for thedistrict moving violations. TheDPA traffic cases courts. are included in their respective felony and misdemeanor columns in Table 2. Thedata listed in table 3 lists thenumber crimes in the circuit courts. Who of indictments returned or felony cases provides counsel for the other half? DISTRICT COURT CRIMINAL filed in the circuitcourts from FY 1985 CASELOAD ESTIMATES through FY 1990. In three of the five AOC staffconducted an analysisof their years the numberof cases decreased, but 1988 circuit courts data and foundthat in Given the data available, is it possible to due to a 15% increase during 1989 the 48% of the cases a public advocate tabulate a total district court criminal 1990 total is 7.3% higher than the 1985 provided representation. This finding caseload? Ifa couple of assumptions are total. Table 4 reflects that due to thiee supports the DPA data which indicates made, a reasonable estimate can be of successive yearsof declinethe DPA cir that it is providing representation in fered. However, a precise number cannot cuit court caseload was 8% lowerin 1990 about half of the cases filed in the circuit be obtained. Since the large majority of than it was in 1985. courts. 32% of the defendants were rep traffic cases are not criminal, it makes resented byprivate attorneys. 0.6% of the sense not to include them in the Total The data in tables 3 and 4 indicate the fact defendants represented themselves. column Table 1. It also seems that the DPA provides representation in And, finally, there was an unknown reasonable to attempt to cancel some of slightly more than half or approximately category of 13.6%. The AOC is making the discrepancy caused by not including 7,000 defendants per year charged with a concerted effort to obtain and provide criminal traffic offenses in the total by on an annual basis data on types of rep-

JUNE 1991 / The Advocate 12 tion Specialist evaluating grant projects FOOTNOTE THE MANY UNREPRESENTED and grants awarded by the Law Enforce ment Assistance Administration LEM. J. Thomas McEwen and Elaine Nugent My first reaction to thestatistical data is that From 1977101980 Bill served as the coor- "National Assessment Program: Survey the comparison with AOC’s statistics and dinatorfor aIILEM grants awarded to the Results for Public Defenders." Institute for Va., 1990. DPA’s is not reflective of the experience in Kentucky court system, the Attorney Law and Justice. Alexandna, the Paducah office. In CircuitCourt, virtual General’s office, Commonwealth’s Attor ly no one goes through unrepresented by someone, whether it’s a DPA attorney or neys, and the Department of Public Ad private attorney. In reviewing the last couple vocacy. ofmonths in McCracken County and Graves County, it would appearthat DPA represents Bill began with DPA in 1980 as the assis 75 to 80% of the cases. The remainder tant project director of the Southeastern would logically be represented by private Public Advocacy Region SEPAR with counsel. primary responsibility for establishing the A largerquesiion is what hashappened to all DPA ‘S network of regional offices which these people in District Court. We know now stretchesfrom Pikeville to Paducah. from experience that a substantial number He designed and implemented the DPA’s enter pleas at arraignment It can be safely caseload data collection system presently stated that the vast majority of those who do in operation. He is the DPA ‘s chief re not have representation by DPA go through search analyst and statistician. Being a the system unrepresented. From our ex very resourceful type ofperson Bill is con perience in this office, the overwhelming stantly looking for new ways to betterserve majority of cases in District Court that are represented by counsel are represented by our clients. In the immediate future he will DPA. If the itatistica prove out that in fact be branching out into the areas of jury IS FULL KNOWLEDGE OF DPA only represents 25% of Distnct Court challenges and change of venue surveys. RIGHT TO COUNSEL cases, I believe it would be safe to say that He has a B.A. Sociology, Washington State PROVIDED? about 70% go unrepresented. University, 1968 and a MA. Sociology, Kansas State University, 1972. The number of persons unrepresented by DONALD S. MUIR counsel at the District Court level in Ken Assistant Public Advocate tucky may well deserve greater scrutiny; Department of Public Advocacy however, the issue needs refinement. The 400 Park Avenue AFFORDING THE RIGHT TO central inquiry should relate to determining Paducah, KY 42001 COUNSEL the number of individuals who proceed 502 444-8285 through the system without an attorney in It is my impression that the fact that DPA the absence of a knowing, intelligent and handled only 25% of the District Court voluntary waiver. A valid waiver of the criminal cases filed in Kentucky in 1990 right to counsel is of no particular conse resentation in both the district and circuit invites scrutiny. I would expect the mis quence to the Department. The problem demeanor percentage to be lower than the courts. arises where judges and prosecutors, while felony percentage of cases handled by DPA not necessarily acting maliciously, concern for a variety of reasons including but not themselves more with clearing dockets than CONCLUSION limited to the following: insuring that each defendant acts with full knowledge of his right to counsel. A prob In sum, neither the DPA nor AOC at A. the tendency of more persons charged ing inquiry into a defendant’s true under present is able to provide thedata neces with offenses below the felony level to standing of the pitfalls of proceeding saiy to answer some verybasic questions proceed pro se, and withoutan attorney seldom accompanies the B. the tendency of many Judges to require about Kentucky’s criminal caseload. For "processing" of relatively minor crimes. A defendants to retain their own counsel in defendant is, at best, told that if he wantsto example, what precisely is the state’s misdemeanormatters as opposed to felonies criminal caseload? Exactly take this "really good deal" and walk out of how many due to the much lower cost of retaining court that daythat all he needs to do is waive cases is DPA handling? The DPA has counsel in less serious matters. his right to a lawyer and enter a plea. After recently purchased a new computer sys going through this process several times, the tem and is in the process of designing a I do know that in Boyd County, Kentucky, Commonwealth lowers the boom after new caseload data collection and report the rights of indigents to Court-appointed which appointed counsel finally arrives and ing systemwhich will provideanswers to counsel in the non-felony District Court faces a substantial criminal history accrued nearly question matters is protected to the maximum degree by a defendant never represented by an at any about its caseload. due to judicial diligence in adhering to the We expect the new system to be opera torney who could have held theprocess par requirements of KRS Chapter 31. Although tially in check. Elimination of this problem tional by July 1. Constant efforts are I have no precise figures to cite, it would rests with the court insuring that every being made to obtain caseload data from appear to me that my office is handling far defendant truly understands the consequen counties where there is either under more than 50% of all District Court matters ces of proceeding without an attorney and reporting or no reporting. involving clients represented by counsel. the corresponding entitlement to free repre sentation if indigent BILL CURTIS The major concerns from my standpoint are to ensure the is Chief Research Analyst and Statistician that right to counsel JAY LAMBERT protected fairly and uniformly across the Jefferson District Public Defender Administrative Division state and that proper accounting and report Frankfort 200 Civic Plaza ing is taking place so that the DPA figures 719 West Jefferson Street are accurate. Louisville, KY 40202 Bill beganhis career in state government in 502625-3800 1973 with the Department of Corrections WILLIAM MIZELL as a Probation and Parole Officer in Lexi Public Defender Boyd County ngton. For a short period in 1975 he P.O. Box 171 worked the Department of Corrections Catleusburg, KY 41129 606739-4161 central officeas a Research Analyst. In the latter part of 1975 he began work with the Kentucky Crime Comnussion as an Evalua

JUNE 1991/The Advocate 13 NATIONAL ASSESSMENT PROGRAM: 1990 SURVEY RESULTS FOR PUBLIC DEFENDERS 75% ofAccused Are Indigent

INTRODUCTION increased budget in the past three years, Rates for the average public defender’s more than 70 percent felt the financial office were the same for both criminal The National Institute of Justice NIJ resources available to their office were and civil cases--$40.00 in-court and has conducted the National Assessment inadequate. $30.00 out of court. In thelargerjurisdic Program NAP over the past nine years tions, the in-court rate for criminal cases as a means of identifying and prioritizing Ninety-four percent of the respondents is $40.00, and the rate for out of court the needs of local criminal justice agen feltthepublic defender’s budget wasless criminal cases is $27.50. In-court civil cies. In 1986 and again in 1990, NIJ than the prosecutor’s budget that covers case rates are $36.00, and out of court contracted with the Institute for Law and indigent defense cases. Ninety-one per rates are $31.00. The average hourly Justice lU to administer the NAP sur cent said theportion of theprosecutor’s overhead rate for private attorneys was vey of local agencies. Nil published budget that covers the cases the public $70.00. The hourly rate for private attor several Research in Action issues detail defender’s office handles is higher. Fur neys in large jurisdictions was $150.00. ing the 1986 results. There were also thermore, less than 1 percent of the Maximum court-appointed counsel fees several follow-up research projects in respondents said their office received for specific cases are as follows: cluding the investigation of high-speed money from the federal government for police pursuits, computer crime, drug activities related to indigent defense. Of Type Average Large testing in police agencies, narcotics en those who do receive federalfunding, the of Case Agency Agency public housing, and the use was Sixty-two Max. Max. forcement in median amount $50,000. Fee Fee of microcomputers in law enforcement. percent of the respondents said the For the 1990 survey, lU again mailed prosecutor’s office received money for Misdemeanors $500.00 $500.00 questionnaires to over 3,000 criminal indigent defense cases. The median Felonies 1,200.00 1,225.00 justice practitioners and policy officials amount offederal funding was $100,000. Death Penalty 3,500.00 17,500.00 to determine concerns and trends among In addition, more than 60 percent felt the Juvemie 775.00 500.00 such things as problems with thecriminal attorney salaries were lower for public Mental Health 212.50 -- justice system, workload, operations and defenders than for prosecutors. procedures, staffing, and department CASELOAD budgets. The survey also found that the typical public defender’s office is staffed with The survey found that an increasing The surveysample included 375 counties six attorneys. According to the survey caseload is a major concern of public across thecountry. Of these counties, 175 results, themajority of public defenders’ defenders. Respondents were asked to had populations greater than 250,000, responsibilities include misdemeanors, rate the degree to which certain factors and 200 counties had populations less felonies, death penalty trials, drug and had contributed to the increased than 250,000. Public defenders in the juvenile cases, and mental health. In workload. The results arelisted below. largest city ofeach county received ques 1990, the typical public defender’s office tionnaires to complete. Of the 292 sur was assigned 1,500 felony cases and 1 * 88 percent of the respondents felt the veys mailed to public defenders, 194 death penalty trial. The ,nedianfigurefor increased caseload was caused by in were returned--a response rate of 66 per the percent of accused who qualify for creased drug cases. cent. indigent defense was 75. Ninety percent ofaccusedwho qualify for representation * 82 percent said a major cause was that The following sections highlight the key are represented by the public defender. prosecutors overchargepeople when they findings from the 194 public defender Forty percent of the respondents said indict them. surveys. Attached to this report are the their indigent defense system was both detailed results in survey format. public defender and court-appointed * 82 percent also said increased sentencing counsel. One-quarter said it was public for certain crimes was a problem. BACKGROUND defender only. Furthermore, in those areas where there is court-appointed * 79 percent felt the number of attorneys The survey found that the median budget counsel, the majority of respondents said was inadequatefor the caseload. for public defenders’ offices is $753,000. judges administer the system. The median budget in the overall juris * 78 percent also stated that acause was the diction was $987,364 for indigent In largerjurisdictions, public defenders’ lack of resources. defense systems. Over 80 percent noted offices arestaffed with 99 attorneys. The that this was an increase from threeyears median operating budgets for larger of * 77 percent said the number of public or ago. Twenty percent said the increase fices is $10,624,292. The overall budget contractdefenders has not kept pace with was greater than 30 percent. Two-thirds for thejurisdiction for indigent defense is increasing caseload. of the respondents said they received $16,900,000. Large offices are also funding from the county government. busier, In 1990, the typical large office Almost 60 percent also received funding had 18,000 felony cases and 2.5 death from the state government. Despite the penalty trials assigned to it.

JUNE 1991 / The Advocate 14 * 73 percent of the respondents noted that * 65 percent stated that they needed more * 84 percent felt there is a need for alcohol mandatory sentencing contributed to the clerical staff. diversion programs. increase. * Halfnoted aneed for more paralegals. * 64 percent of therespondents said alarger * 73 percent also said a major cause was percentage of drug cases are going to that police overcharge people when they Staff recruitment and retention are also trial. arrest them. problems for public defenders. Low salaries, a lack of resources, and heavy * 22 percent noted increases in the number In addition to the overall increased caseload have all contributed to theprob of multiple defendant cases. workload, survey respondents noted in lem. Specific survey results are as fol creases in the number of particular types lows: * 20 percent said there was a need for the of cases including drug and child victim suspension of driver’s licenses for drug cases. Furthermore, thesurvey found that * 66 percent of the respondents said low offenses. felony cases are becoming increasingly salaries or court fees were a problem for complex, contributing to theburgeoning staffrecruitment. 68 percent said it was a OPERATIONS/PROCEDURES caseload. Some of these results are problem with staff retention. shown below. The changing nature of crime and * 65 percent stated that heavy caseload criminals in the past few years has had an * Nearly two-thirds of the respondents felt made it hard to recruit staff. 76 percent impact on the operations andprocedures that child victim cases had increased. said burnout from heavy caseloads were of public defenders’ offices. The survey a major problem with staff retention. found that adequate sentencing alterna * 63 percent said the number of drunk driv tives and diversion programs are a major ing cases had increased. * 65 percent feltthat lack of resources con concern of public defenders, particularly tributed to staffrecruitment problems. 50 in the area of narcotics and alcohol. * 58 percent stated that felony cases are percent felt the same way in respect to becoming increasingly complex. staffretention. * 85 percent of the respondents expressed a need for pretrial diversion programs. * 54 percent said the number of sexual In respect to staff training, public abuse cases had increased in thepast three defenders were asked which areas they * 68 percent said intensive probation was years. felt more training was needed in. Some needed. of the results are listed below. * Half of the respondents cited an increase * 68 percent felt more community service in the number of death penalty cases. * Two-thirds of the respondents felt ad programs were needed. vanced trial practice skills were needed. * 49 percent noted an increase in the num * 65 percent called for conditional dismiss ber of domestic violence cases. * 66 percent said training was needed for al e.g., suspended proceedings. stress management. Increased caseload has also affected plea * 64 percent also said there was aneed for bargaining. More than three-quarters of * 60 percent expressed a need for new work releasejail programs. the respondents said that the number of defender or court-appointed attorney pleabargains per attorney has risen as the training. * 62 percent expressed a need for short- number of defense cases has risen. More term community incarceration. than halfof therespondents felt that high * 55 percent noteda need for more training court caseloads have increased judge on death penalty defense. * 37 percent said shock incarceration i.e., pressure on the defense as well as the boot camps was needed. prosecution to settle cases. * 53 percent expressed aneed for basic trial practice skills. Pretrial problems also plague public Respondents were also asked how certain defenders’ offices. Some of the results factors contributed to court delays in * Half of the respondents wanted training found by the survey are listed below. their jurisdiction. The survey found that oncomputers for accessto legal resources the majority ofpublic defenders feltpoor such as Westlaw and Lexis. * 76 percent said a lack of effective early case scheduling, failure of the prosecu screening by prosecutors was a major tion to comply with discovery rules, and THE EFFECT OF NARCOTICS problem. inadequate computer information sys CASES ON PUBLIC DEFENDERS tems were the primary causes of court * 52 percent noted pretrial release proce delay. As noted earlier, increasing numbers of dures as a problem. drug cases area majorcause of increased STAFFING workload in the court system. With in * 35 percent stated that a lack of formally creasing narcotics cases, public defend accepted procedures for plea negotiations Staffing problems have always plagued ers noted an increase in the number of was a problem. the criminal justice system, including drug cases going to trial, mandatory sen public defenders. Most of the respon tencing, and multiple defendant cases. In terms of courtroom procedures, dents noted shortages in all aspects of Respondents also noted a need for alter respondentscited problems in the follow staffing. Specific results include the fol native sentencing and diversion pro ing areas: calendaring system, lack of lowing: grams for drug offenders. Some results foreign language interpreters, system of foundby the survey are as follows: voir dire, andmanagement of victim-wit * 80 percent expressed a need for more ness appearances. attorneys. * 87 percent expressed a need for drug diversion programs. The survey also identified a need for * 68 percent said they needed additional various management information sys investigators. tems. The needs which ranked highest

JUNE 1991 IThe Advocate 15 were prior criminal history of defendant, caseload reports and analysis, and vic National Assessment Program Question tim/witness names. Specific results are as follows: naire for Public Defenders N=194

* Two-thirds said improvements needed to Background be made on prior criminal history of defendant. 1. What type of Indigent defense system does your jurisdiction have? Check one only. * 57 percent said caseload reports and analysis needed to be improved. 24.2% a. Public defender only. 2.1% b. Court-appointed counsel only. * Halfof the respondents expressed a need 7.2% c. Contract defender only. for profit = 4; non-profit = 5 for improvement on victimfwitness 40.2% d. Public defender and court-appointed counsel. names. 8.2% e. Public defender and contract defender. for profit = 5; non-profit = 5 * 49 percent said there was a need for a 12.4% 1. Public defender and court-appointed counsel and contract defender. management information system on co for profit = 13; non-profit = 6 defendant information. 5.2% g. Court-appointed counsel and contract defender. for profit =2; non-profit =6

* 48 percent felt improvements should be 2. If there is a court-appointed counsel system in your Jurisdiction, who made in attorney schedule conflict. administers It? Check one only.

* 47 percent expressed 16.5% a. Full-time administrator. a need for pretrial 10.3% b. Part-time administrator. diversion evaluation. 12.9% C. Defender. 30.4% d. Judge. The results of the survey offer little surprises in terms of organization 3, Whatpercentage of accused in your jurlsdiction qualify for Indigent defense problems. As always, there are sig representation? Median = 75.0 nificant budgetary and staffing problems. However, it is evident from the results of 4. Whatpercentage of accused who qualify for representation does your office the survey that the criminal justice sys represent? Median = 90.0 tem is facing many changes. The effect of narcotics cases on public defender’s 5. What Is your office’s 1989 operating budget? Median = $753,000 offices has been substantial. Drug cases have caused increased workload and 6. What Is the current operating budget of the overall indigent defensesystem court delays as well as changes in sen in your jurisdiction? Median = $987,364 tencing guidelines, laws, and more. As one public defender in South Carolina 7. What is the source of funding for your office? Check all that apply. said, "The caseloads dictate many decisions in thedispositions ofcases, i.e., 3.1% a. Federalgovernment. a more favorable plea bargain will be 59.8% b. State government. offered because there is a need to move 65.5% c. County government. the case or a defense lawyer will accept 8.2% d. City government. an unfavorable plea bargain because of 1.0% e. Foundation grants. 0.5% f. Donations. the [burden] of a large caseload." 8. Does from the Federal government for activities J. ThOMAS MCEWEN your office getany money ELAINE NUGENT related to Indigent defense? If so, how much? Median = $50,000 Institute for Law and Justice, Inc. 9. Does get from the Federal government 1018 Duke Street a. the prosecutor’s office any money Alexandria, Va. 22314 for activities related to prosecuting cases Involving Indigent defendants? 703684-5300 61.5% Yes lf"yes," howmuch? Median=SlOO,000 38.5% No Reprinted by permission. 10. a. How does the Indigent defense system budget in your Jurisdiction compare to the portion of the prosecutor’s budget that covers Indigent defense cases? Is the Indigent defense system budget? Circle one only.

Greaterthan the prosecutor’s 2.9% Equal to the prosecutor’s 3.5% Somewhat Less than the prosecutor’s 25.0% Significantly Less than the prosecutor’s 68.6% b. How does your budget compare to the portion of the prosecutor’s budget that covers the cases your office handles?

Greater than the prosecutor’s 1.1% Equal to the prosecutor’s 8.0% SomewhatLess than the prosecutor’s 23.4% Significantly Less than the prosecutor’s 67.4%

JUNE 1991 / The Advocate 16 11. Are the attorney salaries in your office in comparison 19. How would you rate the financial resources available to your to those in the prosecutor’s office? Circle one. office? Circle one only.

Greater than the prosecutor’s 4.3% Very adequate 1.6% Equal to the prosecutor’s 32.8% Adequate 28.1% Somewhat Less than the prosecutor’s 31.7% Inadequate 50.5% Significantly Less than theprosecutor’s 31.2% Very Inadequate 19.8%

12. If there is a court-appointed counsel system in your Criminal Justice System Problems jurisdiction, what hourly rate do counsel earn for the following: 20. Listed below are some of the most serious criminal justice system problems identified in a previous nationwide survey. Median Please rank them according to which one you think is your most In-Court significant local problem 1, the next most significant problem Out of Court 2, and so on through the 7 problems. $40.00 $30.00 a. Criminal Cases $40.00 $30.00 b. Civil Cases. First Rank Average Criminal Justice System Problem 3.2% 5.4 a. Lack of Staff Skills. 13. Are there maximum court-appointed counsel fees for 11.3% 3.1 b. Prison Crowding. certain types of cases? If so, what are the maximum for: 2.7% 5.3 c. Agency Management. 50.8% 2.2 d. Staff Shortages. 17.8% 2.9 e. Jail Crowding. Median 4.8% 4.3 f. Coordination Among Criminal Justice Agencies. 9.9% 3.9 g. Public’s Lackof Understanding of Misdemeanors $500.00 Criminal Justice Agencies. Felonies $1,200.00 Death Penalty $3,500.00 Caseload Juvenile $775.00 Mental Health $212.50 Overloads of cases and accompanying court delays are problems in Other: n=lO many urban areas throughout the country. Workload increases where the same types of cases are taking longer to prepare and dispose of are 14. Whatis the average hourly overhead rate for a private also problems. TheNational Institute of Justice would like to learnmore attorney in your Jurisdiction? Median = $70.00 about some of these problems.

15. In comparison to three years ago, was your current 21. Caseload Contributors. On a scale from Ito 4, please rate the operating budget? Circle one number. degree to which the following problems have contributed to in creases In caseloads in your program in the past three years. More than 30% higher 20.4% 20-30% higher 22.1% 10-19% higher 24.9% Not a Minor Moderate Major Caseload Contributors 1-9% higher 16.6% Problem Problem Problem Problem Unchanged 3.9% 1-10% Lower 5.0% 8.3% 14.6% 22.9% 54.2% a. Number of Public or Contract More than 10% Lower Defenders HasNot Kept Pace 7.2% with Caseload. 27.8% 33.0% 24.2% 14.9% b. Cases are Delayed in the Court. 16. Please indicate whether each of the following activities 5.7% 15.5: 22.7% 56.2% c. Number of Attorneys is Inadequate is a responsibility of your program, and if your program for the Caseload. is a public defender or a contract defender, indicate the 28.0% 22.8% 28.5% 20.7% d. Prosecutor’s Use of Plea Bargain number of attorneys assigned for calendar year 1989. ing is Restricted. 5.7% 12.4% 37.6% 44.3% e. Increased Sentencing for Certain Assignment Responsibility Number of Full-Time Crimes. Yes No Equivalent Attorneys 9.3% 17.6% 29.5% 43.5% f. Mandatory Sentencing. 12.0% 24.0% 40.1% 24.0% g. A Larger Percentage of Drug Misdemeanors 90.6% 9.4% 5.0 Cases are Going to Trial. Felonies 96.8% 3.2% 8.5 12.0% 30.4% 38.7% 18.8% h. Felony Cases are Increasingly Death Pen. Trials 77.5% 22.5% 2.0 Complex. Death Pen. Appeals 41.9% 58.1% 2.0 8.4% 26.2% 40.3% 25.1% i. Child Victim Cases Increase. Drug Cases 97.8% 2.2% 4.0 33.3% 17.7% 24.7% 24.2% j. Death Penalty Cases Increase. Juvenile 85.0% 15.0% 2.0 1.1% 10.5% 24.2% 64.2% k. Drug Cases Increase. Mental l-Iealth 59.2% 40.8% 1.0 18.3% 33.0% 34.0% 14.7% 1. Domestic Violence Cases Increase. Patem.hild Support 46.1% 53.9% 1.0 9.9% 36.1% 35.1% 18.8% m. Sexual Assault Cases Increase. Child Advocate 27.5% 72.5% 1.0 15.2% 21.5% 36.6% 26.7% n. Drunk Driving Cases Increase. Guardian AdLüem 20.9% 79.1% 1.0 43.1% 34.6% 16.5% 5.9% o. Joinder of Multiple Defendants. 60.7% 15.6% 11.6% 12.1% p. Death Penalty Appeals Increase. 17. What was the total number of death penalty trials 71.5% 21.0% 4.8% 2.7% q. Bifurcated Trials. your program was assigned to handle in calendar year 1989?

Median = 1.0 What was the total number of death penalty appeals? Median - 0.0

18. What was the total number of felony cases assigned to your program in calendar year 1989? Median =1,500.0

JUNE 1991 IThe Advocate 17 21. Caseload Contributors. Continued. Not a Minor Moderate Major Caseload Contributors Problem Problem Problem Problem LATE NIGHT COURT 5.2% 21.8% 42.5% 30.6% r. Police Overcharge TO BE HELD ONLY People When They Arrest Them. IN UNUSUAL AND 5.7% 12.5% 45.3% 36.5% a. Prosecutors Overcharge People When They COMPELLING Indict Them. CIRCUMSTANCES 30.5% 31.6% 20.0% 17.9% t. Lack of Pretrial Discovery. 37.0% 28.6% 13.5% 20.8% u. Restricted Pretrial Discovery. 5.3% 16.8% 245.7% 53.2% v. Lack of Resources. 13.6% 16.8% 33.0% 36.6% w. Lack of Adequate Investigative Support. Tennessee v. McMullin, 801 S.W.2d 17.2% 26.6% 27.6% 28.6% x. Lack of Adequate Sentencing Support 826 [Tenn. Crim. App., 19901. y. Other. n=33

22, Plea Bargaining. A judge sitting on a first degree murder Have excessive caseloads/workloads had an impact on plea bargaining? case held court the first day 9:00 a.m. - 11:45 p.m. and the next day 9:20 a.m. hours 75.7% Yes - 11:50 p.m. ‘Of the 38 and 50 24.3% No minutes that elapsedbetween the jurors being sworn and the end of the trial, If yes, please rate the degree to which thefollowing impacts have occurred: court was in session all except 9 hours and 35 minutes." At 827. Not Minor Moderate Major at all degree degree degree The reviewingcourt held that there was no compelling reason for the schedule. 7,2% 24.6% 45.7% 22.5% a. As defense caseloads/workloads have That the jury was sequestered, the en increased, the number of plea tire jury was composed of women and bargainings per attorney have increased. approaching 69.8% 19.4% 6.5% 4.3% b. Due to high defense cascloads/workloads, the holidays were supervisory staff pressure [December201 were held not to be "un attorneys to recommend that clients usual and compelling circumstances" accept bargains that would not as cited in Hembree v. State, 546 otherwise be recommended. S.W.2d 235 Term. Crim. App. 1976. 15.1% 41.0% 34.5% 9.4% c. High prosecution caseloadslworkloads pressure prosecutors to offer The protection of the right of the defen defendants plea bargains that dant to the assistance of competent would not otherwise have been offered. court 17.1% 27.9% 35.7% 19.3% d. High court caseloads/workloads have counsel requiresthat the schedule increasedjudge pressure not be such that counsel competency is on the defense to settle cases. eroded by unusually long in-court 22.3% 30.9% 35.3% 11.5% e. High court caseloads/workloads have hours. increased judge pressure on the prosecution to settle cases. The defendant’sright to due process of law requires that the jury deciding guilt 23. Court Delay. Please Indicate the degree to which the following contribute or innocence be shielded from fatigue to court delay In your Jurisdiction: that affects their mental and physical ability to function at normal levels. Not a Minor Moderate Major Court Delay Contributors "Judges must also bear in mind that Problem Problem Problem Problem many jurors hesitate to complain to the 35.3% 42.6% 16.3% 5.8% a. Too Many Continuances. court, and are greatly influenced by 22.0% 33.0% 26.2% 18.8% b. Failure of Prosecutor to Comply With what the will of the judge is perceived Discovery Rules or Orders. to be. Judges, in deciding the com 18.2% 27.1% 32.8% 21.9% c. Poor Case Scheduling. petency of jurors to continue working, 53.4% 28.8% 11.5% 6.3% d. Use of Open Court for Actions should rely upon more than just their Which Could Be Completed in Chambers. expressed agreement to continue. A 67.2% 22.9% 7.3% 2.6% e. Delay in Assignment of Defense CounseL careful objective judgment should be 44.6% 33.2% 16.6% 5.7% f. Poor Procedures for Notification of ‘At 831. Witnesses. made. 33.9% 26.5% 19.6% 20.1% g. Inadequacy of Computer Inlomiation System. Late night court in criminaljury cases 53.4% 22.5% 13.1% 11.0% h. Abuse of Discovery. should be scheduled only when unusual i. Other: n = 30 circumstancesrequire it, and not then if either defense counsel or any juror ob jects upon reasonably based grounds having to do with the lateness of the hour. At 801.

JUNE 1991 / The Advocate 18 Staffing 27. Staff Training. Please indicate the degree to which training for staff attorneys and/or court-appointed The changing criminal justice setting of thepast three years counsel needs improvement in each of the following has uncovered many staffing problems. The National In areas: stitute ofJustice would like to havemore information about some of these. Not A Minor Moderate Major Training Areas Need Need Need Need 24. Number of Personnel. Please indicate the degree to which you are facing shortages In each of the 25.8% 27.4% 33.3% 13.4% a. Appellate Decision following areas: Updates in Criminal Law. 40.0% 26.5% 25.4% 8.1% b. Appellate Practice and Procedure. Not a Minor Moderate Major Staff Types 28.5% 40.3% 25.3% 5.9% c. Statutory Updates. Problem Problem Problem Problem 23.9% 43.1% 26.6% 6.4% d. Interviewing Skills. 13.4% 20.9% 41.2% 24.6% e. Stress Management. 5.7% 14.6% 32.3% 47.4% a. Attorneys. 24.3% 31.7% 29.6% 14.3% f. Word Processing. 27.0% 23.2% 20.5% 29.2% b. Paralegals. 14.8% 31.7% 40.2% 13.2% g. Basic Trial Practice Skills 12.0% 23.0% 33.5% 3 1.4% c. Clerical Staff. 18.6% 44.1% 29.8% 7.4% h. Criminal Procedure. 11.0% 21.5% 28.3% 39.3% d. Investigators. 27.6% 29.0% 31.7% 48.6% 19.5% 4.3% i. Laws. 22.6% 16.7% e. Administrative Staff. 27.7% 46.7% 20.1% 5.4% j. General Management. 44.4% 14.4% 17.2% 23.9% f. Social Workers. 9.6% 24.1% 42.8% 23.5% k. Advanced Trial Practice 34.4% 17.5% 21.9% 26.2% g. Sentencing Specialists. Skills. h. Other n=21 23.7% 26.3% 29.0% 21.0% I. Computer Training for Access to Legal Resources 25. Staff Recruitment. Please indicate the degree to e.g., Westlaw and Lexis. which you have had problems with recruitment of 31.3% 13.2% 29.1% 26.4% m. Death Penalty Defense. staff attorneysand/or court-appointedcounseldue to 14.3% 25.4 % 33.9% 26.5% n. New Defender or Court- the following reasons: Appointed Attorney Training. Not a Minor Moderate Major Recniitinent Problems 52.9% 18.0% 16.9% 12.2% o. Death Penalty Appeals. Problem Problem Problem Problem p. Other: n=l5 16.8% 17.8% 21.5% 44.0% a. Low Salaries Operations and Procedures or Low Court Fees for Court-Appointed 28, Diversion and Sentencing Alternatives. Some in Counsel. digent defense administrators believe there are Inade 31.6% 32.6% 22.1% 13.7% b. Public Image of quate sentencing alternatives to permit the most effec Defenders. tive sentences for offenders. Please indicate the degree 26.7% 29.8% 27.2% 16.2% c. Shortage of Qualified Applicants. to which you feel your court system Is in need of the 13.2% 21.7% 30.2% 34.9% d. Heavy Caseloads following sentencing alternatives. and Workloads. 15.2% 19.9% 33.0% 31.9% e. Lack of Resources. NotA Minor Moderate Major Diversion and 29.8% 31.4% 21.5% 17.3% f. Lack of Adequate Need Need Need Need Sentencing Alternatives Investigative Support. 39.4% 34.6% 14.4% 11.7% g. Lack of Adequate 4.2% 8.9% 16.7% 70.3% a. Drug Diversion Programs. Sentencing Support. 4.7% 11.4% 28.0% 56.0% b. Alcohol Diversion 79.3% 13.8% 4.8% 2.1% h. Court Location. Programs. 84.9% 9.2% 4.3% 1.6% i. Civil Service 5.3% 10.1% 34.9% 49.7% c. Other Pretrial Diversion Procedures. Programs. j. Other: n=l9 13.6% 18.3% 36.1% 3 1.9% d. Intensive Probation. 15.5% 16.6% 30.1% 37.8% e. Community Service 26. To what degree have Programs. you had problems in retain. 14.6% 21.9% 27.1% 36.5% f. Work Release Jail ing attorneys due to the following reasons? Programs. 28.4% 39.5% 20.5% 11.6% g. Restitution. Not A Minor Moderate Major Recruitment 15.9% 22.2% 33.3% 28.6% h. Short-Term Commun Problem Problem Problem Problem Problems ity Incarceration. 14.7% 20.4% 24.1% 40.8% i. Conditional Dismissal 14.8% 17.5% 30.2% 37.6% a. Low Salary or Fee e.g., Suspended Proceed Increases. ings. 8.9% 15.3% 33.2% 42.6% b. Burnout" Due so 36.3% 26.8% 21.6% 15.3% j. Shock Incarceration Heavy Caseloads. e.g., Boot Camp. 46.6% 31.2% 16.9% 5.3% c. Moving to Other 61.3% 18.8% 12.4% 7.5% k. Suspension of Driver’s Public Offices. Licensesfor Drug 18.9% 34.7% 27.4% 18.9% d. Moving Into Convictions. Private Practice. 1. Other: n=2l 50.5% 31.6% 12.1% 5.8% e. Poor Image of Defense Work. 82.6% 16.3% 1.1% 0.0% f. Drog or Alcohol Abuse by Attorneys. 28.4% 27.4% 28.4% 15.8% g. Lack of Promotional Opportunities. 87.9% 8.9% 0.5% 2.6% h. Political Patronage. 27.9% 22.1% 25.8% 24.2% i. Lack of Resources. 36.8% 28.4% 22.1% 12.6% j. Lack of Investigative Support. 52.1% 34.7% 10.5% 2.6% k. Lack of Training. I. Other: n=l5

JUNE 1991 /The Advocate 19 29. Pretrial Problems. Please indicate the degree to 31. Management Information Systems. While a number of which your staff has had the following pretrial defender and/or court-appointed counsel management infor problems. mation systems have been developed, questions remain as to whether existing systems provide the informatIon needed by Not A Minor Moderate Major Pretrial Problems defenders and/or court-appointed counsel administrators. Problem Problem Problem Problem Please indicate the degree to which your office needs manage ment information system improvements In the following 19.2% 29.0% 3 1.6% 20.2% a. Pretrial Release Procedures. areas. 38.2% 27.2% 19.4% 15.2% b. Lack of Formally Accepted Procedures Not A Minor Moderate Major Information Areas for Plea Negotiations. Need Need Need Need 6.7% 17.1% 34.2% 42.0% c. Lack of Effective Early Screening 37.6% 29.1% 19.0% 14.3% a. Original Police Charges. By Prosecutor. 31.6% 33.2% 24.1% 11.2% b. Plea Negotiations. 27.6% 40.6% 19.8% 12.0% d. Motions 40.1% 303% 17.1% 12.3% c. Dates of Hearings. Procedures. 12.2% 22.2% 24.3% 41.3% d. Criminal History of Defendant. 60.6% 28.5% 7.8% 3.1% e. Assignment 28.3% 21.9% 27.8% 21.9% e. Victim/Witness Names. of Case to 40.3% 42.5% 12.9% 4.3% f. Continuances. 49.2% 30.5% 13.4% 7.0% g. Arresting Officer Names. Defender Officer Counsel Involved or Court-appointed 44.6% 34.2% 14.7% 6.5% h. Other Defense Counsel. in theCase. 47.9% 32.8% 13.0% 6.3% f. Lack of Pretrial 26.7% 25.7% 27.8% 19.8% i. Attorney Schedule Conflict 36.4% 27.8% 21.9% 13.9% j. Bail/Jail Status. Conferences. Status. 43.8% 27.1% 15.1% 14.1% g. Problems or 33.7% 38.0% 19.3% 9.1% k. Speedy Trial Delays Getting 24.6% 28.3% 21.9% 25.1% L Pretrial Diversion Evaluation. 15.6% 35.5% 28.0% 21.0% m. Information on Co-Defendants. Access to Clients and Analysis. in Custody. 23.5% 19.3% 25.1% 32.1% n. Caseload Reports 41.7% 34.9% 17.7% 5.7% h. Continuance Policy. 35.1% 35.7% 14.6% 14.6% o. Prosecutor. p. Motions. i. Other: n = 20 33.9% 38.2% 20.4% 7.5% 31.7% 28.5% 20.4% 19.4% q. Court Schedules. r. Other n,rl2 30. Courtroom Procedures. Please indicate the de gree to which you have had problems withthe follow. ing courtroom procedures.

Not A Minor Moderate Major Courtroom Procedures Problem Problem Problem Problem

40.4% 34.2% 15.5% 9.8% a. Trial Continuance Procedures. 28.5% 22.8% 24.4% 24.4% b. CalendaringSystem. 40.4% 30.1% 17.6% 11.9% c. SystemofVoirDire. 41.4% 34.6% 12.6% 11.5% d. Managementof Victim-Witness Appearances. 46.3% 27.9% 15.8% 10.0% e. Procedures for Victim Impact Statements. 28.0% 35.8% 25.4% 10.9% f. Lack of Foreign Language Interpreters. 59.9% 22.9% 12.5% 4.7% g. Courtroom Security Procedures. h. Othen n=13

BLOOM. COUNTY by Serke Breathed

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JUNE 1991 I The Advocate 20 WEST’S REVIEW

KENTUCKY COURT OF KENTUCKY SUPREME APPEALS COURT

MANSLAUGHTER - DUI, DOUBLE JEOPARDY/PFO DEATH OF INFANT BORN AGE AT PRIOR OFFENSE AFTER ACCIDENT Tyler v. Commonwealth Jones v. Commonwealth 38 K.L.S. 3 at 23 38 K.L.S. 3 at 9 March 14, 1991 March 1, 1991 Tyler was convicted of second degree While intoxicated, Jones drove his car assault and promoting contraband in the into a cardrivenby Kimberly Lynch who first degreebased on his act of stabbing was then 32 weeks pregnant. Within a a fellow inmate with a homemade knife. FIFTH AMENDMENT few hours of the accident, Lynch’s The Kentucky Supreme Court rejected No person shall be subject for the daughter was delivered by Caesarean Tyler’s argument that theconvictions of same offense to be twice put in section. The infant died thenext day due fended the prohibition against double to injuries sustained in the accident. jeopardy. The Court observed that jeopardy oflife and limb, nor shall Jones was subsequently indicted for promoting contraband in the first degree be compelled in any criminal case manslaughter. within a detention facility, requires pos to be a witness against himself... session of dangerous contraband which, Jones moved to dismiss the indictment, by definition, may fall within the con relying on louis v. Commonwealth, 652 fines of a ‘dangerous instrument,’ while S.W.2d61 Ky. 1983 for theproposition assault in the second degree con that a fetus is not a person within the templates the use of a deadly weapon or meaning of the criminal homicide dangerous instrument, KRS 508.020. statutes. In Hollis, the fetus died while Applying theBlockburger test, theCourt still in utero and was later delivered found no double jeopardy violation. stillborn. The Court of Appeals viewed this distinction as controlling. Because The Court did, however, reverse Tyler’s the infant in the case before it was born PFO conviction based on the failure of alive, Hollis did not apply. "Where, as the commonwealth to adduce any proof here, there is no question that the baby of Tyler’s age at the time he committed was alive, breathing, and maintaining a his prior offenses. See Hon v.Common totally separate existence, then the con wealth, 670 S.W.2d 851 Ky. 1984. verse is true. There can be a prosecution for the wanton killing of another "per JURISDICTION - FELONIES AND son" under KRS 507.040." MISDEMEANORS Jackson v. Commonwealth

DU! - LICENSE REVOCATION 38 K.L.S. 4 at 26 Commonwealth v. Mullins April 11, 1991 38 K.L.S. at 9 March 29, 1991 In this case separate indictments were returned: one for a felony, theother for a Mullins’ driver’s license was revoked misdemeanor. The two indictments were This regular Advocate column reviews and the orderrevoking wassigned by the never consolidated by the circuit court the published criminal law decisions of Acting Commissioner of the Transporta and thefelony indictment was dismissed. the United States Supreme Court, the tion Cabinet. Mullins contended that the The circuit court then proceeded on the Kentucky Supreme Court, and the Ken order was invalid in that it should have misdemeanor. tucky Court of Appeals, except for death been signed by the Secretary of the penalty cases, which are reviewed in Transportation Cabinet. The Court of Based on these facts, the Kentucky The Advocate Death Penalty column, Appeals disagreed, finding it "im Supreme Court held that the Court of and except for search and seizure cases material who signed the orderof suspen Appeals properly granted a writ of which are reviewed in The Advocate sion so long as that individual did so in prohibition prohibiting enforcement of Plain View column. an official capacity." the circuit court’s judgment. The Court cited the language of KRS 24A.l 102

JUNE 1991 ITheAdvocate 21 evidence

that: "[T]he district court has exclusive been given a polygraph examination." the Supreme Court held in Fulminante jurisdiction to make a final disposition of Justices Wintersheimer, Reynolds and that the admission of a coerced confes any charge for a public offense Spain dissented from this portion of the sion may be harmless error under Chap denominated as a misdemeanoror viola- opinion. man v. California, 386 U.S. 18, 87 S.Ct. don, except where the charge is joined 824, 17 L.Ed.2d 705 1967. Chief Jus with an indictment for a felony...." Turningto the voluntariness ofMorgan’s tice Rehnquist, writing for the majority, statement, the Court upheld the trial characterized the admission of a coerced OPINION EVIDENCE! court’s ruling that the statement was confession as a "classic trial error." This DISCOVERY voluntary despite the prolonged inter position departs radically from the Sargent v. Commonwealth rogation and psychiatric testimony as to Courts long-standing position, as stated 38 K.L.S. 4 at 32 Morgan’s diminished capacity at the by Justices White, Marshall, Blackmun April 11, 1991 time. "While the duration of appellant’s and Stevens in dissent, of treating a interrogation may have exceeded that coerced confession as "fundamentally The appellants in this case were con which some would consider reasonable, different from other types of erroneously victed of trafficking in marijuana after evidence was presented from which the admitted approximately fifteen pounds of trial court could have believed, and clear marijuana was found in the trunk of their ly did believe, that appellant retained the Applying harmless error analysis, the car. At trial, two police officers were capacity to make rational decisions arid dissenters gained thevote ofJustice Ken allowed to testify as experts to their was not coerced into making the in nedy to hold that the state had not met its opinions that the marijuana was for sale criminating statements." burden of showing that the admission of and not for personal use. The Kentucky Fulminante’s confession was harmless. Supreme Court held that this testimony SENTENCING The majority opinion on this issue em was indeed admissible as expert opinion. Smith v. Commonwealth phasized that a confession "is like no "Both detectives testified about the 38 K.L.S. 4 at 33 other evidence" in its power to sway the marijuana trade which is certainly spe April 11, 1991 jury and that coercion renders a confes cialized in character and outside the sion inherently unreliable. The majority scope of common knowledge and ex Smith was convicted of rape and urged "extreme caution" in determining perience of most jurors. The opinion of sodomy. The jusy fixed his penalty at two the admission of a coerced confession to the police aided the jury in understanding lifetenns and recommended that they be be harmless. Chief Justice Rehnquist, the evidence and resolving the issues." served consecutively. Since, under KRS and Justices O’Connor, Scalia, and Chief Justice Stephens and Justices 532.11O1c, life sentences may not be Souter dissented and would have held Combs and Leibson dissented from this served consecutively, and since parole admission of Fulminante’s confession to portion of the opinion. eligibility on a life sentence is 12 years, be harmless. the result of the jury’s sentence was an The Court also held that trial defense indeterminate sentenceof 12 years to life. BATSON- STANDING counsel’s announcement of "ready" The trial court, however, sentenced Powers v. Ohio waived the commonwealth’s failure to Smith to two consecutive 25 year terms 49 CrL 2003 provide the defensewith theresults of lab which, because Smith was a violent of April 1, 1991 tests of the marijuana as required by the fender who would be eligible for parole trial court’s discovery order. only after serving half his sentence, in this case the Court held that racial amounted to a sentence of 25 to 50 years. identity between a defendant and mem POLYGRAPH/CONFESSION bers of his petitjury venire is not required Morgan v. Commonwealth Smith argued on appeal that the trial for the defendant to assert that the 38 K.L.S. 4 at 28 court acted outside its authority in that prosecution’s exercise of its peremptory April 11, 1991 thesentence it imposed was harsher than challenges was racially motivated in that fixed by the jury. The common violation of the Equal Protection Clause. The principal evidence at Morgan’s trial wealth argued that the trial judge had in In Batson v. Kentucky, 476 U.S. 79, 106 for the murder of his wife consisted of fact reduced Smith’s sentence. KRS S.Ct. 1712, 90 L.Ed.2d 69 1986, the Morgan’s incriminating admission. The 532.0701 permits a trial judge to Court held that the defendant must be a admission was made at 3:15 a.m. at the modify ajury sentence if thejudge deter member of the cognizable racial group conclusion of eight hours of interroga mines that sentence tobe unduly severe. whose members the prosecution has tion, including a polygraph examination. The Kentucky Supreme Court rejected struck. Powers overrules this portion of Morgan sought, without mentioning the the commonwealth’s argument and held Batson. The Court in Powers noted that polygraph, to suggest to thejury that the that "considering the anomalies of cur the equal protection rights at stake were conditions of his interrogation reduced rent parole disability legislation" the trial those of the excluded jurors. The Court the credibility of his admission. As part court had indeed unlawfully imposed a reasoned that third-party standing should of this strategy, Morgan asked one of the harsher penalty. Justices Wintersheimer be granted a defendant to assert those interrogating officers who had been pre and Spain, and Chief Justice Stephens rights since racial discrimination may viously described as an officerwith ‘spe dissented. cast in doubt thefairness of thetrial, since cial interrogation skills,’ whether there the defendant can be counted on to be a was a two-way mirror in the room in zealous defender of those rights, and which Morgan was questioned. The of UNITED STATES since the jurors’ rights would otherwise ficer then fully described the room, in SUPREME COURT likely go unasserted. Chief Justice cluding the fact that the polygraph Rehnquist and Justice Scalia dissented. machine was present. The Kentucky Supreme Court held this was reversible INVOLUNTARY CONFESSiON - HABEAS CORPUS - error: "In context, we believe Ethe HARMLESS ERROR SUCCESSIVE PETITION officer’s] telling the jury that the inter Arizona v. Fulminante McCleskey v. Zant rogation took place in a room with a 48 CrL 2105 49 CrL 2031 polygraph instrument amounted to a vir March 26, 1991 April 16, 1991 tual banner headline that appellant had In a profound break with past precedent,

JUNE 1991 / The Advocate 22 This case, the latest in the Court’s con original petition. Moreover, failure to Justices Marshall, Blackmun, and servative restructuring of habeas corpus, previously raise the claim is excusable Stevens dissented. limits thefederalcourts’ consideration of only if the petitioner can meet the stand successive habeas petitions. The major ard applied to procedural defaults, i.e. the ity held that a state prisoner has com petitioner must show cause and prejudice mitted abuse of the writ and is not entitled with respect to the omitted claim. to relief if he failed to raise his claim in LINDA WEST his original petition due to "inexcusable Assistant Public Advocate neglect." It is not necessary that he Post-Conviction Branch deliberately abandoned the claim in his Frankfort

EMPLOYMENT OPPORTUNITIES WITH DPA

RECRUITMENT

Criminal defense work is entering a new age. There is a growing realization that competent representation demands a team approach. A defense lawyer does not possess the expertise needed to comprehend, communicate and defend his or her client’s position. As our society tends toward specialization, the competent defense lawyer relies on the skills of a psychologist, psychiatrist, social worker, sentencing specialist, statistician and others to aid in the defense of an accused citizen. These same "people resources" have long been available to and utilized by theprosecution. In an attempt to assist its attorneys in meeting their opponents on fairer ground, the Department of Public Advocacy is seeking to enlarge its vision of the defense team. Presently, there are vacant positions within the agency for alternative sentencing specialists and paralegals. We hope to have a wider variety of support positions available in the future.

Recognizing this new age, the Department of Public Advocacy has seen fit to place more emphasis on recruiting. Through the efforts of the Recruitment Coordinator and Personnel Administrator, the agency can strive to recruit and retain the best, brightest, most committed attorneys and support staff.

As reflected in the last Advocate, while maintaining my other responsibilities, I assumed the duties of Recruitment Coordinator this last March. Roy Collins continues to perform as Personnel Administrator. With the help of Department Supervisors and Directing Attorneys, Mr. Collins and I hope to further this agency’sstatutory mission of competent, legal representation for those citizens, criminally accused, who qualify for our agency’s services under Chapter 31.

To that end, we will use this column to advise you of opportunities for employment with the Department of Public Advocacy.

REBECCA BALLARD DiLORETO Assistant Public Advocate Frankfort

OPPORTUNITIES WITH DPA

The Department is seeking qualified applicants for the positions listed below:

Our Paducah field office has a vacancy for an Alternative Sentencing Specialist. The job description Alternative Sentencing plans are Specialist involves the preparation and submission of alternative sentencing plans for our clients. The presented for approval to the sentencing judge in Circuit Court felony cases.

offices are seeking qualified Assistant Public Advocate Our Morehead, Northpoint, Hazard, Hopkinsville, and Pikeville field lawyers to provide zealous representation for our clients.

inmates, Paralegal Our Eddyville and LaGrange offices are seeking qualified paralegals to do research, interview and perform as intricate members of our post-conviction defense team.

If you are interested in one of these positions, please contact Roy Collins or Rebecca Ballard DiLoreto at 502 564-8006 for further information.

JUNE 1991 / The Advocate 23 THE_DEATH_PENALTY The Bill ofRights: Slip-Sliding Away in the Rush to Kill

FIRST, THE GOOD NEWS: Monahanrestrained himself from saying anything to thePost aboutWillie Mathis The Supreme Court has denied certiorari having a bad day, but I’ll say it for him. in Paul Kordenbrock’s case, thereby Thecase now goes back to Boone Circuit letting stand the Sixth Circuit’s ruling in Court for re-trial. Again, congratulations Kordenbrock v. Scroggy, 919 F.2d 1091 and good luck to Paul and his attorneys, 1990. The Court’s decision was espe Burr Travis, Tim Riddell and Ed cially welcome in view of an amicus brief Monahan. filed by the Attorneys General of 17 states in support of granting cert. and ARIZONA V. FULMINANTE: NO reinstating Paul’s death sentence. The HARM, NO FOUL States were arguing for a ruling 1 that Miranda violations should be subjected In Professor Joseph 0. Cook’s treatise, to the harmless error standard for non- Constitutional Rights oftheAccused, is EIGHTAMENDMENT, constitutional violations, and 2 closing found the following statement: "The the federal habeas doors on Miranda is Supreme Court has never found the ad UNITEDSTATES sues which had already been litigated in mission into evidence of an illegally ob CONSTITUTiON state court. In view of the Court’s tained confession harmless error. There Excessive bail shall not be re decisions in Fulminante andMcCleskey, is some authority suggesting that such an quired, nor excessive fines im which will be discussed in this column, error could neverbe harmless." Id. Sec there was plenty of cause for concern tion 5:39. posed, nor cruel and unusual here, and the denial of cert. comes as a punishment inflicted. great relief. When Fulminante was an Not so fast, Professor. In an opinion so nounced in March, Boone Common convoluted that the essential holding is SECTION 17, wealth Attorney Willie Mathis, who found in the dissenting opinion, the Court KENTUCKY CONSTITUTION prosecuted Kordenbrock, told the Ken has with one stroke reversed a century of tuclcy Post, "1 looked at [the ruling and precedent and declared that even a Excessive bail shall not be re thought that Paul Kordenbrock is going coerced confession must be subjected to quired, nor excessive fines im to have a bad day." 2 When the denial of "harmless 4error" analysis under the posed, nor cruel and unusual cer:. was announced on April 15, Ed Chapman standard. Arizona v. Ful punishmentinflicted. Kentucky Death Facts As of May 1, 1991 Number of people executed since statehood 470 Number of people executed in the electric chair 162 Number of people who applied for the position of executioner in 1984 150 Number of peoplenow on death row 28 Number of Viemam Veterans on death row 1 Number of women on death row 1 Number on death row who were under age 21 at time of offense 5 Number of inmates on death row who have committed suicide 1 Number on death row whose trial lawyers have been disbarred or had their license suspended 5 Number who can afford private lawyer on appeal 0 Percentage of KY homicide victims who were black, 1985-90 18% This regular Advocate column reviews Number sentenced to death for killing a black person 0 death decisions of the United States Percentage of death row inmates who are black 17% Supreme Court, theKentucky Supreme Percentage of Kentucky population that is black 7% Court, the Kentucky Court of Appeals Number of black prisoners who were sentenced by all white juries 2 and selected death penalty cases from Number of persons sentenced to death in Kentucky and other jurisdictions. later proved innocent I

JUNE 1991 / The Advocate 24 minante, 111 S.Ct. 1246 3-26-91, is a death-penalty case in which the accused Opinions allegedly confessed guilt to a fellow in The KentuckY Posi. Wednesday. April 24. 1991 mate, a paid FBI informant, who demanded the information in return for "protection" for Fulminante from other The death penalty inmates. The United States Supreme when appeals are interminable and not to review a there is an understandable resis Although a majority of the Court areed Court’s decision of Appeals’ ruling over tance to cart ying it out. More and with the Arizona Supreme Court that U. S. Court turning Paul Kordenbrock’s death more the death penalty is a rhetor the confession was impermissibly questions coerced, sentence raises troubling ical ticket to get politicians elected the Reagan-Bush bloc of Jus the death penalty. of secti tices went on to declare for the first time about and to give us a false sense to capital that even a coerced confession may be The appeals court gave Mr. Kor rity that it is a deterrent harmless beyond a reasonable doubt in a denbrock a new trial because p0- offenses. Mostly, it deters justice given case, and that the issue must there lice violated his constitutional by tying up valuable and limited fore be subjected to aChapman analysis. rights when ob resources in inter Ironically, Justices Kennedy and Souter taining a confes ininahie appeals defected sion used as in which techni then from the bloc to form a his tri majority holding that the error in evidence In calities easily Fulminante’s case was not harmless. al for killing a overturn verdicts. store clerk during Obviously, the ju The Arizona Court had concluded that it killing was a 1980 diciary does not harmless error, before deciding in a spree. supplemental opinion that harmless take lightly the error reac analysis did not apply. 778 P.2d at 626- Our first burden of con tion is that it’s a demning anyone 27. So, while Oreste Fulminante will miscarriage of jus receive a new trial, the Court has un to death. t.ice to give an ad necessarily removedone of the basic pu mitted murderer Consider the lars of protection for the individual another chance on hours of legal against the State’s abusive use of its a technicality. What about the vic work and taxpayer power. tim who didn’t get another chance? dollars required to defend Mr. Kor And how about the victim’s faint denbrock and others like him One defense attorney told the Kentucky ly? Haven’t they been victimized against the death peiilty. The pro Post that "the days of the back room, the repeatedly as appeal after appeal gram or court-appointed attorneys rubber hose and the bright lights have wound its way through the legal is under funded. Is it right to di beenover for some time." But havethey? system during the last 10 years? vert what little resources there are Even as the Court announced its decision But then there is, of course, the for public defenders in capital in Fulminante, America was watching matter of Mr. Kordenbrock’s cases when the ourts are filled the videotape of the Los Angeles police rights and the constitutional rights with people who need their ser brutalizing Rodney King, whose ap of every American citizen. There is vices? The question has another parent offenses were speeding and being the issue of the police continuing serious dimension as well. Often black, had confessed If King to speeding their Interview after he said he public defenders have little expert. in order to stop the pounding, should that didn’t want to talk anymore. His ence in trying capital cases, leaving have been "harmless error" if it was cor court-appointed attorney Ed Mon. the door open for appeals on the roborated by the radar gun? ahan also questions whether the basis of an Inadequate defense. death sentence Is the appropriate In Arkansas, Barry Fairchild remains on punishment for a man who claims The need for reform of our pub- death row, on the strength of a confession he was so high on drugs and alco lie defender system is imperative which he alleges was beaten out of him hol at the time of the shooting that to ensure every Individual the fair by police in 1983. At a federal court he didn’t knOw what he was doing. trial provisions guaranteed of the hearing this year, more than a dozen Arid, there is - as always - the U. S. Constitution - regardless of black men from Little Rock testified that nagging doubt about whether an individual’s ability to pay. they had beaten court-appointed defense Is ade been and threatened with We must also reckon with the revolvers by police who sought to extract quate in matters grave enough for death penalty, which clearly under a confession to the 1983 murder of a the state to take a life. nevertheless, Mr. Korderibrock mines our justice system. It is time white woman. The police were success that Is ful with Fairchild, whose confessed to the crime, and Mr. Kentucky has a punishment I.Q. has been both appropriate for the hideous measured at 62. Monahan does not dispute that his client killed. crime and one the convict will 6 Indeed, there are many aspects surely serve. At least 29 states al Then there’s Cooper v. Scroggy, in ready have passed legislation for a which the Sixth Circuit reversed two of this case that give rise to anger and indignation. But most of our petialty of life in prison without men’s convictions because the Owens parole. The Commonwealth would boro Police had beaten confessions out of outzage Is focused on a system that continues to hold out the death be better served with such a penal’ them. Of course, most instances of should never coerced confessions involve techniques penalty as the ultimate punish. ty. Mr. Kordenbrock mont when, in fact, the penalty is breathe free again; a guarantee of much more subtle than the "rubber hose"; rarely carried out. life Imprisonment would he far Fulminante provides a prime example. penalty saw At some point, we must ask If a better justice than a death Americans who the tapes of ourcap dismissed on a technicality. tured fliers in Iraq, denouncing their own death sentence represents justice "aggression against the peace-loving Reprinted by permission Iraqi people," have accepted that strong

JUNE 1991 / The Advocate 25 men can be coerced into admitting that McCleskey with full force, charging him the previously prevailing "good-faith’ ‘ which they do not believe they have with "abuse of the writ," finding him standard, with no clue that the standard done. But instead of maintainingthe con guilty, and stripping him of his Massiah was about to be changed. The Court has stitutional bulwark against such abusive claim. McCleskey’s offense? He had constructed elaborate artifices to protect conduct by the state, the Reagan-Bush made a general assertion of a Massiah the State from "suffering" retroactive ef Court has given the authorities an incen claim in hisfirst state habeas petition, but fects of adverse Court rilings, starting tive to beat, threaten, bribe, manipulate had then failed to include it in his first with Teague v. Lane. But no such or otherwise coerce the criminal defen federal habeas. Why? Because his coun consideration applies to Warren Mc dant - as long as they’re sure he’s guilty. sel, having obtained no evidence to sus Cleskey; theCourt simply declares a new This is hardly a fitting birthday observa tain the claim at the State habeas level, rule and applies it to him retroactively. tion for the Bill of Rights. concluded that its inclusion in the federal Justice Marshall, writing for the usual habeas would be futile. Why was there three dissenters, put it simply: McCLESKEY V. ZANT: THE no evidence at the state habeas hearing? COURT PLAYS "CALVINBALL" Because the State withheld it. Whose The Court’s utter indifference to the fault is that? McCleskey’s, said the injustice of applying its new, strict- Readers of the comic strip "Calvin and Court, and his secondfederal habeas peti liability standard to this habeas Hobbes" are familiar with CalvinBall, tion became an "abuse of the writ." petitioner stands in marked contrast to the game in which Calvin makes up the this Court’s eagerness to protect States rules as he goes along. Calvin, of course, But in order to reach this conclusion, the from the unfair surprise of "new rules" always wins. Apparently the Supreme Court had to take some extraordinary that enforce the constitutional rights of Court recognizes a good idea when it sees steps. First was the creation of a new, citizens charged with crimina’ one, and has resorted to playing Calvin- strict-liability standard governing abuse wrongdoing. See utler v. McKellar, Ball with WarrenMcCleskey’s life. claims. From now on, whenever the Saffle v. Parks, Teague v. Lane1 government has shown that a claim is 49 CrL at 2046. You remember Warren McCleskey. He appearing for the first time in a successor is the Georgia death-row inmate who ar federal habeas petition, the condemned But in fact, the dissenters were being gued in 1987 that the overwhelming "must show cause for failing to raise it unfair to themajority, which wascertain statistical evidence showing Georgia’s and prejudice therefrom, as those con ly concerned about injustice. It says so death-penalty scheme to be racist in its cepts havebeen defmed in ourprocedural right here: "The history of the proceed operation amounted to both an Equal default decisions," 49 CrL at 2038. In ings in this case, and the burden upon the ProtectionandEighth Amendment viola other words, the claim will be excluded State in defending against allegations tion. The Supreme Court disagreed, ‘ not only if it had beendeliberately aban made for thefirs: time in federal court putting its stamp of approval on a capital doned, but also if the failure to pursue it some 9 years after the trial, reveal the system every bit as racist and arbitrary as earlier was caused by "inexcusable necessity for the abuse of the writ that condemned 5 years earlier in Fur neglect." But in assessing whether doctrine." 49 CrL at 2040 emphasis man v. Georgia. CalvinBall, round 1. neglect was "inexcusable," the Court added. Imagine the State’s burden if looks only to the petitioner’s conduct, they’dwithheld the evidence for 18 or 27 McCleskey then, in the course of a not to theState’s. Here, the Court decided years. second state habeas proceeding, obtained that since McCleskey had raised a a 21-page statement given to the police generally worded Massiah claim in his One more round ofCalvinBall needed to in 1978, shortly before his trial, and with first State habeas, he obviously knew or be played. Ordinarily, when theSupreme held by the state for 9 years. The state should have known that the State was Court announces a new rule which had ment was given by an inmate informant, covering something up; in essence, it’s not been applied by any of the lower Evans, who testified at trial as to in his own fault for letting them get away courts hearing a case, the case would be criminating statements made by Mc with it. Inexcusable neglect. remanded for fact-finding in light of the Cleskey. Evans’ statement provided new rule. Such fact-finding in this case, evidence, for the first time, that Evans What made the creation of this test all the of course, could well have resulted in a was not just a fortuitous bystander but more extraordinary is that the Court did finding that the State deliberately and had been acting in direct concert with the not put theparties on notice, and theState unjustifiably withheld Evans’ statement police, and had deliberately elicited did not request adoption, of this new rule.. for nine years, to McCleskey ‘s prejudice. McCleskey’s admissions in violation o In fact, the rule is remarkably similar to A finding like that could sidetrack the his Sixth Amendment right to counsel. part of the habeas reform package that execution express bearingdown on War The statement then led McCleskey’s was considered and not adopted by Con ren McCleskey. Since the Court’s counsel to a former jailer, Worthy, who gress lastyear. This from a bloc of judges majority had already made up its mind testified that Evans had been moved to who were all touted by their appointers that he should die, why waste any more McCleskey’s cell at the request of some as "strict constructionists, not legislative time? So the Court, without benefit of one in authority. These facts had been activists." It seems that when Rehnquist any opportunity for the parties to present steadfastly withheld by theState of Geor couldn’t get his "speedy execution" evidence or brief the case under its new gia all through the proceedings in package through Congress, he chose to rule, did its own fact-finding and con McCleskey’s case. enact it by judicial fiat instead. The next structed this Orwellian artifice: time Bush spouts his nonsense about But when this issue reachedthe Supreme judicial appointees who won’t "legislate The Massiah violation, if it be one, Court, the rules suddenly changed, and from the bench," some member of the resulted in the admission at trial of McCleskey was punished for the State’s narcoleptic Washington press corps truthful inculpatory evidence which did 10 transgressions. McCleskey v. Zant may would do well to ask about McCleskey. not affect the reliability of the guilt go down in history as the case where the determination. The very statement Mc Supreme Court stopped even trying to But even if the Court is free to play Cleskeynowseeksto embraceconfirms make it look good. With nary a word of CalvinBall with the rules in federal his guilt. 49 CrL at 2040 emphasis criticism for the State’s actions which habeas cases, isn’t there a question of added. had caused the District Court to grant fairness to WarrenMcCleskey? Afterall, habeas relief, the Court came down on he filed and presented his habeas under

JUNE 1991 / The Advocate 26 As to the last statement, any former trial 4 More than ever, capital cases must be Souter, protege of Sununu. Neither one practitioner should know better. The won or resolved at the trial level, dissented from the Payne order, which general point seems to be, "Look - we carried the usual 6-3 majority; nor did know he did it, so let’s get on with it." 5 All trial practitioners should rely on Justice White, who may be less solicitous Since McCleskey had no apparent oppor the State Constitution at all times. of stare decisis when he’s not the swing tunity to brief the question of whether vote. The case was put on an expedited Evans’ testimony of his jailhouse 6 All post-conviction practitioners schedule and was argued on April 24. A "boasts," had it been properly excluded should include all conceivable claims at decision will likely be handed down at from the jury, might have affected the every step of litigation, whether there is about the time this issue of theAdvocate sentence, the Court didn’t need to deal evidence to support them or not. This, of is printed. with it. Contrast this attitude with that course, drives courts crazy, and with stated by Judge Merritt for the majority good reason; but McCleskey seems to And what will be the practical effect of in Kordenbrock v. Scroggy: demand it. overruling Booth? Some commentators have projected that penalty phase hear It is not the Court’s duty to determine 7 Police and prosecutors now have. an ings will become trials of the victim’s whether Kordenbrock deserves or does incentive to commit continuing Brady character, which is distressing enough. not deserve the death sentence for his violations, at least in death cases; the But the long-term effect will probably be crime. TheCourt’s duty is toinsistupon McCleskey Court has rewarded their ef to further polarize therace and class dis the observance of constitutional norms forts. the death penalty: 16 tinctions inherent in of procedure. more than ever, execution will be the fate 8 Warren McCleskey, who proved the of those who kill white, middle-class What lessons can we learn from this State of Georgia to have been overtly people with articulate, sympathetic sur case? I believe each of the following are racist in its capital proceedings and vivors who contrast with theaccused and true: blatantly dishonest in its prosecution of his family. As for the doctrine of stare him, will soon be executed. decisis, it seems that must yield when 1 The 200th anniversary of the Bill of necessary to reverse the liberal depreda Rights iay be the last. If Alabama v. WE WON’T HAVE STARE DECISIS tions of Justice Powell. White drove a wooden stake through TO KICK AROUND ANYMORE. the heart of the Fourth Amendment, then JUSTICE SCALIA BROOKS Fulminante does the same for the Fifth. Less than four years ago, in Booth V. NO NONSENSE Now the concept of "fundamental fair Maryland, 19 the Supreme Court ness inherent in due process of law" may prohibited the useof victim impact state At the beginning of the current term, the be interred with McCleskey. ments in capital cases. The 5-4 decision ChiefJustice reassigned Justice Scalia’s was written by Justice Powell. Two ars supervisory responsibilities from the 2 In an otherwise insightful editorial later, in South Carolina v. Gathers, the Sixth Circuit to the Fifth, which covers reprinted on page 25, the Kentucky Post Court relied on Booth to prohibit the the death-belt states of Mississippi, observed: "Obviously, thejudiciarydoes prosecution’s useof thevictim’s posses Louiisiana and Texas. Scalia, who replac not take lightly the burden of condemn sions a religious tract and a voter ed Justice Whitein the Fifth, wasted little ing anyone to death." Obviously, the Post registration card to argue for a death time in letting it be known ho’s in did not have McCleskey in mind. The sentence based on the victim’s positive charge. In Madden v. Texas, Scalia SupremeCourt hasall but abandoned its character. The 5-4 decision was written denied an application for extension of intended purpose of protecting the liber by Justice Brennan; Justice White, who time in which to file a petition for writ of ties of our citizenry, in favor ofpursuing had dissented in Booth, concurred in certiorari, and only grudgingly granted the administration’s legislative agenda. Gathers strictly due to the stare decisis threeothers, warning, ‘1 shall not [do so The Post is right on target, of course, in value of Booth 21 again." stating that the death penalty "clearly undermines our justice system." It is the Booth had a profound effect on capital Such applications, particularly in capital lust for blood retribution that leads the cases in Kentucky. Prior to Booth, an cases, are granted as a matter of routine. Court to trample theBill ofRights. argument against the admission of They generally occur when counsel has "victim’s character" evidence was found not yet been located to prepare the peti 3 The press, not to mention the public, "totally offensive to the court," Mc- tion, or where counsel has been located is blissfully unc9icerned about this Queen v. Commonwealth. 2 But after but is unfamiliar with the case file. In the erosion of rights. Far more attention Booth, no fewer than three catal cases other death-belt circuit, the 11th, Patsy has been devoted to such important is - Sanborn v. Commnwealth , Morris Morris of the Georgia Resource venter 2 sues as Gen. Schwarzkopf’s political af v. Convnonwalth , and Dean v. Com told The National Law Journal that filiation, Nancy Reagan’s sex life, monwealth - were reversed at least in requests for extensions in capital cases Donald Trump’s sex life, Gen. Powell’s partbecause of Booth evidence. 26 had been grantedsince 1976. But Scalia political affiliation, Ted Kennedy’s sex took the opportunity to "set forth my life, and Men’ Griffin’s sex life. The gun But now, the Supreme Court shows all views on application of the ‘good cause’ lobby wailsloud andlong about infringe thesigns of beingreadyto overrule Booth standard of Rule 13.2 [and] it is possible ment of the Second Amendment, but and Gathers. On February 19, 1991, the that those views are more restrictive of they’remissing an important point: as his Court ised an order on Payne v. Ten extensions than what theFfth Circuit bar price for enacting what’s leftof the Brady nessee, directing the parties to brief hasbeen accustomed to."3 Well, possib Bill, Bush is also insisting on expansion and argue whether Booth and Gathers ly. of the federal death penalty, legislative should be overruled, aquestion presented repeal of the exclusionary rule in federal by neither party. What changed? The hi Madden’s case, the extension was re cases, andcontinued dismemberment of cynical among us might observe that Jus quested because Madden’s appellate federal habeas corpus procedures. The tice Powell, author of Booth, and Justice counsel had never prepared a cert. peti gun lobby should force the rest of us to Brennan, authorofGathers, have left the tion in a capital case, and wanted the evaluate whether this trade-off is Court and been replaced by Justice Ken assistance of theTexas Resource Center. worthwhile. nedy, author of McCleskey, and Justice David DeBlanc’s appellate counsel had

JUNE 1991 / The Advocate 27 been elected to Congress, and the Perhaps Anatole France foretold the On retrial, venue was changed to Jeffer Resource Center had been unable to lo coming of Scalia when he wrote, "The son County. After two weeks of trial in cate new counsel. Alvin Goodwin’s ap law, in its majestic equality, forbids the which Sanborn’s identity as the killer pellate counsel had a conflict forcing him rich as well as the poor to sleep under was conceded, the jury was instructed to to withdraw, and again the Resource bridges,o beg in thestreets, arid to steal begin its penalty phase deliberations at Center could not locate new counsel. bread." about 11:00 p.m. on Friday night. The And in Karl Hammond’s case, a death verdict wasreturned in less than an Resource Center lawyer agreed to Then again, maybe not. This morning’s hour. It was the first death verdict im prepare the cert. petition himself after a paper brings word of a rule change posedby a Jefferson County jury innear futile search for counsel, but requested adopted by the Court per the usual 6-3 ly five years. more time because of the death of his vote by which it reserves the right to father. Scalia did not fmd good cause in revoke the in forma pauperis status of As this is written, final sentence and a any of these circumstances. Texas, it litigants who, it believes, are abusing the new trial motion are pending. Among the should be noted, does not provide fund privilege. As Justice Marshall noted, issues to be litigated are the Court’s con ing for lawyers to file cert. petitions for "Strikingly absent...is any similarprovis ductofvoirdire the jury was selectedin indigent clients. ion permitting dismissal of ‘frivolous less than two days, with the judge con malicious’ filings by paying litigants." ducting the entire voir dire, the court’s The Texas Resource Center, of course, refusal to admit expert testimony in the was set up by Congress in large part to NEW DEATH VERDICTS IN guilt phase as to Sanborn’s extreme emo recruit volunteer attorneys to represent KENTUCKY tional disturbance, and the admission of condemned inmates, and to provide the testimony by a minister as to his conver necessary specialized assistance tothose BOWUNG sations with Sanborn prior to the first attorneys. That went right by Scalia, who trial, when he had met with him at called "the desire of Madden’s appellate After going nearly a full year without a defense counsel’s request in preparation counsel for the assistance of the Texas death verdict, three death verdicts have for a potential penalty phase. Resource Center entirely unremarkable; beenreturned in Kentucky in thefirstpart all petitioners can honestly claim that of 1991. Thomas Clyde Bowling was THINGS ARE TOUGH ALL OVER they would benefit frop additional ad sentenced to death in January, convicted vice and consultation." And evenwhen of shooting a husband and wife in Lexi Even the New Jersey Supreme Court, new counsel is recruited for the awesome ngton. Even after the trial, many issues which had reversed twenty-five consecu task of pursuing a Supreme Court capital including motive remain unresolved. tive death verdicts, has çially affirmed appeal, it can take weeks just to transfer one, State v. Marshall. Readers may the case record from the appellate lawyer HUNTER recognize the case as having been the to the newly recruited firm, which is fre subject of a best-sellerby Joe McGinniss quently not even in the saute state. Ob In March a Clark County jury returned a and a TV movie starring Robert Urith In viously, restricting the time allowed for death verdict against 18-year-old James a 110-page opinion, the Court identified filing a cert. petition will only ser’Qe to Hunter, accused and convicted of no less than eleven constitutional errors, deter many firms from volunteering. arson/murder in the death of his wife. including Brady violations and prosecu Hunter was at home at the time the fire tonal misconduct in drawing negative Steven Bright of the Southern Prisoners broke out, and received burns which inferences from Marshall’s request for Defense CommIttee, in a remarkably hospitalized him for about a month. counsel during an interrogation, butcon restrained understatement, told the Na cluded that all errors were harmless. In tional Law Journal, "you just have to Although there were. numerous indica dissent, Justice Handler stated, wonder that Justice Scalia could be so tions of mental and emotional disorders, unfamiliar with what is going on." We no evaluation was presented at trial, and Finally,the bell tolls.This Courtfor the don’t haveto wonder, of course, because the Court refused to allow a one or two- first time affirms both the murder con he is quite familiar with what’s going on. day delay to permit completion of an viction and death sentence of a defen In Madden’s case, theexecution date had evaluation prior to penalty phase. Mr. dant prosecuted forcapital murder. The been set for two days after the end of the Hunter’s attorneys, who had no prior Court’s decision and judgment serve regular 90-day filing period. Scalia capital experience, did not seek assis only to confirm the intractable constitu declared that extending the deadline for tance from the DPA’s Capital Trial Unit tional infirmities of our capital-murder filing a cert. petition "to a point after an or any other experienced capital prac jurisprudence, its unfathomable in established executiondate is either futile titioners. Mr. Hunter has been finally coherence d unmanageable con or will disrupt the Staie’s orderly ad sentenced, and his appeal is being tradictions.3 ministration ofjustice." 2Apparently the prepared. "orderly administration ofjustice" would Amen. countenance a man’s execution without SANBORN a petition for cert. being filed on his STEVE MIRKIN behalf, because a willing lawyer wasnot And on April 5, a Jefferson County jury Assistant Public Advocate immediately available. returned a death verdict against Par Capital Trial Unit ramore Lee Sanbom, convicted of rape, Frankfort But don’t let it be said that Scalia is not sodomy and murder in the 1983 death of a fair man. Ten days after his order in a Heniy County woman. Sanborn had Scroggy v. Kordenbrock, 49 CrL 3017 Madden, he denied arequest fora 30-day previously beenconvicted andsentenced 4-15-9 1. extension sought by the State of Missis to death, but the conviction was reversi sippi. The State cited budget cuts, by the Kentucky Supreme Court, 2Post, 3-30-9 1, p. 9K. which had "resulted in a reduction in primarily becauseof blatant andrepeated appellate staff,"Id. Scalianotedthat "like prosecutorial misconduct which the 1986, Lawyers CooperativePublishing any other litigant,the State ofMississippi Court likened to a "lynching." Company. must choose between hiring more attor neys and taking fewer appeals." Id.

JUNE 1991/The Advocate 28 4Chapman v. Ca4fornia, 386 U.S. 18,87 32111 S.Ct. at 905. SQ. 824, 17 L.Ed.2d 705 1967. OOPS! 33Mississippi v. Turner, 111 S.Ct. 1032 5State v. Fulminante, 778 P.2d 602,609- March 2, 1991. An Ohio prisoner serving consecutive 10 1988. sentences of up to 40 years in prison LeLys Rouge, Ch. 71894. Thanks was denied a stay of execution by the 6845 F.2d 1385 6th Cir. 1988. to Vince Aprile who knew who said it. U.S. Supreme Court in March, despite the fact that the prisoner wasnot under McCleskey v. Kemp, 481 U.S. 279, 107 The Courier-Journal, 5-1-91. asentence of death! S.Ct. 1756, 95 L.Ed.2d 262 1987. 36 Sanborn v. Commonwealth, 754 Martin Crago had appealed his sen 4O8 U.S. 238,92 S.Ct. 2726,33 L.Ed.2d S.W.2d 534 1988. tence to the Court, asking that the 346 1972; See also The Advocate, Court review claims that Crago’s trial error August 1990, pp. 22-24. 37 Id. at 538. and sentence were unfair. In an which Court officials couldn’texplain, case as if it 9Massiah v. U.S., 377 U.S. 201,84 S.Ct. 38586 A.2d 85 1991. the Justices reviewed the 1199, 12 L.Ed.2d 2461964. were acapital case, and ordered that an 586 A.2d at 199. execution proceed. 1049CrL 2031 4-16-91. From Life Lines, a publication of the Sanders v. United Stales, 373 U.S. 1, National Chapter to Abolish theDeath- 83 S.Ct. 1068, 10 L.Ed.2d 148 1983. Penalty, April/May/June 1991 issue.

12 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 1989. Victim’s Character no issue in penalty ‘3494US llOS.Ct. 12121990. ‘4494U.S._, 110 S.Ct. 12571990. In consideration of the penalty in a capital case, t5Supran. 12. should it matter whether the victim was a reprobate or 16 a model citizen? Attorney General Dick Thornburgh 919 F.2d 1091, 1094 6th Cir. 1990, says yes. We disagree. cert. denied, 49 CrL 3017 4-15-91. The attorney general in a Tennessee case urged 110 S.Ct. 24121990. the U.S. Supreme Court to allow juries to take into account the character of the victim, and also to learn 18 One notable and surprising exception about the grief of the survivors. may be found in the April 27, 1991 issue While that position may seem consistent with the of Time magazine, pp. 68-69. overdue emphasis on victims’ rights, it ventures into 19 482 U.S. 496, 107 S.Ct. 2529, 96 the dangerous territory of personal distinctions. In L.Ed.2d440 1987. effect, one victim would be regarded as having more 20 fundamental worth than another, and while individuals 490 U.S. __, 109 S.Ct. 2207, 104 are free to their own opinion on that point, it shouldn’t L.Ed.2d 876 1989. enjoy the sanction of the court. 21109 S.Ct. at 2211. States that allow capital punishment have well developed systems for weighing mitigating and 22669 S,W.2d 519, 523 Ky. 1984. aggravating circumstances. Likewise, requirements 23754 for capital cases are spelled out precisely. It is the S.W.2d 534 Ky. 1988. crime that dictates the punishment and the crime 24766 S.W.2d 58 Ky. 1989. usually speaks for itself. Who or what the victim was, or whether his character was exemplary or shady, 777 S.W.2d 900 Ky. 1989. shouldn’t matter. Nor should the number of mourners or the depth of their sorrow be a factor, Introduction of 26The Court has backed away, however, that issue is excessively inflammatory. from strict reliance on Booth in a non- If the Supreme Court overrules lower court capital homicide case. Campbell v. Com monwealth, 788 S.W.2d 260 Ky. 1990. decisions barring such evidence, the penalty phases of capital trials in some instances would degenerate into 27111 S.Ct. 1031 1991. conflicting testimony about the character of the dead victim, which has nothing to do with either the crime 28111 S.Ct. 9021991. or the defendant. 29March 11, 1991, p. 24. The death penalty is too serious a business to allow extraneous evidence or appeals to emotion. °iii S.Ct. at 905.

31111 S.Ct. at 904. THEPADUCAH SUN, APRIL 28, 1991, Reprinted by permission.

JUNE 1991 / The Advocate 29 DEATH WITHOUT DELIBERATION State Supreme Court Appears Ready to Uphold any Capital Conviction no matter what trial errors occur

The following was a February 17, 1991 darn in the criminal annals of the county.’ his lawyer asked him, "Why do you editorialfrom the San FranciscoExa,niner. To the contrary, there was no evidence deserve to live?" The prosecutor objected whatever concerning any prior violent to question, and the judge sustained criminalconduct by this defendant. this The California Supreme Court has upheld He has the objection. In so doing, the judge vio more than 30 death penalty convictions and never served time in prison nor been con victed of a felony." lated the United States Supreme Court’s sentences in a row, despite obvious and rule that capital defendants be allowed to eyebrow-raising errorsin anumberof them. It virtually doesn’t matter how sloppy the trials Nonetheless, the Supreme Court found this introduce any relevant mitigating are. No matter what happens, the court will "harmless error.’ evidence. Whitt wanted to say something call it "harmless error," and the verdict and mitigating. What could be fairer than al sentence will be upheld. A death-penalty Richard William Garrison was convicted lowing him to look thejury in the eye and defendant in California has as much chance of two murders and a robbery. In January say, "Don’t kill me because? In this with the state Supreme Court as a civil rights 1981, he was sentenced to die in the gas case, the judge summarily refused to let worker in the 1960s had with a Mississippi chamber. Garrison’s court-appointed him do that, a clear violation of the law. justice of the peace. He can’t win. lawyer, oneBlendon Beardsley, who has since died, was an alcoholic who drank The stateSupreme Court found this "harmless This is not a matter of being for or against the error." death penalty or of coddling criminals. Even excessively throughout the trial. The court’s own opinion conceded that those who support the death penalty agree that There are many similar examples, all ofwhich if the state is to take a life, it must do so with "Beardsley drank in the morning, during great care and with full observance of basic lead to the same conclusion: The state court recesses and throughout the eve Supreme Court is ignoring serious errors in constitutional rights. In California, this re ning." The court bailiff reported "that he capitaltrials and rubber-stamping convictions quirement is beingflagrantlyignored. was in close contact with Beaxdsley without adequate review. "Harmless error" throughout the trial, that Beardsley al means that an error occurred, but the court When the California voters removed Rose ways smelled of alcohol but that he did believes that the same result would have been Bird, Joseph Grodin and Cruz Reynoso from reached even if the error had not occurred. the state Supreme Court in 1986, they sent a not see Beardsley stagger or sleep in court.’, Can the court be so sure of what would have message that they wanted death penalty con happened if Watson Allison’s judge had not victtons upheld. The Malcolm Lucas court has confused him with someone else, or if Richard taken that message to heart-in spades. As a One day during jury selection, Beardsley was arrested for dronk driving his way to Garrison’s lawyer had not been drunk at his result, theCalifornia Supreme Court now has on trial orif Jeffrey Sheldon’s jury had not heard one of the highest affirmance rates in capital the courthouse and was found to have a blood alcohol level of .27--three times the about acrime he did not commit or if Charles casesin the nation, higher than Texas, Florida Whiu had been allowed to tell thejury why he and Virginia, the death belt states. The Lucas legal limit for driving. should live? court is so result-oriented andideological that it has all but abandoned the vital task of Yet the Supreme Court found that Garrison The court is making up law to fit each case, making sure that the Constitution is followed had received theeffective assistance ofcoun law sel as required by without concern for an overall rationale. For and that the rule of remains the law ofthe the U.S. and California example, iftheprosecutormisstates thelaw to land. constitutions. the jury, the court says it’s OK because the judge got it right. If the judge missiates the Here are the startling facts ofa few cases that Jeffrey Sheldon was convicted of first law, the court says it’s OK because the the cowl has decided in recent years: degree murder and kidnapping in 1989. prosecutor got it right. If both the judge and During the penalty phase of the trial the prosecutor misstate the law, the court says * In 1989, Watson Allison was convicted Californiahas separate guilt and penalty it’s OKbecause thedefense lawyer got itright. of murdering Leonard Wesley Polk phases in capital cases, the jury was told during a robbery, and he was sentenced aboutaprevious "crime"for whichhehad to die. In sentencing Allison, the judge The voters have stated overwhelmingly and been prosecuted--the murder of a they want the death penalty. referred to his long and violent criminal policeman--and evidence about that repeatedly that record as aggravating Pandering to public opinion, the Supreme circumstances "crime" was admitted. However, Sheldon Court has abandoned its responsibility to leading to thedeath penalty. Unfortunate had been acquittedof that charge, and the make sure that the Constitution is enforced. ly, the judge got it wrong. Allison had no evidence was inadmissible as amatter of Eventually, we are certain, many of these prior criminal record. law. caseswill be overturned by the federal courts. In the meantime, the court has forgotten that Justice Stanley Mosk summed up the situa Nonetheless, the Supreme Court found this unless it observes the law, it will soon lose tion when he wrote in dissent: "The error "harmless justice. was particularly egregious in this instance, error." for the judge obviously did not recollect the facts. Whether he merely failed to recall the Charles EdwardWhitt was convicted last evidence, or acwally had someother case in year of one count of first degree murder, mind, we shall never know because of his one count of robbery and one count of WILLIAM R. HEARST, Ill, Editor, San death. He emphasized the ‘criminal record assault with a deadly weapon. The jury Francisco Examiner. Reprinted by permis of the defendant,’ and again stressed ‘the sentenced him to die. During the penalty sion of the San Franciso Examiner. Copyright long and distinguished record of the defen phase, Whitt took the wimess stand, and 1991 San Francisco Examiner.

JUNE 1991 The Advocate 30 ______

PENALTIES PURSUANT TO 1991 DUT AMENDMENTS

COMMENTS Dlii, FINE JAIL/PRISON PUBLIC SERVICE SUSPENSION PERIOD 189A.O1O WORK Atheror B Must be at least one- cannot be probated, con 1STOFFENSE $2OO-$5O% heur3OdaysAB 48hoursto3OdaysC ditonally discharged, or + 150.00 - license after 30 subject toearly release. C 2NDOFFENSE $350_$500D 7days6monIhsHD lodaysto6monthsE l2nionths0 May apply to judge within5 years .4150.00 for this option in lieu of eitherjail or fine. 41D lodaystol2monthsE 3RDOFFENSE 30daysto12months D within5 years $150.00 F Both must be ac ceased. 4TH OR GREATER Sl,000-$10,000’ 1-5 years Possible as a condition of 60 months0 E within 5 years probation or conditional discharge Penalty available to trier of fact as option in SUSPENDED additionto fine and jaiL OPERATOR’S F Servicefee designated LICENSE as a fuse pursuant to 189A.090 Beane v. Common wealth, 736S.W, 2d 317 0-$250 0-90 days As acondition of probation or Twice original revocation period 1ST OFFENSE KY 1987. within 5 years conditional discharge ° Assuming adult of 04500.00 0-12 months As a condition of probation or Twice original revocationperiod 2ND OFFENSE . fender - juvenile of within 5y conditionaldischarge fenderissuspended until 000000’ Twiceoriginal revocation period 18 or listed penalty 3RD OFFENSE OR 1-5 years As a condition of probation or whichever is greater. GREATER conditional discharge 11At least 48 hours must be consecutive to other sentences. REFUSAL I N/A lst-6 months Pursuant to KRS All are within 5 years N/’ N/A 534.030 in lieu of Ian 2nd- 18 months prisonment as a condi tion ofprobation or con 3rd- 36 months ditional discharge. days 4thor Greater- 60 months Minimum of 120 mandatory jail time. Prepared by Rob Riley, Assistant Public Advocate, La Grange Trial Office, Oldham/Henry/Trimblc Counties LaGrange, KY 40031 502 222-7712 VIEW PLAIN Search and Seizure Law

California v. Hodan such as touching, or "submission to the assertion of authority." Thus, by fleeing, Hodari futilely avoided arrest andmissed the protections of the Fourth Amend In Terry v. Ohio, 392 U.S. 11968, the ment. Even thoughHodari clearly did not Court stated that a seizure occurs "when feel free to leave, under Mendenhall ever apoliceofficeraccosts an indivIdual neither had he been seized for Fourth and restrains his freedom to walk away," Amendment purposes. Thus, even which happens "when the officer, by though the police had neither probable means of physical force or show of cause rioT a reasonable suspicion when authority, has in some way restrained the they began to chase }lodari and his liberty of a citizen." friends, that is without significance to the Fourth Amendment analysis precisely In United States v. Mendenhall, 446 U.S. because there was no seizure. 5441980, theCourt stated that a person FOURTH AMENDMENT was seized for Fourth Amendment pur The opinion gathered a surprising seven The right ofthe peopleto be secure poses when "in view of all of the cir justice majority, demonstrating the ex in their persons, houses, papers, cumstances surrounding the incident, a tent to which Fourth Amendment claims and effects, against unreasonable reasonable person would have believed will be planted in rocky soil henceforth searches and seizures, shall not be that he was not free to leave." This test in the Supreme Court. It further demon was reaffirmed as late as Michigan v. strates a proclivity to abandon precedent, violated, and no Warrants shall Chesternut, 487 U. S. 567 1988, just both hallowed and recent, in order to issue, but upon probable cause... three short years ago. pander to perceived needs of the law enforcement community. SECTION 10 It was in this context that young Hodari KENTUCKY CONSTITUTION D. was standing with others on a street in Only Justice Stevens and Marshall Oakland, California, when to his chagrin, remain. The dissenters state the majority The people shall be secure in their police officers appeared. Perhaps be opinion has "significantly limited the persons, houses, papers and pos cause of the rock cocaine in his posses protection provided to the ordinary sessions, from unreasonable sion, or perhaps because he had tired of citizen by the Fourth Amendment," search and seizures; and no war confrontation with the police whenever They fear that the opinion "will en he gathered on the streets of his city, he courage unlawful displays of force that rant shall issueto searchanyplace and his friends took off. After a chase, will frighten countless innocent citizens or seize any person or thing, Hodari threw away his rock and was into surrendering whatever privacy without describing them as nearly shortly thereafter tackled. The United rights they may still have." The dis as may be, nor without probable States Supreme Court grantedcertiorari senters note the irony that the citizen following a California decision that himself by his submission to the showof cause supported by oath or affir Hodari hadbeen seized illegally when he authority, or on the other hand by his mation. saw the police running towards him. decision to flee, will himself decide at California v. Hodari, 49 Cr.L. 2050 what point his Fourth Amendment rights April 23, 1991. come into effect. The only question for the Court was "whether, with respect to a show of THE KENTUCKY COURT authority as with respect to application of OF APPEALS physical force, a seizure occurs even though the subject does not yield." The seven member majority held in an Coker and Pritchard v. Commonwealth opinion written by Justice Scalia that it Appeals haswrit This regular Advocate column reviews does not. The Kentucky Court of published search ten a significant Section Ten decision. It all and seizure Coker and Pritchard v. Com decisions of the United States Supreme Justice Scalia borrows liberally from is entitled the Kentucky common lawnotions of arrestin reaching monwealth, Ky. App., S.W. 2d. Court, Supreme Court, ....._.March 1991, Lobe published. In and the Kentucky Court of Appeals and his decision regarding when a seizure 8, significant cases from other jurisdic occurs. Rejecting the Mendenhall test as this decision, written by Judge Wilhoit tions. stated above, he instead writes that such arid joined by Judges Stumbo andLester, an arrest requires either physical force, the Court puts some meat on the bones of

JUNE 1991 / The Advocate32 the Section Ten. Here, the police executed a police may investigate the occupants of 663 S.W. 2d 213 1983, because a car of probable cause. existence of the gun pouch and spent search warrant for 814 Glen Hollow short that Road. That search produced no evidence. shells simply gave rise to no belief However the police did find that Coker In this case, Creech and a male com the car contained contraband. Thus, the condi was moving to Royal Gardens Court. panion were in a car bent over facing each search was illegal, and Smith’s Later the officers found Cokerat the new other at 2:45 a.m. in the corner of a dark tional plea was to be vacated. address and arrested him there. parking lot in Covington. When the police pulled into the lot, Creech sought Following the arrest, thepolicecalled the to leave, but instead was flagged down. THE SIXTH CIRCUIT district judge at his home, desirous of Once Creech was stopped, the police searching Coker’s new apartment. The found narcotics in plain view. The ques UnitedStates of America v. Crotinger judge advised the officer to simply alter tion, however, was whether the police the old search warrant by inserting the could stop Creech in thefirst place under The Sixth Circuit considered two search 1,88S.Ct. 1868, new address. That was done without the Terry v. Ohio, 392U.S. and seizure issues in the case of United the "new" warrant. 20L.Ed.2d 889 1968. district judge signing States ofAmerica v. Crotinger, 928 F. 2d. The police executed the new warrant at 6th Cir. 1991. Here, the police Court held 203, the Royal Gardens Court apartment and In a surprising opinion, the pulled over a car going 66 in a 55 zone found cocaine, marijuana, and drug that the stop was legal. "It would be Interstate 40. Thepolicenoticed white considering the on paraphernalia. Coker’s motion to sup reasonable to suspect, pills on thefloor of thecar as they asked press was denied in Circuit Court based totality of the circumstances, that Creech for a license. When they returned, they upon the good faith exception to the war and his companion could have been in could no longer see the pills, but they rant requirement, citing United States v. volved with a stolen vehicle or certainly marijuana. Theowner’s wife been engaging in some could smell Leon, 468 U.S. 8971984. TheCourt did could have then consented to a search of the car, no analysis under Section Ten of the criminal activity at the time and place which resulted in two smoked marijuana Kentucky Constitution. Kim observed them." Thus, the evidence found in an overnight was cigarettes being which soon became readily apparent bag. The mother lode, however, was The Court of Appeals reversed. Sig admissible at the defendant’s trial. found in a search of the trunk of thecar, nificantly, the Court based its reversal 122 pounds of marijuana. entirely upon SectionTen. UnderSection Unfortunately, the Court gives little specifically Ten, both the affidavit and warrant were guidance regarding their reasoning. The Court held that a passenger’sprivacy faulty for notmentioning the Royal Gar What differentiates this case from the not been violated. First, the dens Court address. "No affidavit was hundreds of similar cases which the rights had Court held that the stop was not pretex ever presented to thejudge to support a police face every night? Is the Court warrant search tual since the driver was speeding. Fur for the of those premises. saying that the police may make a Terry this to be a classic best he received an unswornoral ther, the Court found At state stop of every carin aparking lot at night? States v. Ross, 456 U.S. 798 ment. It has also been long recognized The Court simply does nothing to inform United 1982 probable cause car case. Under that an oral statement is insufficient to the policeor the Bar about why this case thefacts, probable cause developed inex support theissuance ofa search warrant." is unique. Ifit is not unique, then the case orably as the search occurred. The Court is wrongly decided and should be Chadwick and San Court distinguished both The further rejected any good faith reversed by the Supreme Court of Ken probable cause here was on the part of the police officers, Even tucky. unique, then the Court ders because if If it is present as to theentire carand notjust the Leon applies under Section Ten, which should say so. the Court does not assume, ‘we arc containers in the car. astonished that one would consider that Irvine A. Smith v. Commonwealth the warrant was reasonably relied upon THE SHORT VIEW by the police." The Court also rendered an interesting decision in Irvine A. Smith v. Common Ultimately, theCourt held that the search wealth on March 29, 1991, not to be 1. Dimeo v. Griffin, 924 F.2d 664 7th had been illegal, and that all evidence published. Here, Smith was stopped for Cir. 1991. In a case of some interest in seized had to have been suppressed. speeding, and subsequently arrested for Kentucky, the Seventh Circuit has held While theCourt acknowledged that there driving on a suspended license. A pas that the circumstances of the racing in were societal costs to such suppression, senger compartment search revealed an dustry do not justify special needs sear the Court reminded all of us that "It is empty gun pouch and spent shells. A ches. Unlike National Treasury much better that a guilty individual request to searchthe trunk was countered Employees Union v. Von Raab, 489 U.S. should escape punishment than that a with an obscenity laced expression of 656 1989, the circumstances of the court of justice should put aside a vital indifference. The search of thetrunk then racing industry are not sufficiently sub fundamental principle of the law in order revealed a plastic garbage bag of stantial to justify allowing random urine to secure his conviction’, citing Youman marijuana. The trial court deniedthemo testing and similar warrantless seizures v. Commonwealth, 189 Ky. 152, 224 tion to suppress. of body samples. S.W. 860, 866 1920. This case repre sents a fine analysis, and a refreshing use The Court of Appeals, however, 2. People v. Wright, Cob. Sup. Ct., 804 of our state constitutional search and reversed. The Court had no problem with P.2d 866 1991. The police may not seizure provision. the initial search, saying that it was inci search without a warrant the purse of a dent to Smith’s arrest. It was the search driver who has been in an automobile Creech v. Commonwealth of the trunk that was problematic. The accident, despite the officer’s professed Court rejected that a search incident to needfor information in order to complete The Court decided another case on the arrest extended into the locked trunk. his report. Accordingly, drugs found March 22, 1991, also to be published. In Further, the search could not be con during a search of the purse had to be Creech v. Commonwealth, Ky. App., ducted as a probable cause search under suppressed. _S.W. 2d_March 22, 1991, the United States v. Ross, 456 U.S. 798 Court revisited the question of when the 1982 and Estep v. Commonwealth, Ky.,

JUNE 1991 / The Advocate 33 3. United States v. Hahn, 922 F.2d 243 1991. This is truly a modem search and ERWIN W. LEWIS 5th Cir. 1991. The IRS cannot search a seizure case. The police obtained a war Assistant Public Advocate car without a warrant as an inventory rant for a defendant’s computer, having Director DPA without written guidelines for an inven established probable cause that the com Clark/ Jackson / Madison County Office tory any more than a local police depart puter contained information tying the Richmond, KY 40475 ment can do so, according to the Fifth defendant to a robbery/murder. The 606 623-8413 Circuit, Nor can the IRS "borrow" such defendant, however, had deleted the inventory guidelines from a local police desired information, which was then department. TheCourt relied specifically stored on the hard drive. The Court on the case ofFlorida v. Wells, 110 S. Ct. rejected the defendant’s contention that SIXTH CIRCUIT COURT HEARS 1632 1990, where the Court "clearly thepolice needed to obtain another war ACLU CASES expressed its view that inventory sear rant for the hard drive, saying that "An ches must be regulated in order to limit attempt to destroy evidence is not police discretion and reduce the danger equivalent to a legally protected expecta The Sixth Circuit heard oral argument in that inventory searches will become a tion of privacy. Appellant’s unsuccessful two ACLU of Kentucky cases involving disguise for warrantlessevidentiary sear attempt to delete documentsor files from search and seimre. ches." his computer did not create a legally protected expectation of privacy which In thefirst, Jeffers v. Heavrin, Tony Jeffers 4. State v. Derifteld, Iowa Ct. App., 48 would have required a second warrant sued the Jefferson County Police Depart Cr. L. 1428 1129/91. Once the police before the prosecution applied technol ment and Churchill Downs for searches con search a car incident to a lawful arrest, ogy to elicit the content of files buried in ductedof Kentucky Derby patrons. Jeffers they may not reenter the car to conduct a the memory of the computer." was arrested for possession of his allergy search, according to the Iowa medication which police suspected might second be Valium, even though the pills bore their Court of Appeals. 8. Wilner v. Thornburgh, CA DC, 49 proper markings after police searched his Cr.L. 1024 3/29/91. In the turnabout is prescription pill boule, which was locatedin 5. Commonwealth v. Welch, Pa. Super. fair play category is this decision by the apotato chip can inside a grocery bag. Police Ct., 4569 A.2d 1387 1991. The refusal D.C. CircuitCourt of Appeals. The Court were allegedly searching for alcohol, glass to consent to a search may not be intro holds that lawyers applying for jobs with and wcapons. After a three-day trial con duced against a defendant at trial, The the Justice Department may be forced to ducted for the ACLU by Ed Post, Al Quick Pennsylvania Court analogized their pee in a cup. Relying on Skinner v. Rail and Chris Rivers, U.S. Disttictludge Ronald to the similar proscription way E. Meredith ruled that the searches were holding again Labor Executives Ass’n., 489 U.S. lawful and that Jeffers had consented to st the use of the invocation of Fifth 602 1989, the Court finds the special them by voluntarily entering Churchill Amendment rights at trial. "The point of needs of the Justice Department to out Downs. significance is that one should not be weigh the diminished expectation of penalized for asserting a constitutional privacy of the lawyer applicant. TheSixth Circuit foundthat the gate search right....The integrity of a constitutional was consenual, but reversed and remanded protection simply cannot be preserved if 9. United States v. Taketa, 923 F,2d 665 on the grounds that the police used the entry the invocation or assertion of the right 9th Cir. 1991. Does a government policy of a private entity tojustify a search can be used as evidence suggesting employee have a right not to be otherwise beyond the power of the police agency to conduct. Had Churchill Downs guilt." videotaped? According to the9th Circuit, employed private security guards, they the answer is yes. Here, two drug agents would have eithergranted or denied Jeffers 6. People v. Hinton, Calif. Ct. App. 2d were suspected of illegal wiretapping. entry. Dist., 278 Cal. Rptr. 36 V6/91.Not to Video surveillance was set up of one of be published A passenger in a car con their offices. The 9th Circuit held that a Although voluntary consent is a substitute taining a person against whom there is an warrant was required for the video sur for probablecause to search, when it comes warrant to arrest, the offficermust have independent outstanding arrest may not be veillance due to the fact that the surveil cir searched or detained merelybecause they lance was directed evidence probable cause. In the totality of the at obtaining cumstances that did not exist here. The bot are in the car with such a person. of criminal conduct rather than mere tle did not contain a recognizablecontrolled work-related employee misconduct. substanceJeffers offered a betieveable ex 7. Commonwealth v. Copenhefer, Pa. planation and even offered to call, or have Sup. Ct., 587 A.2d 1353 March 18, the officer call, his doctor. Jeffers met no "profile." The can was used to segregate small items, so there was nothing unusual about the pill bottle being there. The pills ENTRAPMENT DEFENSE GUIDELINES themselves were identifiable by the The Physician’s Desk Reference available to Officer Heavrin. Jeffers v. Heavrin a:at. 1991 WL74189 6th The Institute for Law andJustice, in conjunction with the Bureau of Justice Assistance Cir. Ky. published a monograph, Entrapment Defense in Narcotics Cases: Guidelinesfor Law Enforcement, to provide guidelines designed to minimize the likelihood of a successful In the second case, Wilt iams v. Ellingion, a entrapment defense, particularly in drug cases. Themonograph contains four chapters, Graves County high school student chal each addressing a specific area of the entrapment defense. lenged her strip search by school officials searching for drugs. David Armstrong and Janice Jacobs handled the case for the Chapter 1 defines the entrapment concept and briefly reviews pertinent U.S.Supreme ACLU at trial, where U.S. District Judge Court decisions. Chapter 2 addresses the alternative standards governing the entrapment Charles R. Simpson Ill held that the search defense, while the next chapter provides specific guidelines for dealing with each of the was supported by "reasonable suspicion" prevailing entrapment standards. The final chapter covers the need for supervisory and was thus lawful. Nodecision as yet. oversight to avoid the entrapment defense successfully.

To request a copy of the monograph contact: Mike McCampbell, Institute for Law and Justice, 1018 Duke Street, Alexandria, Va. 22314703 684-5300

JUNE 1991 I The Advocate 34 EVIDENCE LAW Using Ky’ s Constitution to Challenge Established Evidence Practices

‘1 If someone asked you to identify the legal lawyers with heavy caseloads can find authority that allows the Commonwealth the law that they need when they need it. to take asample ofyour client’s blood for In this article, we are going to examine DNA testing, what would your answer the issue of whether the Commonwealth be? If you answered Schmerber v. can force a criminal defendant to submit California 384 U.S. 757 1966, you a blood sample for purposes of DNA would be wrong but your answer would testing. The issue is important for many be theanswer ofthe majority. Schmerber reasons but chiefly because the issue in does not declare Kentucky law nor does volves all aspects of Kentucky law, it authorize any state to force a defendant statutes, rules, common law and constitu to submit to a blood test. It only says that tional law. By examining the law, we will under the circumstances of that case the be able to look at the important sources "search" was a valid search incident to of information and legal authorities that arrest because of the danger of the al will be useful in considering other FOURTEEN AMENDMENT cohol metabolizing in the defendant’s evidence questions. system and the reasonableness of the No state shall make or enforce any limited intrusion to secure the sample. It is important not to limit your argument law which shall abridge the [384 U.S. at 768-772]. The court specifi to the Kentucky Bill of Rights. There is privileges orimmunities ofcitizens cally limited its conclusion only on the a lot more to our argument under the state ofthe United States; nor shall any facts of the present record." The court constitution than citation of somesection State deprive any person of life, noted that "the integrity of an of the Bill of Rights. Bare assertions that individual’s person is a cherished value Section 10 prohibits compelled blood liberty, or property, without due of our society" and cautioned that the tests are not going to impress the court process of law; nor deny to any holding in the case "in no way indicates very much because comparison of the person within its jurisdiction the that it the Constitution permits more language of Section 10 with thelanguage equalprotection ofthe laws. substantial intrusions or intrusions under of the 4th Amendment shows that it is other conditions." [384 U.S. at 772]. quite similar. Under these circumstances, the court can decide according to its own Relying on the last paragraph of Schmer preferences. But the court’s discretion in ber, you could argue that because your ruling will be limited if it knows that RCr client’s DNA is not going to evaporate or 7.24 doesn’t authorize compelled blood metabolize the 4th Amendment would tests in criminal cases, that under com prohibit taking a blood sample for that mon law a person’s body cannot be sub purpose. [Winston vs. Lee, 470 U.S. 753 jected to non-consensual intrusion in the 1985]. But the problem is that for 25 absence of a positive enactment of law, yearsno one has paid any attention to the that Section 11of the Constitution con last paragraph of the majority opinion stitutionalizes this principle, and that and consequently everybody thinks that Section 11 prohibits forced disclosure of Schmerber authorizes a blood test any fact that might incriminate thedefen anytime a police officer or prosecutor dant, testamentary or otherwise. says that she needs it. Winning a 4th Amendment claim would be a real ac To obtain this information it is necessary complishment. to develop a method of approaching a case that goes beyond citing the state This situation is an unhappy resultof Bill constitutional analogue of afederal right. of Rights worship that defense lawyers To obtain this information we have to have been guilty of for years. Defense examine the structure of government lawyers have focused on the federal Bill under thestate constitution, the history of of Rights for so long that our knowledge law in Kentucky and elsewhere, the sub of state law has atrophied and now that stance and interplay of Kentucky com This regular Advocate column reviews federal cases are coming down against us mon and statutory law, and the text, new evidence cases decided in Ken we have to scramble to find out what the structure, and meaning of the Bill of tuckyand federalcourts, anddeals with state law is and how we cars use it to Rights of the KentuckyConstitution. The specific evidentiary problems en protectourclients from unfair treatment. order in which the method is set out is countered by criminal defense attor The state law in many cases is favorable significant and intentional. Each of the neys. to our clients. The question is how first threeparts contributes to an accurate

JUNE 1991 I The Advocate 35 understandingofthe Bill of Rights. There TheCriminal Rules place similar limita was not adopted until 1968. Before 1962, really is no way to find out what the Bill tions on the district court in felony cases. the Criminal Code of 1854 made no of Rights means except by going through Under RCr 3.141, the only thing that a provision whatever for discovery or in the legal history and development of the district court may do at the preliminary spection. [Carroll’s Kentucky Codes, particular issue first. And it is important hearing on a felony charge is determine 1948 Rev., Ch. 4, Sections 150-153; to make an accurate statement of thelaw probable cause and hold the defendant Evansv. Commonwealth,Ky., 19 S.W.2d when you first make astate constitutional over for the grand jury. There is no 1091, 1093-1094 1929]. Production of argument. You will be facing an unrecep provision in the statutes for the district evidence was limited to depositions and tive audience. People are not used to court to entertain motions in the natureof subpoenas to appear at trial. At common dealing with the Kentucky Constitution, discovery, which is what a motion for a law, there was no discovery at all. [6 and, where blood tests are concerned, blood test is. Under theConstitution, the Wigmore Evidence, Section 1845, Sec they think they know what the law is. district court’s jurisdiction is only what tion 1860, Section 1859 Chadbourne Telling judges that they don’t know the the General Assembly says it is. In the Rev., 1976; 2 LaFave and Israel, law is no easy task. The only way to do absenceof specific authorization, thedis Criminal Procedure, Section 19.3 this effectively is to be as sure as you can trict court could notrule favorably on the 1984, Because there was no discovery of your grounds and ready to back up motion for blood test even if it wantedto. before the enactment of the criminal your assertions with definite proof. Con The text of RCr 3.07 confirms this con rules, discovery irs Kentucky criminal struction of correct arguments is not that clusion. cases is what the Supreme Court says it hard, as I hope we will see below. is inChapter 7 and no more. In that rule, the mode of proceeding is EXPLANATION OF THE determined by the nature of the charge. A circuit judge proceeding under RCr PROBLEM In a felony case, a districtjudge does not 7.24 is limited by what the rule allows. have authority to try the offense charged The circuit court has no authority on its For purposes of this article assume that and therefore thejudge "shall proceed" in own to go beyond the limits of the rule during their investigation of a robbery accordance with Chapter 3 of the Rules. and the rule does not provide for com case in which the prosecuting witness A judge may proceed under Chapter 7 pelled blood tests. It only allows for received a serious knife wound the police [discovery] of the rules only when she reciprocal inspections and for copying of found fresh blood at the scenethat upon has"authority totiy the offense charged." the results of scientific tests or physical testing turned out to be a type different The district court is compelled to honor examinations "which the defendant in from that of the prosecuting witness. On this limitation because the rules govern tends to introduceas evidence," or which the basis of a weakeyewitness identifica all proceedings in the Court of Justice. were prepared by "a witness who the tion by the prosecuting witness your [RCr 1.021], The motion for the blood defendant wishes to call at trial." [RCr client has been arrested and jailed on a sample fails in the district court because 7.243Aii]. In a recent addition, the criminal complaint. No other evidence the court is forbidden by the criminal rule provides that if a defendant intends implicating your client has been found rules, by Chapter 24A of the statutes, and to rely on a defense of mental disease or so, citing Schtnerber and Newman v. by Section 111 of the Constitution to defect, a court may order him to submit Stinson, Ky., 489 S.W.2d 826 1972 grant the relief requested. There is no to a "mental examination." [RCr along with the need for the test, the need to resort to any other part of the 7.24Bii. The defendant is granted prosecutor has filed a motion to get a constitution at this point. confidentiality if he does participate, but sample of your client’s blood for DNA he also can refuse to submit to the ex identification. How do you prevent this? THE NEXT STAGE OF THE amination. [RCr 7.243B; 3C. l’his PROBLEM right of refusal is analogous to the right INITIAL RESPONSE of a civil litigant to refuseto submit to a Assume now that the Commonwealth physical examination for determining The case is in the district court at this hasobtained a first degreerobbery indict blood groups under CR 35.01. A party point because of the criminal complaint. ment by direct submission to the grand who refuses to submit to the tests may Your client is charged with first degree jury. The Commonwealth flies the same suffer procedural penalties and may lose robbery, a Class B felony. There is no motion in the circuit court and the circuit his case but the court cannot coerce sub need to get fancy or to worry about the judge enters an order granting you dis mission tothe test by its contempt power. Bill ofRights here. Thewinning response covery and granting the Commonwealth [CR 37,022d]. The court cannot com is lack ofjurisdiction to grantrelief on the reciprocal discovery. The judge has set a pel submission to an invasion of a motion. pretrial date to hear your objection to the litigant’s body. The reasons for this result motion for blood test and the is found in the limits of the court’s The district court is a court of limited Commonwealth’s claim that it is entitled authority and in the common law. jurisdiction, "and shall exercise original to the blood sample. jurisdiction as may be provided by the RESPONSE IN CIRCUIT COURT- General Assembly." [Constitution, Sec RESPONSE IN THE CIRCUIT JURISDICTION AND tion 1136]. The district court hasjuris COURT - RULES COMMON LAW diction to dispose of all juvenile matters and all misdemeanor cases, but it does The circuit court has jurisdiction of this The Supreme Court under Section 116 of not have jurisdiction to make a final charge, so a different approach is re the Constitution is authorized to enact deposition of any felony. [KRS quired. [Constitution, Section 11251. It "rules of practice and procedure for the 610.0101; 24A.1 101, 2; 24A.1301. is easy to deal with the discovery argu Court of Justice." By definition, rules of In felony cases it hasjurisdiction concur- ment because the text of Chapter 7 does practice and procedure exist to provide - rent with the circuit court "to examine not allow the discovery that the Com an orderly framework for the exercise any charge of a public offense monwealth seeks. It is important to note and application of the substantive law. denominated as a felony or capital of first that discovery in criminal cases is a Section 116 cannot be a basis for com fense. . . and to commit the defendant to relatively recent innovation, becoming pelled blood tests in criminal cases. The jail or hold him to bail or other form of available onlyin 1962 when theCriminal Supreme Court hasnever and legally can pretrial release," [KRS 24A.1 103]. Rules were adopted. [Ky. Acts, 1962, Ch. never enact a court rule that would sup Thisis it as faras felony jurisdictiongoes. 234, p. 807]. RCr 7.24 in its present form port a forced blood test. It would be an

JUNE 1991 / The Advocate36 abuse of the limited authority givers to the Both CR 35.01 and RCr 7 were enacted case on this point is Union Pacfic Rail Court underSection 116. Rather, only the as statutes by the General Assembly in way v. Botsford, 141 U.S. 250 1891 General Assembly of Kentucky has the 1952 and 1962, well before the adoption which held that the federal courts could authority, if it exists, to compel a blood of Section 116 of the Constitution. All not order a physical examination of a test. these statutes indicate hesitation to force defendant in acivil case in theabsence of anyone to submit toy form of medical statutory authority. The principle relied Section 29 of the Constitution assigns the or physical testing or treatment. Five on in that case was that legislative power of government to the specifically provide thai a person cannot General Assembly. A major part of that be compelled to submit while two more "No right is held more sacred, o is more power is the authority to declare public allow for a religious exemption. A carefully guarded, by thecommon law, than syphilis test by not the right of every individual to the posses policy, that is, the authority to decide woman may avoid the sion and wnirol of his own person,free from what thelaw of Kentucky should be, "It seeing a doctor. In any event, the statute all restrains or interference of others, unless is elementary that the legislative branch does not authorize thedoctor to coerce a by clear and unquestionable authority of has the prerogative of declaring public sample. A person must submit to TB law." 14! U.S. as 2511. policy and that the mere wisdom of its testing and treatment, but only after choice in that respect is not subject to the being diagnosed for that disease. A con Nothing in Kentucky law clearly judgment ofa court." IFann v. McGuffey, victed prostitute must submit to testing authorizes coerced blood testing in the Ky., 534 S.W.2d 770, 779 19751. The and treatment, but only after conviction. absence of statute. The more reasonable Supreme Court has recently recognized Theonly pre-adjudication blood test that view of the situation is that the person’s the limitation of its authority to deal with can be compelled under thestatute law of common law rightto personal security is subjects of substantive law in Mash v. Kentucky is the test of a putative father so important that only an act of the Commonwealth, Ky., 769 S.W.2d 42 under KRS 406.081. But the purpose of General Assembly, declaring as a matter 1989. There the Court noted that Sec this test is determination of paternity for of public policy thenecessity of invasion, tion 29 of the Constitution "gives all purposes of child support. The only is sufficient to justify coerced physical legislative power to our General As reasonable conclusion to be drawn is that testing or treatment. As we will see in the sembly" and that Section 28 of the Con the General Assembly has determined constitutional argument, I believe Sec stitution "prohibits all persons or collec the public policy of Kentucky to be that tion 11of theConstitution constitution tions of persons of one of the three no person, except in the interest of public alizes this principle thus presenting departments from exercising any legisla health, support of children, or after ad another argument against ad hoc orders tive power properly belonging to the judication of guilt of a crime, may be requiring blood test. other one." In Mash, the Court acknow compelled tosubmit to any medical treat ledged that it had no authority to add to ment or physical tests. One other possible argument in support the statute governing arrest. of the authority to order tests is based on Ofcourse, the prosecution canargue that the case of Newman v. Slinson, Ky., 489 Review of the statutes show 11 instances where a specific statute has not sup S.W.2d 826 1972. Newman is often in which the General Assembly has planted the common law, the common cited in compelled blood test motions. authorized non-consensus! blood testing law prevails. [N. Ky. Port Auth. v. Cor That case ostensibly holds that thereis no or forced medical treatment and testing. nell, Ky., 700 S.W.2d 392 19851. But constitutional violation in coerced blood ‘Fhree of the statutes are the "implied the common law is clearly against such testing. But what is often overlooked in consent" statutes for DWI. In each such an argument for compelled testing. The this case is that it involves an implied statute, the subject has the right to refuse subordinate courtsof theCourt ofJustice consent statute, KRS 186.565, which the test, although he does so at the cost of are required to follow the precedents of deems the person to have consented to his driving privilege. IKRS 189.520; theappellate courts. [SCR 1.0405]. The the blood test by the act of operating a 189A.100; 186.565]. Children must be precedents areclear motor vehicle. Aside from the historical immunized against diseases unless there errors contained in this opinion, it is ob is a religious objection and, unless there "Every human being of adult years and vious that if a person has consented in is a religious objection, each newborn sound mind has a right so determine what shall be done with his own body." Tabor v. advance to the tests, there can be no child must be tested for PKU EKRS legitimate objection to the test. 214.034; 214.155]. Scobee, Ky., 254 S.W.2d 474,475 19521. It seems obvious to me that the circuit There are four situations The only exception to this rule occurs in which a blood when there is an emergencythat prevents court does not have jurisdiction to ignore test is required. A physician must get a the person from indicating his desires. the common law of Kentucky and the blood sample from a pregnant woman at clearly expressed wishes of the General her first presentation in order to test heT Thisrule is notan innovation. In English common law, the most fundamental of Assembly of Kentucky and of the for syphilis. [KRS 214.160]. KRS Supreme Court of Kentucky in regard to 406.081 requires a putativefather to sub the "absolute" rights enjoyedby the sub ject was the "right of personal security" coerced physical testing. Maybe the mit to ablood test to determine paternity. Supreme Court has authority to change KRS 2 15.540 requires a person pre which consisted of "a person’s legal and uninterrupted enjoyment of his life, his the common law. However, in light of viously diagnosed to have tuberculosis to Fann v. McGuffey, it seems unlikely. A submit to testing and hospitalization. limbs, his body, his health, and his reputation." [1 Blackstone, Cornmen right as important as a person’s right to And, a convicted prostitute "shall be re physical integrity and freedom from in quired to undergo screening for human lanes, [1765], U. of Chicago Reprint, p. 125 1979; Posner, The Economics of vasion cannot be disposed of by the ad immunodeficiency virus infection." The hoc determinations of the circuit court Justice, p. 15-18 1983]. This right is a person "shall submit to treatment and natural develop judge. I believe that such a rule, if it is counselling as acondition ofreleasefrom right that pre-dated the ment of government. And it was so deep possible under the Constitution, can be probation, community control or incar enacted only by the General Assembly. ceration." [KRS 529.090. This statute ly implanted in the common law that historically no court could order an act Because that body hasnotacted, we must stands in contrast to KRS 214.1815 conclude that the circuit court does not which prohibits HIV testing without in contrary to the rule without a specific statute authorizing the act. [Smith v. have jurisdiction to order the test on its formed consent except in cases of emer own authority. gency. Southern Bell Telephone Co., Ky., 104 S.W.2d 961, 964 1937. The leading

JUNE 1991 I The Advocate 37 THIRD STAGE OF THE unconstitutional, but void, as beyond the courts generally have found two reasons PROBLEM authority of government to enact. [e.g. not to treat them that way. The first is the Columbia Trust Co. v. Lincoln Institute, theory that a person may forfeit the right, Assume that while the prosecutor was 129S,W. 113, 116 19101. Thisprovis by commission of a crime or some other reviewing her file she found an unex ionis veryuseful when you can catch the act. [1 Blackstone Commentaries, p. 54; ecuted but facially valid search warrant government in a plain violation of the 140]. The other is that a person may not that wassigned by acircuitjudgeandthat provisions of the Bill of Rights. But at the exercise his rights where such acts will authorizes the police to take your client same time it understandably makes affect the health, safety or welfare of to a hospital for the purpose of providing courts reluctant to find the violations in others. [Posner, The Economics of Jus a blood sample for DNA testing. She has the first place because there is nothing to tice, p. 15; 19; Chapman v. Common attached the warrant and affidavit to her do in that situation except to say that the wealth, Ky., 172 S.W.2d 228, 229 memorandum, and now argues that be act cc the law is a nullity. This is why 1943]. But the key corollary to this cause ajudge has issued a search warrant courts prefer to decide cases on non-con second principle is that the government and that the infonnation with respect to stitutional grounds if they can arrange to may notprohibit an individual "any liber the blood test is not stale the Common do it. Constitutional decisions engrave ty the exercise of which will not directly wealthmay rely on thewarrant to get the principles instone. Few courts want to be injury society." [Commonwealth v, blood test even if it does not prevail on pinned down in that way. So, when pos Campbell, Ky., 117 S.W. 383, 385 other arguments. sible, it is a good idea to find some com 19091. This brings us to the first sec monlaw, statutory, or rule-based reason tions of the Bill of Rights pertinent to this RESPONSE - KENTUCKY BILL to citealong with theconstitutional claim issue. OF RIGHTS you aremaking in a case. INHERENT AND INALIENABLE Ifthe circuit court does not rulefavorably Section 26 also highlights the important RIGHTS on the jurisdictional and legal grounds difference between the functions of the already presented, recourse to the Bill of Federal and the Kentucky Constitutions. Section 11 of the Constitution is part of Rights is thenext step. The most obvious It is basic Con Law I theory that the the "Pleiades" amendment presented to ly apt sections for the problem in this federal constitutiongrants certain limited the 1890 constitutional convention. It is stage areSections 1, 2, 10 and 11. Other powers to a federalgovernment that may perhaps the one real innovation in the Bill provisions may apply tangentially, but not exercise any powers in excess of of Rights presented at that convention. the sections just named deal with the those granted. Section 26, on the other C.T. Allen, the drafter of Section 1 [1 substantial issues presented by this prob hand, expresses what might be called the Debates of 1890,435], designed the sec lam. Before examining the applicability "agency" theory of government. It begins tion to be the repository of the inherent of the provisions however it is important with a sentence about "the high powers and inalienable rights of every human to consider what we aredoing. There are which we have delegated." The high person. [1 Debates, 494]. He noted that some ground rules about constitutional powers referred to arethe legislative, ex most of the rights had been scattered litigation that should be laid out andI do ecutive and judicial powers assigned in throughout theprevious constitutions but so inthe next few paragraphs. Sections 29, 69 and 109 of the Constitu that he and the drafting committee had tion, There are no limitations in the text gathered them together to emphasize the The most important rule is found in Sec of those sections. Therefore, the grant is purpose of the Bill of Rights. By moving tion 26 of the Bill of Rights. Section 26 one that gives the government the power the Bill of Rights to the first place in the says that all substantive provisions of the to do any act that the particular branch Constitution, the drafters intended to Bill Sections 1-25 are "excepted outof believes is necessary or desirable. [e.g., "magnify" the individual. The Bill of the general powers of government" and Holsclaw v. Stephens, Ky., 507 S.W.2d Rights had been the last Article of each are "inviolate." The general powers of 462 19731. But just as a principal can of the previous three Constitutions. To government are the legislative, judicial withhold from the agent the authority to emphasize the importance of individual and executive powers delegated and as do certain acts, the people of Kentucky rights, the Bill was placed first and the signed to the three branches of govern who established the Constitution "inherent and inalienable rights" of per ment in Sections 27, 29, 69 and 109 of [Preamble, withheld from the agents of sons were placed at the head of the Bill the Constitution. Section 26 declares un government the right to do certain acts, [1 Debates, 494]. ambiguously that the governmentcannot i.e., the right to infringe on any of the do away with any part of the Bill of limitations found in the Bill of Rights or The language of Section 11 wasnew to Rights nor can it, without amendment to the Constitution. Thus, when approach the Constitution. It was inspired by the the Constitution, modify any sections. ing a problem of constitutional law, you language of the Declaration of Inde This language was copied almost word should assume that the General Assemb pendence and was copied from the Mas for word from the last section of the Bill ly or the Court of Justice have the sachusetts Declarationof Rightsof 1780. of Rights of the Pennsylvania Constitu authority to do what they have done un [1 Debates, 435; 779-7801. The first sen tionof 1790. However,the drafters ofthe less there is a specific prohibition found tence of Section 1 proclaims that all men Kentucky Constitution of 1792 added a in the Bill of Rights or the Constitution. by nature are free and equal and that all second clause to underscore the absence The rule for the executive branch is have certain "inherent and inalienable of governmental authority to undermine somewhat different as we will see in the rights," that is, rights that are not sur the protections of the Bill of Rights. The last section of this article. renderedupon the formation of a govern secondclauseprovides that "all laws con ment. The first such right is the right of traiy thereto, or contrary to this Constitu Assuming that you find a rule that infr enjoying and defending their lives tion, shall be void." This innovation by inges on but does not obliterate a right and liberties." The liberties referred to in the drafters of the Kentucky Constitution found in the Bill of Rights, does the this sentence are, I believe, the natural of 1792 has been retained in each of the "void" language of the lastclause of Sec rights of personal liberty, which include three subsequent constitutions. It has tion 26 mean that the court is bound to the right of personal security There is no been interpreted in a number of cases to declare the act or law unconstitutional opinion of the Kentucky courts saying so mean just what it says, that any acts of and therefore void? The answer is "not directly, but there is a good deal of any branch of thegovernment contrary to always." Although the Bill of Rights ap evidence that this is so. In Common the Bill of Rights are not just illegal or pears to be written as a list of absolutes, wealth v. Campbell, the former Court of

JUNE 1991 / The Advocate 38 Appeals in construing another part of sonal security is premised on the General is used where Americans would say tes Section 1 relied on that portion of Assembly’s determination that society or tify. But it would be a mistake to assume Blackstone’s Commentaries that other individuals will be harmed in the as the former Court of Appeals did in described the absolute rights of men. absence of treatmentor testing. The com Newman v. Stinson that the difference in [117 S.W, at 385]. In anothercase, Smith mon law rule against unconsented to language is meaningless. The history of v. Southern Bell Telephone Co., Ky., 104 treatment also is understandable. The in theprovision shows a distinction. S.W.2d 961, 964 1937, the court dis dividual will not harm othersby refusing cussed the rights protected by the 14th treatment so there is no basis for compell Kentucky’s Section 11 is a close copy of Amendment of the U.S. Constitution. ing it. Rather, in the absence of an emer Section 9 of the Bill of Rights of the The court was of the opinion that the gency, where treatment may be needed Pennsylvania Constitution of 1790. The rights protected there "are those natural simply to preserve life until the in Pennsylvania provision was patterned rights, which include the right of personal dividual can make an informedchoice, a closely on Section 8 of the Virginia Dec liberty, the rightof personal security, and doctor faces a lawsuit for battery if he laration of Rights of 1776. Madison, the the right to acquire and enjoy property." acts without consent. author of the 5th Amendment, had been Vhile this is a construction of the life, on the drafting committee of the 1776 liberty and property clause of the 14th Neither the Supreme Court nor the Declaration with George Mason. [1 Amendment, it seems reasonable that General Assembly have decided that a Schwartz, The Bill of Rights: A these same rights arepart of the liberties coerced blood test is proper in a criminal Documentary History, p. 231 19711. enjoyedby all regardless of the existence case. Nor, under the analysis presented Thus, when Madison drafted the federal of government. Without discussing any here, may they do so legitimately. We are language in 1789, he knew of Mason’s particular constitutional sections, the told by RCr 9.561 that a criminal charge formula for the right. Of more impor court in Chapman v. Commonwealth, either by complaint or indictment is not tance for us, however, is the question of Ky., 172 S.W.2d 228,231 1943 pointed evidence of wrong doing. Rather, a per whether the draftsmen of Kentucky’s outthat theright to live in peace andquiet son charged with a crime is presumed first Bill of Rights knew about Madison’s "is one of the inalienable rights guaran innocent. Thus, there can be no question formula and consciously rejected it. teed to him by the Constitution that no of forfeiture simply by being accused of man or set of men can abridge or deny." a crime. The question is whether under We know that Madison was asked by no That same court noted that so long as a these circumstances a person’s insistence fewer than 14 Kentuckians to draft the person’s enjoymentof his rights does not on maintaining this liberty will "directly first Constitution of Kentucky, but he interfere with the legal rights of others, injure society." I think not. A person with said that he could not because of other he must be protected in his rights. TB may infect others. A mother with duties. He recommended that Kentuck "Within such protected rights are syphilis may infect her baby at the time ians consult a recently published volume freedom from personal assault; freedom of delivery. But a person who refuses to of state constitutions as a source for con from molestation, or intimidation in pur provide a blood sample to theCommon stitutional language. [Coward, Kentucky suing lawful engagements and freedom wealth only makes it more difficult for in the New Republic, p. 111979. Vir from personal assaults or destruction of the Commonwealth to convict. If there is ginia ratified the Federal Bill of Rights property." When Section 11 is read in any injury to society because of the on December 15, 1791, about three and a conjunction with Section 2 which denies failure to cooperate it is only an indirect half months before the opening of the government "absolute and arbitrary oneand certainly not of the magnitude of Danville Convention. Each of power overthe lives, liberty and property the injuries dealt with in the statutes al Kentucky’s 8 counties could send 2 offree men" it seems clear tome that the ready enacted. Section 2 denies the state delegates to the Virginia House of basic right of personal security, which arbitrary powerover the lives, liberty and Delegates, but I can’t say at this point existed first at common law, and which property of its citizens. The fact that it whether any of those delegates served in has been described from the time of would be helpful to thestate to be able to the Kentucky constitutional convention Blacksione to the present as one of the compel blood testing is not a sufficient or whether the members of the constitu "absolute" rights of all persons, must be reason to compel testing in light of these tional convention were aware of the lan protected as one of the basic liberties that constitutional barriers. Section 11 guage of the federal Bill of Rights. What a person does notgive up upon formation reserves to each individual the right of is obvious is that the drafters chose to of a government. Freedom of the person enjoying life and liberty. Where enjoy copy the 1790 Pennsylvania Bill of is a basic liberty along with the right to ment of this right of personal security Rights almost word for word and section vote, freedomof speech, freedom of con does not directly injure others, the state for section. Comparison of these two science, freedom of thought, freedom has no authority to infringe upon it and documents showed 4 instanceswhere the from arbitrary arrest and seizure, and the therefore hasno authority under the Con language differs and 2 instances where right to hold personal property. [Rawls, stitution to enact any rule or statute that Kentucky rejected sections of the Pen A Theory ofJustice, p. 6119711. The would require submission to a blood test nsylvania Bill. However, the 1792 right ofa person to be left alone physical under the circumstancespresented here. provision, which was unnumbered in the ly is a basic liberty and therefore is one 1792 Constitution, is a word for word includedin Section 1. From this point of SECTION 11- THE RIGHT NOT copy of Section 9 of the Pennsylvania view, the common andstatutory law con TO "GIVE EVIDENCE" AGAINST Constitution. cerning coerced medical testing or treat YOURSELF ment makes sense. The 1890 convention modernized the The obvious difference between Section language of Section II and moved the The right not to be subjected to such 11 of Kentucky’s Bill of Rights and the prohibition against giving evidence violation of one’s person is so important 5th Amendment is that Section 11 says against one’s self to a position before the that it is only when the exercise of the that no person shall be compelled to give listing of the public trial rights granted in right of personal security "will directly evidence against himself while the 5th prosecutions by indictment or informa injure society" [Campbell, 117 S.W.2d at Amendment says that theperson shall not tion. By so doing, it appears that the 385] that thestate can intervene and com be a witness against himself. Readers drafters wished to make clear that the pel testing or treatment. In each of the who have watched "Rumpole of the right not to give evidence against one’s statutes listed earlier in this article, the Bailey" on PBS may havenoticed that in self applied to all criminal prosecutions, violation of the individual’s right to per- England the phrase ‘give evidence" often not just those prosecuted by indictment

JUNE l99llTheAdvocate 39 or information. The text and its modifica torian, states the problem well when he clause is important to our problem here tion do not tell much about the reach of states that history does notclearly uphold because it plainly forbids the issuance of the right. not to be compelled to give the Schmerber distinction between tes a search warrant to search a person. evidence against one’s self. timonial and non-testimonial compul sion. He notes that most forms of "non- Section 10 cannot be considered as an In the Debates of 1890, the drafters ac testimonial compulsion" like blood tests authorization for the police or the knowledged the adoption in 1886 of the are of recent origin. However, he notes prosecutor to conduct a search anytime statute now KRS 421.225 which for the that "the common law decisions and the they feel it is "reasonable." Under the first time allowed a criminal defendant, wording of the first state Bill of Rights agency theory of the Constitution dis if he asked, to testify as a witness at his explicitly protected against compelling cussed above, Section 10 is aprohibition trial. At the convention, the Committee anyone to furnish evidence against him-. or limit on the general power of the on the Preamble and Bill of Rights self, not just testimony." [Levy, En government to exercise authority. The reported anew formulafor the protection cyclopediaof the American Constitution, Supreme Court and the General Assemb whichprovided that at trial the defendant p. 1575 1988]. However, a good deal ly under Sections 109 and 29 may "shall not be compelled to testify against more historical research on the American authorize and regulate searches and himself." [I Debates, p. 310]. This practiceconcerning the rightis necessary seizures within the bounds set by Section proposal was defeated. Another amend before a firm conclusion can be reached. 10. Neither the police nor the prosecutor ment proposed to add a provision that "if has the inherent powerto search. [Brown he introduces himself as a witness, he At this point, the best that can be said is v. Barkley, Ky., 628 S.W.2d 616, 623 may be questioned on all matters about that the difference in language between 1982; Commonwealth v. Wetzel, Ky., 2 which he testifies." This also was the federal and state provision, the S.W. 123, 1251886]. Theirpowers are defeated. [1 Debates, 953]. The best prohibition against defendant testimony what the General Assembly and the statement about the meaning was made at the time of adoption, the existence of Supreme Court "choose to give them." by Delegate Bronston, who,in discussing some cases extending the right to the the "old" Bill of Rights said that the production of record books, and The authority to arrest on a warrant protection did not mean only that a man Bronston’s comments about forced "dis comes from RCr 2.04 et seq. and RCr could not be compelled to testify against closure" at the 1890 convention indicate 6.52 et seq., as well as KRS 431.005. As himself, but that "hecannotbe compelled that the phrase "give evidence" means noted in Mash v. Commonwealth, Ky., to disclose any fact which would tend to more than just testimony. The rule for 769 S.W.2d 42,441989, the powerto criminatehimself,on anybodyelse’s trial construing constitutional privileges arrest without a warrant is only what the or anywhereelse." [1 Debates, 9541. To, designed for the security of persons and General Assembly has allowed in KRS "disclose any fact" does not necessarily property is that such provisions should be 431.005. Searches by warrant are mean to testify at a legal proceeding. construed liberally. [Commonwealth v. authorized by RCr 13.10, which specifi Disclosure after all means to expose to O’Harrah, Ky., 262 S.W.2d 385, 389 cally refers to thelimits setby Section 10. view ortomakeknownorpublic. But one 1953]. In plain terms, this means that if The powerto search without a warrant is man’s understanding of Section 11 a decision has to be made on a doubtful defined in the decisions of the appellate voiced at the 1890 convention is notcon proposition, the court should err on the courts that specifically describe the cir clusiveproofoftheextentofSection li’s side of security and liberty for the in cumstances under which warrantless protection. It is necessary therefore to dividual, l’his rule should apply to Sec searches can occur. examine the history of the right. tion 11, and therefore coerced blood tests should be prohibited under the "give The rule in Kentucky is that any search It is obvious that because the defendant evidence" clause of that section. or seizure not authorized by warrant is could not testify at trial, the original unreasonable. [Brent v, Commonwealth, drafters of the phrase did not needa con SECTION 10. UNREASONABLE Ky., 240 S.W, 45 1922; Common stitutional provision toprotect the defen SEARCH AND SEIZURE wealth v,Johnson, Ky., 777 S.W.2d 876, dant from compelled testimony at trial. 880 19891. Section 10 authorizes 2 Two English cases show that the right Section 10, like the federal 4th Amend types of warrants, the first to search any extended beyond testimony at trial. In R. ment, is written in 2 parts.Comparison of place, the second to seize any person or v. Worsenham 1701 and R. v. Mead the 2 parts shows them to be similar, but anything. The plain language of Section 1704, requests for production of books Section 10 was copied from the 1790 10 does not authorize warrants to search made in criminal cases were refused, the Pennsylvania Bill of Rights. The only persons. Court decisions authorize sear first on the ground that the production changes since adoption of Section 10 in ches of theperson, but only in "exigent" required the party to "shew the 1792 have beenchanges of syntax. There circumstances. Exigent circumstances defendant’s evidence" and the second on is not a lot of historical information on are "emergency-like" circumstances that the ground that it would be "to compel this section, but because of a well demand immediate action to prevent es the defendant to produce evidence developed body of case law and the rela cape of a suspect or loss or destruction of against himself in a criminal case." [Mc tive clarity of its language, it is possible evidence, [Black’s Law Dictionary, "ex Nair, The Early Development of the to understand and apply the section igent circumstances,"p.5741990]. Ob Privilege Against Self-Incrimination, 10 without too much danger of viously, a suspect’s DNA is notgoing to Oxford J.Leg.Stud., 66, 83 1990. misunderstanding. change or disappear so this exception Therefore, at the beginning of the 18th cannot be used to justify a coerced blood Century, a rule prohibiting compulsory The section begins with a plain declara sample. The only justification that con productionof aparty’s evidenceand "be tive sentence that the "people shall be ceivably could apply is the "search inci come associated with a general right to secure in their persons, houses, papers dent to arrest" exception. A search inci silence." [McNair, p. 83J. But evidence and possessions from unreasonable dent to a lawful arrest is one made after of such an extension of the rule in search and seizure." The next clause for an arrest and is a long standing exception America is left to vague statements that bids issuance of warrants "to search any to the Section 10 warrant requirement. the state formulation of the right must place, or seize any person on thing," [Commonwealth v, Phillips, Ky., 5 havemeant something different from the without adequate description and S.W.2d 887, 888 1928]. The justifica 5th Amendment statement. Leonard without proof of probable cause given tion for the search incident is that the Levy, a well-known constitutional his- under oath or affirmation. The second person is in the control of the state after

JUNE 1991/The Advocate 40 a determination of probable cause to rules of discovery do not permit a blood theGeneral Assembly, which is charged believe that he has committed a crime. test, but still hold that a police officer is with declaring the public policy of Ken But it is important to note that the cases allowed, in the short period of time be tucky, should make the decision. Even have only allowed a search of the tween arrest and presentation to a judge so, a defendant’s refusal to cooperate in defendant’s person for "articles" or or to a jailer, to force the accused to gathering evidence against himself is not things. [Phillips, at 888-889]. The reason submit to a blood test. It is clear that none the type of direct injury to society that for this limitation no doubt is that the of the exceptions to Section 10 permit justifies the enactment of other statutes drafters of Section 10 and the members such a test. that we have looked at in this article. of the 1890 Convention no more thought of the possibility of blood tests as a CONCLUSION As to the applicability of Section 11, 1 method of crime detection or evidence think it is clear that a good deal more than they thought a man could go to the The conventional wisdom is that the historical research is necessary. Many moon. It simply wasnot foreseen. But the Commonwealth wins blood test motions. sources hint that Section 11 covers a Constitution must be applied as it is writ However, in this article we have seen that broader range than the 5th Amendment, ten. Thewarrant requirement and theun this commonly held assumption rests on but nobody has found conclusive reasonable search and seizure require a weak foundation. The problem evidence that this is so. This is a question ment of Section 10 must not be seen as presented here shows the necessity of that lawyers in Kentucky could under separate considerations. The "un covering every base when attacking an take to answer. reasonable search" clause, as we have established evidence practice. Each part seen in the beginning of this section, does of the argument supports the others, and Finally, I think it is clear that Section 10 not authorize inventive ways to get the combination of all parts shows that has little to do with the question of blood around the warrant clause. Where emer the practice is not justified, either under tests for developing evidence of guilt. It gency conditions are shown, the police the law or the Constitution. Although it is only through the search incident to are allowed to act to protect themselves, is difficult to find out much about the arrest exception that theCommonwealth to detain suspects and to prevent loss or original intent of the drafters of the Ken could hope to justify a blood test. But in destruction of evidence. No more is tucky Constitution, it is possible by ex light of the almost universal prohibitions necessary and no more has been amining the history and development of against such tests in other stages of a authorized by any decision of the Ken the court system and of various proce criminal prosecution, the search incident tucky Courts. A valid arrest does not dural practices to make good inferences mustbe limited to the outsideof a person. justify violation of a defendant’s right of as to what was considered proper. personal security. An arrest does not J. DAVID NIEHAUS amount to a forfeiture of the right. It At a minimum there must be a positive Deputy Appellate Defender would be bizarre in the extreme for the enactment of law by the General As Jefferson District Public Defender law to provide I that no warrant may sembly authorizing blood tests for the 200 Civic Plaza authorize a blood test, 2 that once the purpose of DNA identification for such 719 West Jefferson Street defendant is lodged in jail RCr 3.02 tests to be lawful. Invasion of the right of Louisville, Kentucky 40202 prohibits any blood test, and 3 that the personal security is one so grave that only 502625-3800

STAFF CHANGES

RESIGNATIONS

SHELLY COPE formerly aparalegal with the Eddyville Post-Conviction Of fice, resigned on 4/1591 to become an assistant to Judge David Buckingham, Marshall County.

JIM CHAMBLISS, formerly an As BARBARA SUTHERLAND joined sistant Public Advocate with the the Department’s Administrative Morehead office since 5/16/90 Division on April 16, 1991 as DPA resigned on 5/10/91 to join the Garfield Law Librarian. She is a 1977 graduate County Attorney’s Office, 109 8th of the University of Kentucky School Street, Suite 300, Glenwood Springs, of Law and received her Master of Colorado 81601 303 945-7943 Library Science at Texas University in 1990.

JUNE1991 /TheAdvocate4l ALTERNATE SENTENCING Restorative Justice at Work

The film "Burden of Justice," funded by NATIONAL BURDEN OF JUSTICE the Edna McConnell Clark Foundation, CONFERENCE ON with David Ellis, Emmy award winning SENTENCING ADVOCACY To sentence an offender to a punishment Ellis Productions, tracks thecases of two which is appropriate to him and the young men in the criminal justice system public is a burden of the criminal justice who are diverted from prison with an On April 19 and 20, 1991, Kentucky system. How one state, Alabama, has alternative sentence. SentencingSpecialists attended thePrac dealt with this burden is the subject of a ticing Law Institute’s National Con film shown at the conferencetitled "Bur With permission this film along with it’s ference on Sentencing Advocacy. The den of Justice," Alabama, a state with shortened version is available on loan for conference agenda addressed the many demographics similar to Kentucky, is your viewing. This is an opportunity to different sentencing issues which judges facing the same prison overcrowding learn how an alternative sentence can face every day: how to effectively sen problem. Alabama, likeKentucky, is also help reduce the prison overcrowding tence the drug offender, the learning dis a state with limited resources and a prison crisis in Kentucky while effectively and abled offender, a battered woman, a dis budget which could bankrupt the state. fairly punishing offenders. advantaged offender all while having to deal with mandatory minimum senten The film "Burden ofJustice" takes aclose To borrow a copy of the film, contact ces,public opinion and the needto punish look at alternative sentencing as one way Barbara Sutherland, Librarian, Depart appropriately. to punish non-violent criminals without ment of Public Advocacy, Perimeter sending them to prison. Alternative sen Park West, 1264 Louisville Road, tencing is also one of the options being Frankfort, Kentucky 4060 1.Phone 502 explored by the Kentucky Legislative 564-8006. SECTION 7, Task Force on Sentencing and Sentenc KENTUCKY CONSTITUTION ingPractices HB 123 chaired by Repre If you have any questions contact David The ancient mode of trial by jury sentative Bill Lear, 79th District. Norat at the above address or phone. shall be held sacred, and the right thereofremain inviolate,subjectto such modifications as may be authorized by this Constitution,

This regular Advocate column feature1 information about sentencing alterna tivesto prison. Reprinted by permission of Jim Warren and The Lexington Herald-Leader

JUNE 1991 / The Advocate 42 No document has more meaning to the American Way of Life than does Our Bill of Rights.

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Q. Who protects and advances the individual liberties guaranteed by our Bill of Rights? A. Kentucky Public Defenders which represent more than 70,000 fellow Kentucky citizens charged with committing a crime but too poor to hire a lawyer.

Department of Public Advocacy Jefferson County District Public Defender Fayette County Legal Aid 1264 Louisville Road 200 Civic Plaza lii Church Street Frankfort, KY 4060! 719 West Jefferson Street Lexington, KY 40507 502564-8006 Louisville, KY 40202 606 253-0593 502 625-3800

We’re looking for a few more exceptional individual liberty litigators.

Celebrating the 200th anniversary of our U.S. Bill ofRights on December 15, 1991 Celebrating the 100th anniversary ofour KY Bill ofRights on September 28, 1991

JUNE 1991 / The Advocate 43 THE PENAL CODE’S DISINTEGRATION

JAY LAMBERT

1976’S PROMISE FEEDING FRENZY OF TIS Commonwealth Attorney’s Office, politically impractical. Another option, The advent of the Kentucky Penal Code The so called "Truth-In-Sentencing" blaming "the system" for what the in 1976 supposedly heralded the arrival Statute KRS 532.055 provides the prosecution and public generally viewed of a new, enlightened approach to the premiere example of how the interplay as a debacle, however, shifted the focus dispensation of justice in the Common between these factors produces the kind of the debate away from whether the jury wealth. This new framework constituted ofspecial legislation that undermines the rendered an appropriate sentence on the a long overdue response to the bewilder unified approach envisioned with the factsof theparticular case. Theemphasis ing patchwork of prior statutes and pro adoption of the Code. Truth-In-Sentenc quickly centered on methods to prevent cedures in place up to that time. A ing grew out of one of the most highly repetition of such a perceived miscar uniformsystem ofclassification and sen publicized crimes in the history of the riage of justice with a defendant’s tencing administered by judges vested Commonwealth. The kidnapping, rob criminal history and paroleeligibility be with wide discretion regarding both the bery, sodomizing and murdering of two coming the prixnaiy scapegoats for what appropriateness and length of incarcera white teenagers in an execution style supporters of "reform" portrayed as a sys tion provided for consistent and rational shooting by two black defendants in Jef tem run amok. sentencing. fersonCounty resultedin understandable public outrage and almost daily media Had the controversy erupted at any other DIMINUTION OF THE PROMISE coverage. The failure of the prosecution time, it may well have dissipated after a to obtain a death verdict against one of few months. Unfortunately, it coincided The tantalizing promise held out by the theco-defendants and the subsequent at with the legislative session. Faced with adoption of the Code fifteen years ago, tempts by various interested parties to an array of victim’s rights advocates, however, has been substantially assign blame in the face of unprece press conferences, grieving parents, law diminished by a combination of factors. dented publicity planted the seed for the enforcement officials smelling blood and The legislature habitually panders to the legislation. an enraged citizenry all fueled by apress whims of specialinterest groups to whom firmly locked into hyperdrive, the legis the terms "probation," "parole," and "dis lature jumped into the previously men cretion" form an Unholy Trinity per tioned feedingfrenzy with reckless aban petuated by a judiciary perceived as don, The result was the now infamous liberal devils in black robes. The kind of Truth-In-Sentencing Statute. special legislation fostered by such in tense and unrelenting political pressure POLICY BY PANIC then nuzzles against a judiciary consis tently less vigilant in maintaining its own Although the extent of the damage in independence. flicted on the criminal justice system of the Commonwealth by this ill conceived CODE DOOMED TO DEATH piece of legislation may not manifest it self fully for years, the process by which The confluence of these factors results in it became law provides immediate les a legislative feeding frenzy with our sons in how the Penal Code can disin clients as the main course which in turn tegrate in the face of piecemeal legisla provides a statutory scheme that tion. produces as many injustices as it once purported to cure and ultimately dooms First, it illustrates the immense damage theentire structure to death by a thousand that one piece of special legislation can cuts andtheoccasionalhatchet blow i.e., IS KENTUCKY’S PENAL CODE inflict on the unified system set forth in Truth-In-Sentencing. Thedisintegration BECOMING A HOUSE OF the Code when the motivation rests in of the Penal Code’s unified approach to CARDS? expediency and does not allow for calm criminal law in the Commonwealth reflection from all quarters. This single originates in substantial part from an in The possibility of blaming jurors or the statute severely undermined the concept creasingly vocal electorate’s fear of court for an unpopular sentence was not of a punishment appropriate to the facts crime accompanied by the realization of a realisticoption. Acknowledging the ex of a case instead of a defendant’s past or various legislators that they lose few, if istence of a viable defense or, conversely, his likelihood ofparole. The sound exer any, votes by supporting virtually any conceding any shortcoming in the cise of judicial discretion in the structur piece oflegislation associated with a "get prosecution was not only unpalatable ing of concurrent or consecutive senten tough on crim" policy. but, in light ofthe subsequent decision of ces is similarly impacted. In the real the prosecutor to seek election to the world, few judges often ignore a jury’s

JUNE 1991 [TheAdvocate 44 "recommendation" of consecutive sen pendence of the judiciary recognized in It takes no visionary to foretell that thenew tences. section 109 of the Kentucky Constitution sentencing procedure will I produce sen tences that are, in many cases, unduly harsh which states: and abusive, 2 fatally overload an already Maintaining thekind of unified approach overcrowded prison system, and 3 exacer to classification and sentencing found in The judicial power of the Commonwealth bate the problem of disparate sentencing. the Codepresupposes therealization that shall be vested exclusively in one Court of The impending calamity to our sentencing altering one aspect of the system in Justice which shall be divided into a system it will be no less is not just likely, Supreme Court, a Court of Appeals, a trial inevitable. It will take years of effort to evitably reverberates throughout the en court of general jurisdiction known as the it is tire structure. Such legislation, hastily correct themischief we have done this day, Circuit Court, and a trial court of Limited if indeed correction will ever be possible. produced in response to virtual panic by jurisdiction known as the District Court. and given due The Majority opines that we ‘reserve the the public not considera The Court shall constitute a unified judicial right to correct in the future’ any ‘abuses or tion by the legislature, ignores that system for operation and administration. correction will come too lit The impeachment powers of the general as injustices,’ but reality. tle and too late for those who suffer in the sembly shall remain inviolate. meantime. The second lesson provided by the Id. at 799. method of adoption of this legislation Section 116 more specifically states: rests withthe mannerin which the media Partial alleviation of the damage to the will inevitably portray competing inter TheSupreme Court shall have the powerto structure and the Penal Code prescriberules governing its appellate juiis sentencing ests to the public. The story behind diction and rules of practice and procedure in general was still possible had the ap destruction of the unified approach of the in the Court of Justice. pellate courts subsequently followed Code by such legislation and the conse through on the promise of the Supreme quent, albeit relatively gradual, erosion The Kentucky judiciary is, in theory, Court to correct injustices ott a case by of the ability of accused citizens to completely independent of the legisla case basis. Unfortunately, when oppor defend themselves inevitably pales in ture. In practice, thejudiciary’s deferen tunities to reign in some of the negative comparison to the contrary position tial treatment of statutes that do violence consequences ofthe statutepresent them widely circulated by themedia and sym to the notion of comprehensiveness selves, the courts generally fail to seize bolized by grieving families and tempered by the soundexercise ofdiscre the opportunity. videotapes of bloody crime scenes. tion underlying the Code allows the legislature to run roughshod over the Even an incomplete listing of the Piecemeal disintegration of the code, courts. decisions establishes the point. Logan v. judges hampered by a lack of discretion, Commonwealth, Ky.App., 785 S.W.2d and sentences based on factors other than The legislature, not the judiciary, now 497 1989 allows the use of a "prior" the facts of a case do not fit into neat ten decrees the manner in which the courts convictionduring a penalty phase even if secondsound bites. A failure by the press conduct jury trials including, but not the conviction occurred after the crime to incorporate deep, studied reflection limited to, the admissibility of previously for which the defendant is currently into their reports instead of going for the prohibited evidence. KRS 532.055. being tried. Hill v. Commonwealth, cheap shot not only allows but implicitly The legislature, not the judiciary, now Ky.App., 779 S.W.2d 2301989 allows encourages the kind of knee-jerk reac mandatesthe instances inwhich the court the Commonwealth to prove a prior mis tions by the legislature typified by many may not consider probation for a multi demeanor conviction for sentencing pur of these statutes and increases the tude of offenses centering around the in poses evenin the absenceof a valid judg likelihood that such a procedure will be volvement of firearms and most sexual ment. Commonwealth v, Hubbard, Ky., come the norm. offenses. KRS 533.060 and KRS 777 S,W.2d 882 1989 endorses the 532.045. The legislature, not the right of the trial judge subsequent to a Doubters of this hypothesis would do judiciary, now establishes the consecu hung jury to impose a sentence beyond well to revisit this issue the first time a tive assessment of sentences. KRS the statutory minimum. Commonwealth seriously mentally retarded person per 532.110 and 533.060. v. Bass, Ky., 777 S.W.2d 233 1989 petrates an especiallywell publicized and precludes the use by the defendant of the heinous murder. The severity of the in These statutes, whether examined singly plea bargainagreement of a co-defendant evitable legislative and media assaults on or in combination, severely restrict the for mitigation during the sentencing the recently enacted prohibition against ability of a court to exercise its discretion phase. Melson v, Commonwealth, Ky., executing the retarded KRS 532.140 in a given case in assessing the con 772 S,W.2d 631 1989 allows the use of will illustrate only too well the inherent stitutionality of a procedure, the admis a prior conviction for sentencing pur problems associated with enacting legis sibility of evidence or the appropriate poses even while being litigated by way lation precipitated by fear and one-sided ness of a sentence. of collateral attack. Lemon v. Conunon media coverage. wealth, Ky.App., 760 S.W.2d 94 1988 COURT’S HOLLOW PROMISE endorses the combining of the persistent JUDICIAL DEPENDENCE felony offender and penalty phases of a Commonwealth v. Reneer, Ky., 734 trial. Ballard v, Commonwealth, Ky., 743 Given the degree of encroachment on S.W.2d 794 1987 best typifies thejudi S.W,2d 211988 applies the statute to matters traditionally within the discre cial reaction toward this threat to an in crimes committed before its effective tion of trial courts coupled with often dependent judiciary. The challenging of date. Although there are occasional ex sloppy draftsmanshipof the statutes, one the entire Truth-In-Sentencing scheme in ceptions [See Boone v, Commonwealth, would expect intense scrutiny by appel Reneer resulted in the court upholding Ky., 780 S.W.2d 615 1989 recognizing late courts. Such attention has not, how the statute while recognizing that the in a defendant’s right to introduce parole ever, been the case. herent encroachment on the prerogatives eligibility in mitigationj, the general of the judiciary was clearly unconstitu trend of the appellate courts points unerr On issues such as Truth-In-Sentencing,. tional. Although the statute was upheld ingly to a construction of the statute in a prohibitions on probation and the man on grounds of "comity," Justice Leibson, manner contrary to the interests of the datory nature of running certain senten in his dissenting opinion, recognized the defendant. ces consecutively, appellate courts have broad impact of the decision when he consistentlyrefused to exercise the mdc- noted:

JUNE I99liThe Advocate 45 When the appellate courts allow the in troductionofconvictions whichoccurred after the crime currently being tried, and PRESENTENCE retroactive application of the statute, the Court’s promise in Reneer, supra, to prevent injustices on a case by case basis INTERVIEWS: rings hollow.

During the years subsequent to the adop AN UPDATE tion of the code, thejudiciary has consis tently allowed thelegislature to dictate to them how to conduct trials, what evidence to admit, whether to consider probation and whether to run sentences consecutively. Thebattle for judicial in dependence and adherence to the under lying principals of the Penal Code has been underway for the last fifteen years. The judiciary is loosing the battle while, The importance of an attorney’s presence at the presentencing hearing was detailed in at best, firing only an occasional stray Your Client Needs You at Presentence Interviews!, April, 1991 Advocate Vol. 13, No. shot. 3 at 63. We update that article.

LEGISLATURE AND COURT A recent case from the U.S. Court of Appeals, Sixth Circuit illustrates the extreme CREATE DARK FUTURE importance of accompanying one’s client to their presentence interview. In UnitedStat es v. Davis, 919 F.2d 11816th Cir. 1990, the defendant made incriminating statements As long as the legislature continues to during his presentence interview which lengthened his potential sentence by more than allow itself to be simultaneously in three years. The court held that these statements were not made in violation of the timidated andpropelled by special inter defendant’s rights against self-incrimination. Id. at 1186. est groups driven by fear and bent on revenge without any thought to the After the defendant pled guilty to conspiracy to distribute cocaine, he was asked to widespread effects of special legislation participatein apresentence interview. The defendant hadbeen informedby the sentencing on the overall policy and philosophy of court of both his fifth amendment privilege against self-incrimination and his "right to the Code, we will witness the continued have counsel represent [himj at all stages of any criminal proceeding." Id. at 1184. The destruction of our client’s rights. defendant’s attorney was invited to attend the interview, but declined. Id.

When this effect combines with a The Sixth Circuit noted that had the attorney questioned the defendant’s ability to give judiciary which, despite promises to the reliable answers to the probation officer’s questions, the attorney would probably have / contrary, contents itself with letting its chosen to attend the interview, The court stated further: own independence wither on the vine, there may well be darker days ahead. We are troubled, nonetheless, by the lawyer’s decision not to attend. If this had been a civil case, onewonders whetherthe lawyer would havelet his client be deposed without JAY LAMBERT counsel being present. Assistant District Defender Office of the Jefferson The defendant was thus interviewed without the benefit of counsel, andmade statements District Public Defender with respect to the quantity of cocaine involved. He stated that the amount of cocaine was 200 Civic Plaza higher than that which the government could have proven at trial. Pursuant to the Federal 719 West Jefferson Street SentencingGuidelines, the probation officer’s findings changed the guideline range from Louisville, Kentucky 40202 121-151 months to 188-235 months. Id. at 1184-85. 502 625-3800 The court found that the defendant’s statements were wholly voluntary and reliable Jay is a 1983 UK graduate. He has been despite defendant’s psychiatric disorder. Id. at 1186. with the Louiile office for seven years. He is currently in the office’s Major Litiga On appeal, defense counsel argued that the defendant made these statements falsely in cionSection.He isa member ofKACDL and an attempt to mitigate his sentence by showing an acceptance of responsibility. Instead, NACDL. the absence of counsel at the presentence interview resulted in a substantial increase in the defendant’s sentence. This is only one example of the terriblepotential effects of allowing one’s client to attend the presentence interview without the protection and advice of counsel. The most tragic CORRECTION aspectof this case is how easily this increased sentence could have been avoided. HAP HOULIHAN In the last issue of theAdvocaze on the DPA Law Clerk charton page 47 it should read: There Frarikfort were a total of 66 violations alleged in the 39 complaints, not 309 complaints.

JUNE 1991/The Advocate 46 Legislative Highlights

LISA DAVIS

On Friday, January 1991 Extraordinary Session Statistics HOUSE BILL 11: 11, 1991, the Gover DUI nor of this Common wealth issued a Senate House Total This bill creates andamends Bills Introduced 13 22 35 various sections of KRS Proclamation, con Resolutions Introduced vening the Kentucky 85 141 226 Chapter 189A relating to Bills Passed 4 8 12 driving under the influence. General Assembly in Resolutions Passed - - *214 Extraordinary S es Became Law 4 8 12 With the passage of this sion to begin on Mon Concurrent Resolutions legislation came many day, January14, 1991 that became law 6 revisions in Kentucky’s cur at 12:00 noon EST. rent DUL statutes. There Fortunately, only two *Includes seven Concurrent Resolutions that passed both Houses. were changes made in court of the subjects specif procedures and functions, as ically set out to be well as in the penalty areas considered during of the law. this Session will have an impact on the his/her sentence before becoming Department of Public Advocacy. eligible for parole. Illegal per se was a major stumbling Legislation was enacted imposing tough One can look upon this as being legisla stone in the passage of this legislation. er sanctions on and revoking privileges tion that might enable a criminal defense The original bill, as introduced, encom for motorists who drive while under the attorney to argue for the jury to sentence passed not only illegal per se but also influence of alcoholic beverages. I-louse a client accused of a capital offense to a administrativeperSe. The administrative Bill 11 The amendment of KRS term of years instead of death. If the perse part ofthe bill was removed before 439.3401 to add capital offenses to those attorney points out that the defendant, if the final bill was enacted, Illegal per se offenses requiring certain offenders to sentenced to 200 years, will not be presumes a person to be driving under the serve at least 50% oftheir sentences prior eligible for parole for 100 years, thus influence if their BAC blood alcohol to being eligible for parole was enacted keepinghim imprisoned for the rest ofhis content is 0.10 or above. If his/her BAC through House Bill 7. This is in response life, the juror who might notnecessarily is 0,05 but less than 0,10 then the of to the recently decided Kentucky think he deserves to die but wants to be fender is not necessarily presumed to be Supreme Court case of Offuti v. Com sure that he is never released, could pos driving under the influence, but the BAC monwealth, 799 S.W.2d 815 1990. sibly be persuaded to sentence him to a can be used in conjunction with other term of years instead of death. evidence i.e. field sobriety tests to House Bill 7, relating to capital sentenc prove guilt. ingprocedures, has an Emergencyclause Mike Williams, Chief of the Depart attached and was effective February 15, ment’s Capital Trial Unit, points out that First through third offense fines and im 1991 upon Governor Wilkinson’s signa "Subsection 3 would still permit incar prisonment requirements remain un ture. The Attorney General’s Office has ceration for an offender who has com changed but fourth offense, under the not yet issued an effectivedate for House mitted an offense less than death. If he new law, is a Class D Felony. As is Bill 11, relating to driving under the in has committed a rape or sodomy in the presently law, second and third offense fluence. The following is a briefdescrip first degree, and if given 100 years, he prison terms cannot be probated, and if tion of House Bills7 and 11 as they relate would not be eligible for parole for 50; convicted of fourthoffense DUI, themin to this office. however, the same individual who kills imum term of imprisonment is 120 days. his victim and receives a life sentence Current law does not allow the use of HOUSE BILL 7: would be eligible for parole in 12 years." prior DU! convictions in other states to Parole for Violent Offenders count as prior offenses in Kentucky. In Offuti v, Commonwealth, the Ken Once this law takes effect, prior offenses This bill amends KRS 439.3401 relating tucky Supreme Court tried to clarify this include all convictions in this or any to parolefor violentoffenders. Upon pas inconsistency problem thus prompting other state within a five year period. The sage of this legislation, capital offenders, this legislation. However, as can be seen, five year period is calculated from the sentenced to a term of years, are con from the death penalty defense attorney’s dates on which the offenses occurred for sidered violent offenders and are re viewpoint this was not entirely ac which the judgments of conviction were quired to serve 50% of their sentence complished by this Act. entered. before becoming eligible for parole. A violent offender convicted of a capital Driver’s license suspension periods in offense who receives a life sentence will creased to 90 days for first offense, 12 be required to serve twelve years of months for second offense, 24 months for third offense, and 60 months for fourth

JUNE 1991/ TheAdvocate 47 offense. Under this legislation, pretrial The prosecution is prohibited from In addition to any other penalties for a suspension of the license of a person amending DUI charges in cases where violation of this statute the court is re charged with DUI is required. At ar the defendant’s BAC is 0.10 or above quired to order the defendant to par raignment, the court will suspend the unless there is scientific evidence which ticipate in counselling and! or treatment. license of a person whose BAC is 0.10 or shows that the test results are invalid. In The Cabinet for Human Resources will above, a person who is under the age of these such cases the prosecution must regulate the treatment facilities and the 21, or a personwho has prior convictions state, on the record, the reasons for facilities will report to the court. for DUI. The license is also suspended amending the charges. for refusing to take the chemical test i.e. Anassessment of thedefendant’s alcohol breathalyzer or blood test. Any prior The court clerkis required to report to the or substance abuse problems must be per refusals will also result in pretrial suspen Administrative Office of the Court formed at the start of the program. Upon sion. AOC within five days of theend of each written report to thecourt by theprogram quarter all DUI cases which have not administrator that thedefendant hascom A person whose license has been resulted in a final ruling within 90 days pleted the program, based upon the as suspended pretrial can make a motion for of the commission of the offense. The sessment, the defendant may be released judicial review of such suspension. Once AOC will then forward the list to the from the program prior to the expiration this motion is made, the court has 30 days Attorney General and the Chief Justice. of the90 day period. to conduct a hearing on the matter. At this The AG can then eitherappoint a special hearing the court must determinethat the prosecutorto aid in the prosecutionof the Once the court orders a defendant to en accused was arrested for DUI, that the remaining cases or the Chief Justice will roll in the program the enrollment must arresting officer had reasonable grounds dispose ofthe case in an appropriate man be accomplished within ten days of the to believe that the person was inphysical ner. entry of judgment of conviction. Once control ofthe vehicle, that the officerhad enrolled, theprogram administratormust probable cause to believethe person was With this legislation comes the invention transmit to the court a certificate of en DUI, or that the accused is under 21 years of a new creature coined the "hardship rollment, within five working days. of age. license". The district court upon applica tion of the defendant has the sole juris If the court does not receive notice of Pretrial suspensionof thelicenserequires diction over these licenses. The county enrollment within 20 days ofconviction, immediate surrender of the license to the attorney will review the applications and the court will hold a show cause hearing. Circuit Court Clerk. lithe defendantdoes can object to its issuance. There is, of if the defendant enrolls but drops out or not have a license in his possession, and course, afee of up to $200 attached to this does not complete the program, the pro it has not already been suspended for permit. gram administrator will transmit this in other reasons, he is to remain in custody formation to the court and the court will until the license is produced. If the A hardship license can be issued to a first again hold a show cause hearing. Upon license is lost, the Sheriff must transport time offender after a HARD 30-day receipt of notice that the defendant has thedefendant to theoffice of theCounty license suspension for purposes set out failed to complete or attend the program Court Clerk so that he may be issued a by this legislation. A hardship license can thecourt will reinstateany ofthe original duplicate license, then returned so that he be issued in order for the defendant to penalties which hadbeen withheld pend can surrender the license to the Circuit continue employment, attend school, ing completion of the program. Court Clerk. The Clerk is to notify the receive needed medical treatment or at Transportation Cabinet of the suspen tend court ordered counseling or treat The program administrator is required to sion. ment. Before granting such licenses, the notify the court of the defendant’s com defendant must provide the court with pletion of the program. Failure to com The court must order the retum of a proof of valid insurance and provide plete the program or pay the amount revoked license upon the expiration of sworn, written statements from the specified by the court for the program the suspension time or in cases where an defendant’s employer, teacher, doctor, or will constitute contempt. In this case the acquittal results and refusing the chemi thedirector of the facility that is provid court will reinstitute all penalties which cal testRCT is notinvolved. Allpretrial ing treatment or counselling as to the were previously imposed but suspended license suspension time is credited need for the permit. Persons are under or delayed pending completion of the towards the final suspension timeresult oath and are subject to the penalties of program. ing from a conviction. perjury whenmaking these sworn written statements. These permits cannot be is LISA DAVIS Persons refusing the chemical test RCT sued is there was a refusal to submit to Paralegal currently are required to come before a the chemical test RCT. Capital Resource Center hearing officer for the Transportation Frankfort Cabinet. A determination is then made as The Transportation Cabinet will issue the 502 564-3948 to whether the refusal is valid. This pro hardship license, upon order of the court, cedure has been transferred to the court. setting forth times, places, purposes, etc. The suspension times for RCT first of that the person is allowed to drive. The fense is six months, second offense 18 defendant must have the permit in his months, third offense 36 months, and possession at all times during whichhe is FIRST DEGREE ESCAPE fourth offense 60 months. operating, or authorized to operate, a The Michie official edition of the KY motor vehicle. Transportation will also Revised Statutes contains a typographical A defendant may petition the court to issue a decal to be placed in the rear error in KRS 520.020 2on page377 ofthe order prior convictions invalid andnot to window of the vehicle to be operated by 1990 replacement for Volume 17. The be used for enhancement purposes. The the defendant. Failure to display the penalty for escape in the first degree should court should abide by the standards set decal is a Class B misdemeanor. Any beaClassCfelony,nol aCtassAfelonyas out in Boykin v. Alabama, 395 U.S. 238 violations of these stipulations will result shown. See 1974 Kentucky Acts, Ch.406, 1969 when determining validity of in immediate suspension for the original Section 170. Michie will be correcting this prior convictions. time periodimposed by thecourt plus six error in the next issue of its KRS Advance months. Service.

JUNE 1991/The Advocate48 Americans Behind Bars: A Comparison ofInternational Rates ofIncarceration

OVERVIEW this issue. As will be seen, the results in bined figures for prison and jail popula both parts of this report indicate the tions excluding the small number of In 1979, a criminal justice report was serious nature of criminal justice juveniles held in jails and a small "over released which has been often cited for problems in the United States. lap" in the prison and jail counts; see its striking conclusions. That report, "In Methodology to obtain an overall num ternational Rates of Imprisonment," is MAJOR FINDINGS: berof inmates. The number of prisoners sued by the National Council on Crime RATES OF INCARCERATION in the Soviet Union is taken from recent and Delinquency NCCD, documented published reports, which are consistent that the United States’ rate of incarcera Comparing international rates of incar with other oservations over the past tion was third in the industrialized world cerationis problematic. Crime rates, and several years. - behind on’y South Africa and the rates of violent crime in particular, vary Soviet Union. Despite a considerable greatly from one country to another. Previous reports documenting the num amount of attention to the report in the Criminal justice systems are also unique ber of prisoners in South Africa have criminal justice community, there was to each country, and methods of punish been consistent, but have only included little policymaker response to its find ment and control vary from one society the number o persons held in South ings. to another. lit most areas of the United Africa proper. This figure excludes the States, for instance, we maintain asystem number of prisoners held in the four "in This report provides a new look at some of jails, for persons awaiting trial and dependent" homelands of South Africa of the issues raised in the NCCD report. serving short sentences, and a prison sys - Bophuthatswana, Ciskei, Transkei, We do this for two reasons. First, the tem which is generally used for offenders and Venda. These homelands, though, NCCD report, useful as it was, was serving sentences of a year or more. In are recognized by no nation outside hampered by the unavailability of com most other nations, there is only a single South Africa, and have been clearly plete data in some areas. Most sig prison system, both for convicted and shown to be appendages of the South nificantly, the prison population for the unconvicted persons. Most societies African government. Therefore, an ac Soviet Union was estimated to be one make use of mental institutions to some curate portrayal of the incarcerated million at the time, by all measures just a extent for persons convicted of crimes, population in South Africa needs to in rough approximation. Due to the greater although these persons may or may not clude this population. Although informa openness in the Soviet Union, we now be counted as "prisoners" in official tion on prison systems in the homelands have far more accurate figures on the prison counts. And, in apartheid South is difficult to obtain, we have used the number of its prisoners. In this report, we Africa, restrictions on civil liberties and available information to project an es also extend the analysis of the number of personal freedom for thecountry’s Black timate of these figures. prisoners in South Africa beyond what population are ever present, whether in most sources have generally described. prison or not. The major findings of our study, as seen in Tables 1-3, are as follows: The second reason for this updated Bearing this caution in mind, though, we analysis of international rates of incar think it useful to analyze these interna The United States now has the world’s ceration is that much has changed in the tional data. Although the crime rates and highest known rate of incarceration, world since 1981. Of particular interest criminal justice policies creating each with 426 prisonersper 100,000 popula here is that the criminal justice policies country’sprison population are different, tion. South Africa is second in the of these three nations have taken very the comparison can help to place in world with a rate of 333 per 100,000, different directions, with significant con perspective our nation’s approach to is and theSoviet Union third with 268 per sequences for rates of imprisonment. sues of crime and punishment. While the 100,000 population. Table 1. threenations under study have vastlydif After examining overall rates of incar ferent political and economic systems, Black males in the United states are ceration, we then look at a subset of the this reportdemonstrates that the extent of incarcerated at a rate four times that of population in the United States and South criminal justice control in a society can Black males in South Africa, 3,109 per Africa - Black males. As we noted in not necessarily be predicted by the de 100,000, compared to 729 per 100,000. our earlier report, "Young Black Men gree to which that society is dedicated to Table 2. and the Criminal Justice System: A democracy and human rights. Growing National Problem," nearly one The total cost of incarcerating themore in four Black men in the age group 20-29 Our analysis examines the number of than one million Americans in prisons is under thecontrol ofthe criminaljustice incarcerated adults in each country, both andjails is now $16 billion a year. The system -n prison or jail, on probation those awaiting trial and sentenced of cost of incarcerating the estimated or parole. In order to understand the fenders, and then divides this figure by 454,724 Black nle inmates is almost situation of Black males more fully, we the country’s population to obtain an $7 billion a year. developed this international comparison overall rate of incarceration. For the to provide anothercontext for examining United States, we have used the com

JUNE 1991 / The Advocate 49 Although this study only examines THE UNITED STATES AS The South African prison population has threecountries in detail, it is clear from NUMBER ONE: remained the most stable of these three other reports that no other nation for CAUSES AND CONSEQUENCES countries over the past decade, rising which incarceration rates are known only about 11% during this period, from even approaches these levels. Rates of Again recognizing that international an average daily population of 100,677 incarceration for western Europe are comparisons are difficult, we can discern in 1979-80 to 111,557 in 188-89 ex generally in the range of 35-120 per general trends of the past decade in these cluding the four homelands. We do not 100,000, and for most countries in three nations which have placed the have sufficient information available to Asia, in the range of 21-140 per United States in the unenviable position determine the causes of this relatively 100,000.6 Table 3. of world leadership in incarceration. modest increase.

Table 1 Table 2 International Rates of Incarceration Black Males Rate of Incarceration

Nation Population Inmate Incarceration Nation Black Male BlackMale incarceratio Population Rate per Population Inmates Rate 100,000 per 100,000 US 248,251,000 1,057,875 426 US 14,625,000 454,724 3,109 S. Africa 35,978,284 119,692 333 S.Union 287,015,000 769,000 268 S.Africa 15,050,642 109,739 729

Table 3 Incarceration Rates for the US, S. Africa, and the Soviet Union in comparison to Europe and Asia

United States 426

South Africa - 333 Soviet Union 268

Hungary 196

Malaysia 126

Northern Ireland 120

HongKong 118

Poland 106

New Zealand 100

United Kingdom 97

Turkey 96

Portugal 83 France 81

Austria 77

Spain 76

Switzerland 73

Australia 72 Denmark 68 RATES OF INCARCERATION PER 100,000 POPULA TION Italy 60 Japan 45 Netherlands 40 Source: Penal Reform Jinemauonal, usmg data from the Council of Europe and the Australian Institute of Criminology. Philippines 22

JUNE 1991/TheAdvocate 50 In the Soviet Union, the prison popula criminal justice policies of the past lice policies have contributed to the in tion has declined dramaticallyduring the decade, rather than a direct consequence crease in incarceration in thepast decade. past decade. Estimates of the prison of rising crime. Many criminal justice population ten years ago range from one observers now believe that prison AFRICAN-AMERICAN MALES: million in the NCCD report to 1.6 mil populations are very much a function of AN ENDANGERED SPECIES? lion.g The drop in the incarcerated policy choices. population is generally considered to be The equally shocking conclusion of this a result of thechanging political climate Looking at the Soviet Union, for ex report is that African-American males in in theSoviet Union, leading to therelease ample, we have seen how a decision by a the U.S. are locked up at a rate fourtimes of many political prisoners, 9d anines reform government to release many greater than their counterparts in South ties for many minor offenders. Similar political prisoners hasresulted in virtual Africa. We and others have attempted to trends have been examined in other parts ly halving the incarcerated population. analyze the reasons why Black males of Eastern Europe, with one report Although few American prisoners could have higher rates of crime for certain describing a 50% decline in P?and’s be considered "political," thousands are offenses, and why there are a vastly dis prison population in threeyears. in prison due to policy choices - as a proportionate number of Black males be result of mandatory minimum sentences, hind bars. The reasons are complex, but In sharp contrast, the incarcerated restrictive parole policies, sentencing include factors relating to the root causes population in the United States has more guidelines, and other policies. While we of crime as well as the response of the than doubled in the past decade, rising could debate the wisdom of these criminal justice system. African- from just over 500,000 in 1980 to more policies, the point is that, to a certain American males, who are dispropor than one million today. On top of this extent, the size of the prison population tionately low-income, face a variety of dramatic increase, the rateof increase for is a reflection of conscious political problems, including: the social and African-American males has been even choices. economic decline of our inner cities and greater than for the population as a diminished opportunities for young whole. The growth of prison populations in the people; the continuing failure of our past decade, for example, shows that in schools, health care systems, and other Why has the incarcerated population of carceration rates do notrise or fall direct institutional supports to prepare young the United States risen so dramatically, ly with crime rates. Although the crime Black males to occupy legitimate roles in and is now the highest in the world? rate has dropped by 3.5% since 1980, the society; continuing poverty and a dis Following, we explore two possible prison population has doubled in that tribution of wealth which has resulted in causes - crime ratesandcriminal justice period. Breaking down these figures fur even greater disparity between the rich policies. ther, we see first that crime dropped by and the poor over the past twenty years. 15% from 1980 to 1984, while the num Crime Rates ber of prisoners increased by 41%; then, The comparison with South Africa from 1984-1989 crime rates climbed by should not be misconstrued to indicate International comparisons of crime rates 14%, wl1qe the number of prisoners rose support for the South African apartheid are problematic due to variations in by 52%. Any cause and effect relation system or its criminal justice policies, or reporting methods and the definition of ship is difficult to discern. to imply that the criminal justice system offenses. Nevertheless, it is clear that in in the United States should emulate the comparison to western Europe, for ex During this same period, we have seen a South African system. Despite changes ample, American rates of crime for many number of criminal justice policy chan in the South African political climate in offenses are substantially higher. ges which have resulted in a more puni recent years, the system of apartheid American murder rates are at least seven tive system overall. Mandatory sentenc remains strong and freedom remains an times as high as for most Europeans. ing laws requiring incarceration for cer elusive goal for the Black population. There are six times as manyrobberies and tain offenses are now in place in 46 states. We make the comparison with South three times as many rapes as in We?t At thefederal level, thecombined impact Africa only to provide a point of refer Germany prior to reunification. of thenew sentencing guidelines andhar ence for the cumulative effect of Alfred Blumstein has demonstrated that sher drug laws is expected to result in a American policies regarding Black much of the disparity in international in 119% increase in the federaprison males. carceration rates may be explained b population from 1987 to 1997. highercrime rates for serious offenses. The War on Drugs While a full analysis of this relationship There is also a greater proportion of of is beyond the scope of this study, it ap fenders being sentenced to prison than Particular note needs to be made regard pears that at least some of thedisparity in ten years ago. In 1980, there were 196 ing the "war on drugs," probably the incarceration among nations can be ex offenders sentenced to prison for every largest single factor behind the rise in plained by crime rates, particularly for 1,000 arrests for serious crimes. That fig prison populations during the past assaultive offenses likely to lead to im ure increased by 54% to 301 per 1,000 by decade. While drug arrests and prosecu prisonment. If this is the case, then its 1987.1 tions have increased each year since implications are extremely disturbing, 1980, the number of African-Americans for it implies that the wealthiest society In this report, we do not attempt to arrested for drug offenses has increased in the world has failed to provide a rela analyze therelative weight that should be at an even more rapid rate than has the tively safe society; instead, it has an ap given to crime rates or criminal justice arrest rate for the population as a whole. pallingly high level of crime. policies in causing such a high rate of From 1984 to 1988, the Black incarceration. Other researchers have community’s percentage of all drug ar Criminal Justice Policies conducted analyses of these issues, and rests nationally increased from 30% to further work needs to be done. It is our 38%.16 In Michigan, drug arrests overall While there is little question that the assumption here that both factors play a have doubled since 1985, whil1ç drug ar United States has a high rate of crime, role: that the United States does have a rests of Blacks have tripled. With a there is much evidence that the increase substantially higher rate of serious crime "war on drugs" primarily waged through in the number of people behind bars in than many nations, and that criminal jus the criminal justice system and dis recent years is a consequence of harsher proportionately targeting inner-city drug

JUNE1991 /Thefldvocate5l users, the end result is an increasing num California and the liberal Democratic tion of Americans, and African- ber of prisoners and an ever larger share governor of New York both proudly American males in particular. of Black male inmates. boasted of their accomplishments in ad ding tens of thousands ofnew prison cells Congress should establish a national IMPLICATIONS FOR PUBLIC to their state systems. commission on crime, composed of a POLICY broad spectrum of representatives, to Unfortunately, the decision-making conduct acomprehensive examination of Ten years ago, state and national process in criminal justice is particularly crime rates and incarceration rates. The policymakers were faced with these cir prone to the influence of political commission should be directed to cumstances: rhetoric, It is no accident that, for several develop a set of recommendations to sessions now, a major crime bill has been reduce the rates of crime and incarcera * With a combined prison andjail popula adopted by Congress every two years tion. Those recommendations should in tion of 500,000, the United States stood prior to the November election. As the clude programs and policies within the third in the world in its rateof incarcera "Willie Horton" issue showed too well in criminal justice system, as well as tion, behind two highly repressive the last presidential campaign, public preventive measures for the family, com governments. The country had already policy on issues of crime aridjustice is far munity, and workplace. experienced a significant increase in its too often driven by the atypical, sensa incarcerated population since 1973, with tional "crime of the month," rather than 2. General Accounting Office study the number of prisoners rising by well by a rational examination of options. of the social and economic factors re over 50% from 1973 to 1980. Promising lated to crime. alternatives to incarceration - programs Had the punitive policies of the past of community corrections, restitution to decade resulted in dramatically reduced Crime has many causes, some in victims, community service, victim-of crime rates, one could argue that their dividually-based, others related to social fender mediation programs and many great expense was partially justified by and economic conditions and oppor others - had been developed and were theresults. But as the 1 990sbegin, we are tunities. The General Accounting Office being implemented in many states. Fur faced with the same problems as in 1980, should review research in this area to ther, there was little optimism in the cor only greater in degree - overcrowded determine the relative influence of a rections community that the high rate of prisons, high rates of crime, a major na range of social and economic factors on recidivism of released prisoners would tional drug problem, and the public lack crime. These factors should include un substantially diminish. of confidence in the criminal justice sys employment, welfare benefits, school tem. In many respects, it is not surprising dropout rates, pre-school programs, and * Communities were in a state of decline, that harsher criminal justice policies have access to health care and housing. A particularly our urban areas. The steady had little impact on crime. greater understanding of the root causes decline of our manufacturing base had Criminologists have long contended that of crime will provide policymakers and eliminated many relatively ifthe stable and criminal justice system can have an the public with information that can "I high-wage employment opportunities, effect on crime, it is much more likely to guide budget and program priority replaced in many cases by low-wage ser result from increasing the certainty of decisions. vice jobs. Schools in many urban areas arrest, and not the severity of punish experienced dropout rates of 40 percent ment. 3. Justice Department funding of or more, waiting lists for low-income pilot programs to reduce the high housing were years long, and over 30 if we continue to pursue the policies of rate of incarceration of African- million Americans were without health the I 980sin the 1990s, we can expect that American males. insurance. Black males may truly become the "en dangered species" that many have While criminal justice agencies are rela The choice for policymakers in respond predicted. No segment of society, how tively limited in the impact they can have ingto our highnational crime rate, there ever, remains free from the cost of the on crime, they can develop and imple fore, was verystark. The first option was punitive policies of the 1980s. The ment policies to alter the number of of to continue to build new prisons and jails nation’s record rateof incarceration con fenders and type of control under which at a cost of $50,000 a cell or more, and to tinues to increase at an unprecedented they are placed. The Justice Department spend $20,000 a year to house each scale. The National Council on Crime should encourage the development of prisoner. The second option was to spend andDelinquency projects that ourprison programs and sanctions designed specifi these same tax dollars on prevention population alone, exclusive of jail in cally to reduce the disproportionate in policies and services - programs mates, will rise by 68% fro 703,000 in carceration rate of African-American designed to generate employment and to 1989 to 1,133,000 in 1994. males. In the area ofjuvenile justice, the provide quality education, health care, Department is currently providing fund and housing, along with alternatives to We now have the opportunity, and the ing for "programs designed to reduce the incarceration rather than new prison obligation, to review our policy options proportion ofjuveniles detained or con cells. in regard to crime and punishment, and fined ... who are members of ethnic and to examine carefully the impact of the minority groups where such proportion The choice was not described as clearly lessons of thepast decade. In thesection exceeds the proportion such groups rev as this, of course, but those were essen following, we suggest a new direction for resent in the general population." tially the two options faced by responding to crime and achieving jus Programs for African-American males policymakers. Overwhelmingly, the tice. could include diversion from prosecu punitive policies of the first option were tion, intensive probation, alternative sen the ones selected at both a national and tencing, and parole release planning, local level.In the area ofcriminal justice, RECOMMENDATIONS among others. Priority should be placed one would be hard pressed to determine FOR PUBLIC POLICY on programs which have the potential to whether Democrats or Republicans were be replicated in other jurisdictions. more zealous in their pursuit of repres sive criminal justice measures. The con 1. Establish a national commission servative Republican governor of to examine the high rate of incarcera

JUNE 1991/ The Advocate 52 4. Redirect the "war on drugs" to fewer opportunities to gain an education define drug abuse as a public health or marketable skills than they did a problem and not a criminal justice decade ago. Further, more than halfof all Pyison $ 17,761 problem. prisoners with a drug history are n en Work Release 11,556 rolled in drug treatment programs. For House Arrest 3,332 Intensive Supervision 2,292 In the past decade, drug abuse has taken those offenders who are sentenced to Regular Probation 569 a great toll in human lives and potential prison, it is in society’s interest to attempt among all sectors of our society. The to reduce recidivism by providing a The study further found that for every direction of the "war on drugs," though, broad range of counseling, educational offender sentenced to prison, three has served to increase dramatically the and vocational services appropriate to drug number of Americans in prison and, in offenders could be treated in an inpatient prisoners’ needs. treatment progra and sixteen in an out particular, thenumber of non-white, low- patient program. income males. There is little evidence to 7. Repeal mandatory sentencing show that the law enforcement approach laws. the drug 9. Engage In a national dialogue on to problem has had a substantial issues of crime and punishment. impact on drug abuse or drug-related Mandatory sentencing laws for drug crime. While waiting lists for treatment crimes and other offenses have exacer two decades, inspired by programs remain at six months more For more than or bated prison overcrowding, while deny politicized rhetoric, our national res in many communities, the number of ing the possibility of judicial discretion been demand har drug arrests and prosecutions ponse to crime has to continues in appropriate cases. In Michigan, for sher and harsher punishment, and to to rise as 70% of federal anti-drug fund example, a 50-year oldgrandmother with equate punishment with incarceration. ing is directed toward law enforcement. no criminal record is serving life without This approach has taken a great toll in Defining drug abuse as a public health parole - same the penalty as for first human lives, at a huge cost to taxpayers. problem would require a shift in funding degree murder - for the offense of pos and program priorities to In spite of therecord number of prisoners a system session of more than 650 grams of we focused on education, prevention, and cocaine. In the federal system, man resulting from these policies, arestill treatment rather than incarceration. datory sentences thwart the purposes of a left with high rates of crime and an epidemic of drug abuse. sentencing guidelines system designedto 5. Redirect the focus of law enforce. introduce a rational basis for sentencing. ment to address community needs calling The American public is more open to In for the repeal of mandatory engaging in a broad discussion of crime and to prevent crime. sentences, the Federal Courts Study and punishment issues thars commonly Committee charged that they "create believed by policymakers. Day-to-day Police forces are inherently limited in penalties so distorted as t hamper their ability to control crime since they federalcriminal adjudication." 21n juris experience with alternative sentencing can generally onlyrespond programs and comprehensive public tocrime once dictions without mandatory sentencing, opinion surveys demonstrate that it has occurred. Of 34 million serious judges are not hindered from sentencing crimes committed eacyear, 31 million drug offenders to incarceration when Americans understand and support more never result in arrest. Even if we as they feel it appropriate, butcan also use frequent use of non-incarcerating sanc sume that a good number of offenders their discretion to sentence offenders to tions and programs that addre had committed multiple rehabilitation and the causes of crime. crimes which non-incarcerative sanctions. Mandatory is time civic, were not detected, we can still recognize sentences should be repealed because It now for America’s busi the limited impact that law enforcement ness and political leaders to invite the they do notpermit judges to exercise that American people to engage in a rational can have. Effortsare being made in some discretion in the interest of justice. police departments to refocus law enfor and constructive discussion of crime, cement priorities. In New York, St. 8. Expand the use of alternatives to punishment, and justice issues. Louis, and other cities, community- Incarceration. oriented policing is being implemented. CONCLUSION This approach emphasizes improving Incarceration is the most expensivesanc police-community relations and "If you can’t do the time, don’t do the a pro tion in the criminal justice system and crime." active approach to policing in order to brings very limited results in terms of - Prisoner saying address problems before they escalate public safety or rehabilitation of of and to be able to respond to crime more fenders. A range of alternatives to incar More andmore Americans, effectively. The police chief in New cerationnow exist which have thepoten and African- Haven, Connecticut hasadopted a policy American males in particular, are "doing tial to reduce the number of offenders the time." Unfortunately, this hasn’t led of discontinuing mass drug arrests and sentenced to prison. A study by the now uses his officers to go door-to-door them or othersto stop "doing thecrime." RAND Corporation examined the Incarceration rates set new records each in certain communities to encourage drug eligibility criteria of alternative sentenc abusers to entercity-sponsored day, whilecrime rates remainintolerably treatment ing, or intermediate sanctions, programs high. Clearly, large-scale imprisonment programs. and then made projections on thenumber provides no panacea for crime. of "prison-bound" offenders who could 6. Reduce the recidivism rate of qualify for such programs. Even if those As we havediscussed, two possible areas prisoners by providing effective ser offendersconvicted of murder or rape, or vices. with a prior prison term were of explanation for our high rate of incar excluded, ceration arecrime rates and criminal jus 33% of potential inmates stili qualified The most recent Justice Department for the alternative programs.2 tice policies. It is important to determine study of recidivism shows that 62% of the relative influence of these factors in state prisoners are rearrested within three Diverting appropriate offenders from the contributing to an incarcerated popula years of release from prison. With prison system can result in substantial tion of more than a million Americans, prisons seriously overcrowded arid state cost savings as well. A study in Delaware and to develop programs and policies which can offer constructive solutions. budgets constrained across the country, calculated the following annual costs of inmates in most prison systems have Various sanctions:

JUNE1991 /TheAdvocate53 This report suggests that we need to percentage of prisoners under thejurisdiction Justice Expenditure and Employment, engage in a public dialogue regarding the of state prison systems are held in local jails. 1988, July 1990. factors which have ledthe United States Estimates of this number vary in publications Prisoners in 1989, May 1990. to be aworldleaderin incarceration. ofthe BureauofJusticeStatistics, dueto varia This tions in reporting methods. For this report., we Blumstein, Alfred, Prison Populations: A dialogueneeds to be very inclusive,rang have subtracted 39,115 inmates from the total System Out ofControl?, in Crime andJustice: ing from criminal justice officials to combined prison andjail population 3.6% of A Review of Research, Vol. 10, edited by prisoners, from members of Congress to all inmates to account for this overlap. See Michael Tonry and Norval Morris, Chicago, neighborhood organizations. Ifwe value JailInmates 1989, BureauofJusticeStatistics, University of ChicagoPress, 1988. the human potential of all members of June 1990. Since this is the higher of the two oursociety, andifwe truly wish to reduce figures reported for this category, this Bureau of the Census, U.S. Department of crime, we will need to consider seriously provides aconservative estimateoftheoverall Commerce, Projections of the Population of whether we can afford to continue our number ofincarcerated persons. the United States,byAge,Sex, andRace: 1988 current ineffective social and criminal to 2080, January 1989, Washington, D.C. To determine the number of incarcerated justice policies. Black males, we have used the figure of 43% Coleman, Fred, "Reforming a University of of the jail population Jail Inmates 1989, as Soviet Crime," Newsweek, September 10, MARC MAUER well as the most recentestimateof 43% of the 1990. Assistant Director prison population Correctional Populations The Sentencing Project in the United States, 1987, Bureau of Justice Currie, Elliott, Confronting Crime, Random 918 F St., N.W. Statistics, December 1989. From this total House, 1985, New York. Suite 501 also, we have deducted the number of Washington, D.C. 20004 juveniles as well as the3.6% overlap between Doleschal, Eugeneand Anne Newton, "Inter jail and prison inmates. national Rates of Imprisonment," National 202 628-0871 Council on Crime and Delinquency Informa FAX 202 628-1091 SOVIETUNION - The most recentpublished tion Center, 1979. figure of 769,000 prisoners is taken from Newsweek, Fred Coleman, "Reforming a Glazer, Sarah, "Crime and Punishment: A University of Soviet Crime," September 10, Tenuous Link," Editorial Research Reports, METHODOLOGY 1990. This figure is consistent with reports October 20, 1989. documenting the decreasing number of in Population Data mates in recent years. See, for example, the Mauer, Marc, "Young Black Men and the estimateof 800,000 pi-isonersin 1989 in Peter Criminal Justice System: A GrowingNational son. It is somewhat unclear whether these Problem," The Sentencing Project, February Fordaxaon total nationalpopulations,wehave used the figures include incarcerated juveniles, and 1990, Washington, D.C. following sources: whether there arepolitical prisoners who are still incarcerated under the jurisdiction of a Penal Reform International, Newsletter, No. UNITED STATES - Census Bureau estimate separate agency. 1, February 1990, and No. 2, April 1990, for July 1, 1989. London. SOVIET UNION. SOUTH AFRICA - The number of prisoners, WorldAlmanac estimate, along with a breakdown by race and sex, is Petersilia, Joan and Susan Turner, "Reducing 1989 taken from the annual report of the South Prison Admissions: The Potential of Inter African Prisons Service, with figures as of mediate Sanctions," State Government, SOUTH - AFRICA Population figures for June 1989. The South African categories of March/April 1989. South Africa are inconsistent, particularly Blacks and Coloreds are combined as Black regarding the non-white population. For both for our analysis. To South Africa and the homelands, we estimate the additional Peterson, D.J., "The Zone, 1989: The Soviet have numberofprisoners in thefour homelands, we Penal System under Perestroika," in Report relied on estimates made by the Institute of begin with a report Race Relations, generally of the Institute of Race on the USSR, Vol. 1, No. 37, 1989, considered to be Relations documenting that there were 2,677 Washington, D.C. among the most objective organizations in prisoners in Bophuthatswana South Africa. These in 1987. Since figures are lower than we were notable to obtain anyother incarcera Pranis, Kay. "Options in Criminal Correc some other estimates. At the high end, for tion example, is aCIA estimate statistics for the homelands, we haveused tions: A Study of Costs and Opportunities in of a total popula the incarceration rate for Bophuthatswana to Delaware," Minnesota Citizens Council on tion of39,549,941. Using this figure, theover projectan estimated prison population for the Cii me and Justice, 1989. all rate of incarceration in South Africa would other three homelands. Although there are a be 303 per 100,000, compared to the estimate very small of 333 per 100,000 we have number of whites living in the South African Institute of Race Relations, calculated in the homelands, we have assumed for these pur RaceRelations Survey 1 988/89, 1989, Johan report The Blackmale rate would be 669 per poses that all prisoners, as well as the overall nesburg. 100,000, compared to the report’s figure of population 729. in the homelands, are Black. We have also assumed that the percentage of the South African Prisons Service, Report, 1 July Black prison population in South Africa that 1988 to 30 June1989, 1990, Pretoria. Overall population figures and piisonpopula is male - 96.1% - is the same for the tion datain the report arenot always provided homelands. for the same year. For example, Due to theneed to estimateprison United Nations, Compendiumof Social Statis the South populations in the homelands, we have also tics and Indicators 1988, forthcoming, 1991, African population figure is as of June 1988, calculated the Black malerateof incarceration New York. while the prison data are from June 1989. excluding the homelands. That Sincetheprison population figure, 851 per has not fluctuated 100,000, is higher than the figure used in the Wicker, Tom, "An Ungrand Total,"The New dramatically, thereis no reason to believe that report, but does not change the overall rank York Times, October 13, 1989. this inconsistency introduces any substantial ings or analysis. margin of error into the overallcalculations. World Abnanac 1990, Pharos Books, 1989, New York. Prisoner Data SOURCES Bureau of Justice Statistics, U.S. Department FOOTNOTES Statistics on the number of prisoners have of Justice, Washington, D.C. beenobtained from the following sources: EugeneDoleschal and Anne Newton, "Inter Correctional Populations in the United national Rates of Imprisonment," National UNITED STATES - The total number of in States, mates 1987, December 1989. Council on Crime and Delinquency, Informa in the nation’s prisons as of December Imprisonmentin Four Countries, February tion Center, 1979. 31,1989, andjails as ofJune 30,1989, exclud 1987. ing 2,250juveniles beingheld injails. A small Jail Inmates 1989, June 1990.

JUNE 1991/ The Advocate 54 2 Marc Mauer, "Young Black Men and the 8 D. J. Peterson, "The Zone, 1989: The Soviet council on Crime and Delinquency, San Fran Criminal Justice System: A Growing National Penal System under Perestroika," in Report cisco, December 1989. Problem," The Sentencing Project, February on the USSR, Vol. 1, No. 37, 1989. 1990. 19 Federal Register, Vol. 55, No. 229, pp. Recent reports suggest that crime rates are 49484- 49485. Many studies of international rates of incar increasing in the Soviet Union, although it is ceration look at sentenced prisoners only, and too soon to know whether this will have an Criminal Justice section, American Bar As not those inmates awaiting trial or incar impact on the prison population. See, for ex sociation, Criminal Justice in Crisis. Novem ceratedin a localjail. Weinclude both jail and ample, Celestine Bohien, "Some Soviet Items ber 1988, p.4. prison inmates in this study because we have Aren’t Scarce: Crime, Strikes. Fighting, Pol no breakdown on the pretrial vs. sentenced lution," The New York Times, August18, 1990 21 Marcia R.Chaiken, "Prison Programs for population in the Soviet Union. Drug-involved Offenders," National institute ‘°Tom Wicker, "An Ungrand Total,"The New of Justice, October 1989. See, for example, Compendium of Social York Times, October 13, 1989. Statistics and Indicators 1988, United Na 22Federal Courts Study Committee, Report of tions, 1991, and Doleschal and Newton, "In ‘ Elliott Currie, Confronting Crime, Random the Federal CourtsStudy Committee, April 2, ternational Rates of Imprisonment" House, New York, 1985, p. 5. 1990, p. 134. 5Overall costs ofincarceration aretaken from 12 Alfred Blumstein, "Prison Populations: A 23 Joan Petcrsilia and Susan Turner, "Reduc Justice Expenditure and Esnplcryment, 1988, System Out of Control?," in Crime and Jus ing Prison Admissions: The Potential of Inter Bureau of Justice Statistics, July 1990. To tice:A ReviewofResearch, edited by Michael mediate Sanction s," State Government, calculate thecost of Black male incarceration, Tonry and Norval Morris, Volume 10, March / April 1989. we have used 43% of the total figure, repre University of Chicage Press, 1988. See also senting the Blackmale proportion ofthe over "Imprisonment in Four Countries," Bureau of Kay Pranis, ‘Options in Criminal Correc all institutional population. Justice Statistics, February 1987 fora similar tions: A Study of Costs and Opportunities in analysis. Delaware," Minnesota Citizens Council on 6See Newsletterof PenalReform Internation Crime andJustice, 1989. al, No. 1, February 1990 and No. 2, April 13 Federal Bureau of Investigation, Crime in 1990, London. It is possible, of course, that the United States, Uniform Crime Reports 25 Stephen D. Goufredson and Ralph B. rates of incarceration in some Third World 1989, August 1990, and Bureau of Justice Taylor, "Public Policy and Prison Popula countries may be higher, but there are few Stal.istics,Prisoners in 1989, May 1990. tions: Measuring Opinions About Reform," published reports discussing this. One source Judicature, Vol. 68, Nos. 4-5, Oct.-Nov. 1984. examines 1974 incarceration rates for 48 ‘4The United States Sentencing Commission, countries, induding many in Asia, Africa, and SupplementaryReport on the Initial Sentenc John Doble and Josh Klein, Punishing South America, and finds all well below the ing Guidelines and Policy Statements, June Criminals:The Public’sView, Public Agenda rate for the United States. See Culvert R. 18, 1987, p. 71. Foundation, 1989. Dodge, A World Without Prisone, Lexington 15 Books, 1979, p. 258. Sarah Glazer, "Crime and Punishment: A Tenuous Link," Editorial Research Reports, 7llere, we use theaveragedaily population in October 20, 1989 South Africa because of the availability of data, while we have used asingle daVy count in ‘6Sam Meddis, "Drug arrest rate is higherfor calculating the rate of incarceration, in order blacks," USA Today, December 20, 1989. to be consistent with the method used for the United States and the Soviet Union. We also 17 E. J. Mitchell II, "Cops burst in, you feel exclude the four homelands in this section violated." Detroit News, April 26, 1990. because we have no dataavailable to measure the fluctuation of the prison population there James Austin and Aaron David McVey," overtime. The Impact of the War on Drugs," National

JUNE1991 /Thefldvocate55 Young Black Men and the Criminal Justice System

The Sentencing Project’s February A prison warden in Missouri, who real First, although the reasons for racial 1990 report on "Young Black Men and ized that state furlough screening disproportion in the system are com the Criminal Justice System" shocked criteria result in far more white of plex, this has not prevented criminal the nation. The report showed that, on fenders qualifying for furloughs than justice officials from facing these is any day, 1 in 4 black males aged 20 to blacks, is attempting to analyze the sues. Too often, we hear that the 29 is in prison or jail or on probation or reasons for this disparity, and to see if criminal justice system is the"end of the parole. The 609,690 young black males any bias exists in the screening device. line," the institution which steps in under the control of thecriminal justice when all else has failed. While there is system on one day far exceeded the State and national policymakers have truth in this, recent actions of criminal 436,000 black males of all agesenrolled looked carefully at these problems. Not justice personnel indicate that many in highereducation on the same day. surprisingly, African-American offi want to try to address these problems. cials have taken the lead. The report was featured in more than Second, therehasbeen increased recog 700 newspapers andmagazines, and at The Congressional Black Caucus spon nition that criminal justice problems tracted radio and television coverage sored sessions at its annual legislative cannot be solved in isolation from the including the network evening news, conference to analyze racial disparities largercommunity. Whether developing the "Geraldo" show, and National in the criminal justice system, and to mentoring programs or working with Public Radio’s "All Things Con examine links between educational the religious community, criminal jus sidered," More significantly, thereport failures and entry into the criminal jus tice personnel have a potentially deep has led to a broad range of efforts to tice system. source of support for working with of reduce the disproportionate impact of fenders. the criminal justice system on African- The New York State Black and Puerto American males, Rican Legislative Caucus initiated Reaction to the report challenges the forums to solicit community sugges myth that thepublic is uniformly "tough The American BarAssociation’s Com tions for responding to the large-scale on crime," and has no sympathy for mittee on Minorities in the Criminal incarceration of black males. The first examining the underlying causes of our Justice System is developinga report on fonim in Harlem attracted 700 people, high national crime rates. Editorials policies and programswhich can reduce and was broadcast live on radio. across the country, both conservative thecriminaljustice system’s dispropor and liberal, echoed similar themes. As tionate impact on minorities. Professionals and organizations not the Charleston, South Carolina Post / primarily involved in criminal justice Courier stated, "If the report does noth National organizations, including the have also responded. The Boston Globe ing else, its horrifying statistics should National Association of Pretrial Ser reported that "campus discussions of ignite anational debate on a subject that vices Agencies and the American black male enrollmenthave been stimu has become too critical to ignore any Society of Criminology, held annual lated by a report released by The Sen longer." meeting sessions on strategies to tencing Project." Educators concerned respond to this problem. State agencies with school dropouts and declining en MARC MAUER and criminal justice reform groups in rollment in higher education have been Assistant Director Connecticut, Michigan, New York, and discussing a variety of approaches to The Sentencing Project Virginia have convened public discus design curricula andstructure schools to 918 F Street, NW sions. meet the needs of black youth more Suite 501 effectively. Other groups, such as "100 WashingtoN, DC 20004 TheSuffolk County Long Island, New Black Men" in Memphis, have begun 202 628-0871 York Department of Probation con mentoring programs to provide positive Fax 202 628-1091 vened a working group by county role models for young people in their criminal justice officials and com community. munity organizations to develop a men toring program. Theprogram will serve Criminaljustice professionals shouldbe both as a preventive measure for black pleased with thewidespread interest the youth and as a diversion program for report has revived in problems which young offenders in the criminal justice have long been acute in the criminal system. justice system. The nature of this inter est offers some important lessons.

JUNE 1991/The Advocate 56 1625 K STIET. N.W. EIGH1H FLOOR WASH.. D.C. 20006 202 452-0620 Mark Your Calendar NOW!

Litigation Directors Conference I Substantive Law Conference New Orleans, Louisiana Berkeley, California June 9-12, 1991 August 3-6, 1991 Who should attend? Litigation directors, Who should attend? Litigators and advo senior attorneys, and other attorneys cates. with leadership responsibilities In areas What’s the plan? Concurrent 2 1/2 day In of program management or substantive tensive training sessions on a variety of legal work. Issues and topics will be presented by What’s the plan? The agenda will Include staff of the national back up centers and sessions on management techniques, field programs. legal Issues and strategies, computer ap How much will It cost? plications, impact ofemerging issues on $225 registration fee only theclient community,and more. $375 registration, meals and lodging How much will Itcost? $225 registration fee meals and lodging NOT Included Hotel rates are $71/night NLADA 69th Annual Conference Portland, Oregon October 28-November 2,1991 1ExperiencedManagers Conference Who should attend? Program managers, cost, location & date in early 1992 litigators, administrators, paralegals, to be announced trainers, computer spedalists, PA! coor dinators, board members, and clients. Who should attend? Those with at least 5 What’s the plan? Sessions will be designed years experience as a program director, to followup on the agendas presented at litigation director, managing attorney or the Litigation Directors and Substantive administrator. Law Conferences In addition toa variety What’s the plan? Sessions will address sub of sessions focused on substantive law, stantive, delivery, management and management, training techniques, client leadership issues Issues, computer applications, and PAl delivery. How much will it cost? $225 registrationfee only

NLADA has contracted with United and Delta to providediscount airfares to these events to help reduce yourcosts. An announcement of each event including a description of the program, transportation infor

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JUNE 1991 / The Advocate 57 A New Study on the Decision-Making of Capital Jurors

Since the United States Supreme Court models of decision-making that may ex state is represented by a university decisions in Gregg v. Georgia, 428 U.S. plain how jurors arrive at their decisions professor ofeitherlaw or a social science. 153, 96 S.Ct. 2909 1976, Jurek v. of guilt and/or punishment. The project, Models of Juror-Decision Texas, 428 U.S. 262, 96 S.Ct. 2950 Making in Capital Cases, is funded by 1976, Proffit v. Florida, 428 U.S. 242, The first, known as the algebraic model, the National Science Foundation. 96 S.Ct. 2960 1976, Wood.son v. North proposes that people listen to all the Carolina, 428 U.S. 280, 96 S.Ct. 2978 legally relevant evidencepresented, as Thirty capital cases, fifteen where the 1976 and Roberts v. Louisiana, 428 sign each piece of evidence a ranking of jury voted for death andfifteen where the U.S. 325,96 S.Ct. 3001 1976 numerous importance, and arrive at a decision by jury voted for a sentence of less than researchers have attempted to demon combining each piece of evidence and its death, will be studied in each state. For strate that a guided discretion system has associated importance ranking Ander each case, four of thejurors will be inter failed to reduce or eliminate the arbitrary son, 1981; Einhom and Hogarth, 1985. viewed. Therefore, a total of 120 inter and discriminatory nature of capital sen views with previous jurors will be con tencing decisions. Alternatively, jurors may arrive at ducted in each participating state. decisions of guilt and/or punishment by The approach typically employed is to creating a "story" of the crime or crimin The interviews will be conducted by ad focus on the outcomes of capital cases as al, based on the evidence presented at vanced graduate students. Each inter evidence that discrimination still exists trial Bennett and Feldman, 1981; Pen view is expected to take approximately in capital sentencing. For example, Bat nington and Hastie, 1986; 1988. The two and a half hours to complete. The dus, Woodworth, and Pulaski 1990, in story is then compared to the available interview itself consists of questions per their landmark study that was presented verdict categories, with jurors choosing taining to the eight general areas of the to the Supreme Court in McCleskey v. the category that best fits the story. case: the trial; the respondent’s sentenc Kemp, 481 U.S. 279, 107 S.Ct. 1756 ing decision; sentencing guidelines; the 1987, found that convicted murderers Finally, a matching model suggests that judge, prosecutor and defense attorney; whosevictims were white were 4.3 times jurors arrive at their decisions by com jury selection and composition; death more likely to receivea sentence of death paring the evidence presented at thetrial penalty attitudes; and personal back than thosewhosevictims were black.The with their own preexisting mental story ground information. Court’s primary criticism of the Baldus of a related occurrence Smith and study was that it failed to prove that the Medin, 1981. The more similar the Each of the states involved in the project jurors who served in Warren McCles crime and the defendant in the case the is at a slightly different phase of data key’s case intended to discriminate juror is deciding are to this story, the collection. However, it is anticipated that against the defendant. more likely thejuror’s decision will cor the majority of the interviews in Ken respond with the outcome of the mental tucky will be completed by theendof this The effects ofdeath qualification on sen story. coming summer. Ifall goes according to tencing decisions is another avenue that schedule, the preliminary findings researchers have pursued. Many of the In sum, thegoal of the current study is to should be available by the middle of results of this study were presented to the determine which of the above models of November, 1991. In fact, the preliminary high court in Lockhart v. McCree, 476 decision-making most accurately findings arescheduled to be presented at U.S. 162, 106 S.Ct. 1758 1986. In this describes the process through which the annual meeting of the American case, a primary criticism was that actual capital jurors arrive at decisions of guilt Society of Criminology next November. jurorshadnot participated in much of the and/or punishment. By interviewing research. people with previous capital jury ex Each investigator is committed to analyz perience about the decision-making ing his/her state data for publication. The current study attempts to address a strategies they utilized, we will be able to Also, many collaborative, cross-state previously neglected area of inquiry. In ascertain whether actual practices cor publications are planned. particular, the question that guides this respond with legalistic assumptions research is: How do capital jurors actual about the interpretation of evidence. Although only a handful of interviews ly arrive at their decisions of guilt and/or have been conducted thus far, the punishment? Thus, the focus of this re II. METHODOLOGY OF THE majority of which were in Kentucky, the searchis theprocess, not theoutcome, of PROJECT project already has been very well juror decision-making in capital cases. received by the academic community. At the time of this writing, seven states For example, an entire session at the up I. THREE MODELS OF JUROR California, Florida, Indiana, Kentucky, coming joint meeting of the Law and DECISION-MAKING: New Jersey, South Carolina, Texas and Society Association and the Research ALGEBRAIC, STORY, Virginia form the core of this project, Committee on the Sociology of Law of MATCHING and five states Illinois, Louisiana, Mis the International Sociological Associa souri, North Carolina and Tennessee tion, to be held in The Netherlands this There are three social psychological may be added on a smaller scale. Each summer, has been devoted to studies re

JUNE 1991/ The Advocate 58 lated to the project. Second, I would appreciate the oppor REFERENCES tunity to discuss with you your impres III. GENERAL OBJECTIVES OF sions of the case. In return for your assis Anderson, N.H. 1981. Foundations ofInfor THE STUDY tance, I look forward to hearingfrom, arid mation Integration Theory. New York: perhaps workingwith, many ofyou in the Academic Press. A unique characteristic of this project is near future. Bennett, W.L. and Feldman, M.S. 1981. that previous capitaljurors will be inter Reconstructing Reality in the Courtroom. viewed to find out the process through MARLA SANDYS New Brunswick, NJ: Rutgers Univ. Press. which decisions of guilt and/or punish Assistant Professor ment are made. In particular, the project Indiana University Einhom, H.J. and Hogarih, R. 1986. Am attempts to determinehow jurors actually Department of Criminal Justice biguity and Uncertainty in Probabilistic In evaluate all the evidence presented in 302 Sycamore Hill ference. PsychologicaiReview 92,433-461. capital trials. Bloomington, IN 47405 Pennington, N. and Hastie, R. 1986. 812 855-5892 or 812 855-9325 Evidence evaluation in complex decision The primary purpose of this study is to making. Journal of Personality and Sociai assess which theoretical model most ac Maria Sandys received her doctorate in Prychology 51,242-258. curately describes the decision-making social psychology from The University of practices of capitaljurors. The effects of Kentucky in May, 1990. Both her master’s Pennington, N. and Hastie, R. 1988. Ex different statutory sentencing guidelines and doctoral theses were on attitudes planation-based decision-making: Effects of on actual decision-making practices will toward capital punishmen!. MarIa current memory structure on judgment. Journal of Experimental Psychology.Learning,Memory also be studied. ly is an assistant professor in the Dept. of CriminalJustice a! Indiana University. and Cognition 14,521-533. In an attempt to gain a better under Smith, E.E. and Medin, D.L. 1981. standing of the decision-making of capi Ca!egories and Concepts, Cambridge, MA: tal jurors, the respondents will be asked Harvard University Press. about the information that served as the basis of their decisions. For example: What evidencepresented by theprosecu LOUISVILLE BAR FOUNDATION AWARDS OVER $48,000 IN GRANTS. tion defense was most important to the $5,000 AWARDED TO DPA. jurors’ decisions of guilt and/or punish ment? Which witness was most impor The Louisville Bar Foundation awarded over $48,000 in grants for the 1991-92 fiscal year, at its tant to the juror in arriving at his/her May 14 board of directors meeting. The following projects were selected forfunding: decision of guilt and/or punishment? The Louisville Bar Association Judicial Evaluation--SI 1,500. Administered annually by the LBA, alternating each year between evaluationsof theJefferson Circuit and theU.S. DistrictCourts In addition, jurors’ perceptions of the for the Western District of Kentucky one year, and evaluations of the Jefferson District Courts the trial proceedings and actors will be next. Thepurpose of the evaluation is to strengthen thejudiciary of Jefferson County and to offer studied. In particular, does the mannerin constructive criticism to sitting judges. which attorneys structure their cases in fluence the decision-making model Kentucky Department of Public Advocacy --$5,000. The statewidepublic defender program, is employed by the jurors? To answer this planning to conduct a comprehensive, independentevaluation of thesystem. Thepremise underlying question, of course, requires talking to this evaluation is to assess thecurrent quality and methodology fordelivery of services andtoprovide both theprosecutor and defense attorneys ablueprint for anychanges necessaryin the current system to insure that high quality representation is provided to poor citizens accused of crimes. involved in the case. Downtown Lecture Series--S1,387.50. A joint venture of the Louisville Bar Association and the Finally, the design of the project allows Louisville Presbyterian TheologicalSeminary. Eachyear, thegroups plan afour-part series exploring for a comparison between cases that did various ethical issues inherent in day-to-day living. Discussion leaders are selected from such and did not result in a verdict of death. disciplines as the media, law, politics, medicineand theology. Thegrant will cover the expenses of Were there any differences in the the series, which is free and open to the public. decision-making practices ofjurors who served on both types of cases? Legal Aid Society Homelessness Prevention Program--$20,000. Represents families and in It is pos dividuals who are at high risk of becoming homeless, and those who have already become homeless. sible that the process of juror decision The LBF grant goes toward paying the salary of an attorney who concentrates on housing issues by making differs when the resultant sen providing counsel, representation and advocacy. tence is death as compared to other punishments. University of Louisville School of Law Public Service Program--$7,217.50. The University of Louisville School of Law recently became one of the first five schools in the country to adopt a public IV. POSTSCRIPT service requirement for students entering law school. Plans are under way to develop and implement the program. The grant money will go toward hiring a part-time director who will work with public I am responsible for supervising the and private non-profit agencies, as well as the bench and bar, in developing placements and Ken establishing the administrative structure for this program. tucky component of this project. If you areinterested in learning more about the Judicial Ethics Seminar with Michael Josephson--S3,500. The Louisville Bar Foundation and the project or perhaps offering your input, Kentucky Bar Foundation are jointly sponsoring this seminar on judicial ethics featuring national please do not hesitate to contact me. ly-renowned ethics expert Michael Josephson. He will speak in Louisville this June, and address the topic of the new ABA Model Code of Judicial Conduct. In addition, Mr. Josephson will hold two There are two areas of the project for other ethics seminars for attorneys. which I would especially welcome your involvement. First, I want The Louisville Bar Foundation, the arm of the Louisville Bar Association, was established to know of all in 1983 to provide financial support for projects and organizations whose missions include: capital cases in Kentucky since January, Delivering legal services to the poor and indigent;Insproving of the judiciary by periodic evaluation 1988. If you worked on a capital case. and other means; andProviding law-related public education. Grant applications numbered over 30 during that time, I would appreciate it if this year, up significantly from last year. Total dollars requested was in excess of $117,000. you would let me know so I could insure According to LBF President Daniel T. Gcyeue, "The board was gratified by the response to ourcall that the case is included in my inventory. for applications this year. The grants committee had a number of deserving and innovative programs to consider. The LBF board is very enthusiastic about the programs ultimately selected."

JUNE 1991 / The Advocate 59 Selecting Jurors by Jury Commissioners

The 43 Counties that use Jury Commissioners are named. Test Your Knowledge About Dru

1. Can American customs officers order 7. If you, your parents, or other loved 8. Ifmeasured in cubic feet, the nation’s you to disrobe and allow your body to be ones are dying from cancer, will annual demand for cocaine could fit into invasively inspected as you arrive from American drug officials allow your doc an international flight - without any tor to prescribe marijuana to curb A. an oil tanker evidence or even probable cause to chemotherapy nausea or to prescribe 13. a cargo plane believe you are smuggling drugs? heroin to ease pain and anxiety? C. Iowa A. Yes A. Yes 9. In 1989, Washington, D.C., popula B.No B. No tion 622,000, where all drugs are totally

2. What is the largest cash crop in the state of Tennessee? PRESIDENT BUSH TO WAGE WAR ON THE BILL OF RIGHTS A. tobacco B. marijuana C. hay D. rye Comparing the nation’s prosecutors to the soldiers who fought against Iraq, President Bush introduced his draconian new crime bill the Comprehensive Crime Control Act of 3. American employers can now legally 1991 on March 12. In reality, this bill is a death-dealing scud missile aimed at the Bill demand that you take a drug test by of Rights. We patriots must shoot it down. urinating on command before a witness as a condition of keeping your job, even DEATH FOR DRUG DEALERS though they have no evidence you are a drug user. The President’s bill expands the death penalty in ways reminiscent of some of the most repressive governments on earth. Iran, for instance, has been criticized by Human Rights A. True groups for executingdrug dealers under a law enacted last year. The President’s bill also B. False permits the execution of street-level drug dealers.

4. According to the U.S. government, THE GREAT WRIT IN A BODY BAG approximately how many times more people died in this country from using The bill virtually eliminates the ability of death row inmates to petition the federal courts alcohol and tobacco than from using all to review theconstitutionality of their trials. Traditionally, death penalty states have not illegal drugs combined? allocated sufficient Imancial resourcesfor thedefense of poor capitaldefendants. Further, politicized state court judges areoften unwilling to order retrials in capital casesno matter A. 2 how unfair the trial, lest they be branded as soft on crime. B. 10 C. 100 While not a genuine remedy for these chronic problems, federal court review of state D. 1,000 convictions, throughhabeas corpus proceedings, has provideda measure ofjustice. Over thepast decade, almost one third of those sentenced to death in state courtshave had their 5. According to theU.S. government, the Sentences or convictions overturned by federal courts. total number of children who died from all forms of illegal drug overdoses in The administration’s bill would eviscerate the great writ of habeas corpus by destroying 1988 was the ability of federal courts to grant reliefto prisoners whose state trials were unconstitu A. 10,000 tional. In effect, the bill would allow the execution of prisoners even if their trials were B. 5,000 infested with constitutional errors. C. 50,000 D. 88 POLICE MISCONDUCT/RACE DISCRIMINATION

6. The chief administrative law judge of In the aftermath of the videotaped assault by 25 white Los Angeles police officers of a the Drug Enforcement Administration black motorist, onewould hope that anynew crime legislation would seek to curb police stated in a 1988 legal decision that misconduct and remedy race discrimination in the criminal justice system. The "marijuana is far safer than many foods Administration’s bill, though, actually rewards police misconduct by providing that we commonly consume," that it "is one evidence obtained through unlawful police searches can be used in a criminal prosecution. of the safest therapeutically active sub stances known to mankind," and that it The bill contains aprovision whichpurports to guard against racediscrimination in death ought to be made available as a medicine penalty cases. However, this provision forbids theinvalidation ofracially-motivated death to Americans suffering from cancer and sentences by the only evidence publicly available -- statistical analysis which shows that multiple sclerosis. blacks are disproportionately sentenced to death. A. True NEAL WALKER B. False Loyola Death Penalty Resource Center 210 Baronne Street, Suite 608 New Orleans, Louisiana 70112 504 522-0578

JUNE 1991/ The Advocate 61 illegal had 262 drug trade homicides 16. Which statement is false? 23. The Bush Administration claims that while Amsterdam population 670,000, the U.S. has 862,000 regular cocaine where many drugs are decriminalized A. Enough urine is tested each year to fill users. How was that number deter had 11. Lake Michigan. mined? B. Two ounces of aparticular diet soda held A. True under the arm for one hour will be accepted A. It’s the total number of High Tinier B. False as avalid urine sample 98% of the time. magazine subscribers C. Adding a brand of eye drops to a urine B. A survey of hospital emergency rooms sample camouflages any trace of marijuana 10. Is it legal for the police to obtain a C. The government interviewed 8,621 in a drug test. using cocaine wan-antto search everynook and cranny people, of whom 65 admitted D. Cocaine users can avoid detection by weekly. Thenumber was then extrapolated of yourhome on the basis of a tip sent in simply adding bleach to urine. to account for the total U.S. population by your neighbor in an unsigned, D. A Gallup po11 of white, suburban males anonymous letter? 17. According to the Bush Administra completed in May 1990 tion, the typical cocaine user is white, A. not in America male, a high school graduate, employed 24. Last year, international drug smug B. only on Sunday full-time, and living in the suburbs. placed a $30,000 bounty on the C. yes glers head of "Barco." Who is "Barco?" A. True 11. AIDS, thedisease of this century and B. False A. The Secret Service code name for the perhaps theplague of thenext, is spread Attorney General. more by sex than by intravenous drug 18. TheDutch have afar lower percapita B. The director of the Bolivian government use. consumption of drugs than the United police States. Who wrote: "The fundamental C. A U.S. BorderPatrol drug-sniffing dog. A. True difference in Dutch drug policy is its D. A mid-level bureaucrat in the Customs B. False Service, demand-oriented approach to the prob lem as opposed to supply-oriented 12. The rate of AIDS among the in the 25. A recent National Institute of Drug travenous users approach favored by the United States study found: drug in Liverpool, and many other countries." Abuse NIDA federal England, where health authorities are encouraged to provide clean needles to A. A typical Grateful Dead fan is a white A. Reverend Jesse Jackson male living in thetuburbs. addicts is believed to be 0.1% while the B. TheBush Administration’s State Depart comparable rate among the addicts in B. You can blow bigger bubbles with ment nicotine chewing gum than with regular New York City where clean needles are C. Vice President Dan Quayle D. Roseanne Barr chewing gum. illegal is believed to be 50%. C. People who have chocolate cravings and ice cream binges are more likely to become A. True 19. Instead of expending the time and drug addicts, B. False effort to catch and prosecute marijuana D. Catepillars that eat coca plants have con users, "we should concentrate on stant runny noses and also seem to have 13. Since 1986, theU.S. Customs Service prosecuting the rapists and burglars who trouble sleeping. has spent more than $100 million to test, area menace to society." Who made this E. A typical member of Plato and theGuar build, anddeploy seven radar balloons on statement advocating the decriminaliza dians a legendary ‘60s rock and roll band is a white male living in the suburbs. the U.S./Mexican border. How many tion of marijuana? smugglers have been caught in this ef fort? A. Reverend Jesse Jackson 26. Theinhalant used most by students in B. The Bush Administration’s State Depart Texas is a typewriter correction fluid. A. more than 5000 ment B. about 2500 C. Vice President Dan Quayle A. True C. 942 D. Roseanne Barr B. False D. less than 50 20. For every $1 we spend on treating 27. In theU.S. last year, the total number 14. Last year, theMassachusettsNational hard-core drug users, theU.S. taxpayeris of overdose deathscaused by aspirin was Guard saved $3 in reduced crime and other so virtually the sanie as the overdose deaths cial costs. from A. patrolled the Atlantic Ocean looking for drug smugglers. A. True A. tobacco B. attended aGrateful Deadconcert to tryto B. False B. heroin identify suspicious-looking people. C. alcohol C. was sent to Peru to eradicate coca plants. 21. Every D. typewriter correction fluid D. discovered a marijuana field the size of day, 56,000 hard-core addicts the city of Boston. seek treatment, but are turned away for lack of staffor space. ANSWERS 15. In 1989, sailing for a combined 2347 A. True 1.a2.b3.a4.c5.d6.a7.b8.b9.a 10. ship days costing $33.2 million, the U.S. B. False c 11.b 12. a 13. d 14. c 15. d 16. a 17. a Navy and Coast Guard 18. b 19. c 20. a 21. a 22. c 23. c 24. c 25. 22. Coca is the primary ingredient in c26.a27.b A. seized 879 ships and arrested 2,368 drug smugglers. cocaine. The biggest legal importer of B. seized 637 ships andarrested 1,472 drug coca in the United States is Congressman Pete Stark’s Drug Test to smugglers. Congress, Reprinted by permission. C. seized 348 ships and arrested 857 drug A. The Federal government smugglers. B. the makers of nicotinechewing gun D. seized seven ships andarrested 40 smug C. Coca-Cola glers. D. RJR Tobacco

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JUNE 1991/The Advocate 63 Defendants with Mental Retardation Need Interveners who Understand Them

When policemen arrest persons with the spite of avigilante, anotherthewisdom in an institution and thereby deny him or retardation, confusing things can happen. and intellect of Justice Brandeis. her a chance to be proven innocent. to them about Officers recite something It’s not always rational. Tom Wicker, a "waving at my rights," as a Texan with The biggest hurdle is the djffidence of former editor of the New York Times, held retardation recalled. Then, with theclick himself responsible for the deaths of many those who regularly work with people of handcuffs, they are taken away from prisoners in the Attica prison uprising. In A having retardation. It is easy to blame the everything that had been safe and Time To Die, he describes how prisoners system for being insensitive, Then we familiar to them. They are placed in asked him to representthem in thc mediation become intimidated by them and don’t rooms where investigators work them to sessions. And so, he went to the meetings try to advocate. Court liaison work is exhaustion, trying to "get something out and openly discussed criticalsituations with exactly like any other form of advocacy. the of them." Because persons with retarda the authorities. Later, after many of The rules are identical: Do your prisoners were killed, he blamed himself for homework. Know the problem better tion want so much to be accepted by assuming the system was rational. It was not. others, they often try hard to give the than they do. Know some of the solu investigators what they want - even Sentencing practices can be arbitrary, dis tions. Realize that some folks inside of though it will be used against them later. criminatory and generally unprincipled - the system are frustrated and they will No matter whether they are guilty or in often governed by the subjectivity of the welcome you and your expertise. nocent, they open themselves up to in judge and influenced by the current vacillat vestigators in ways TedBundy, Jean Har ing public feeling about any one given of The first step is educating thepolice and ris and Claus Von Bulow would have fense. the courts. I do everything I can to or for training the police, nevereven thought of doing. It is far easier to get into the system than to ganize programs lawyers andjudges - even getting them getout. Chalk this fact up to all the egos and ‘ Friends and helpers can be concerned, territories that get involved. to carry wallet cardsthat list helpful hints but when they encounter the imposing and the local disability agencies on call facade of the criminal justice system and Some system members, nevertheless, are to them. In my experience, officers who its magical language, they feel in educable. More often than not, they are can recognize and delineate disabilities timidated and back off. They are some eager to do right, to team about the people become ambassadors and have been how led to feel they’re not needed they are dealing with, and to be inventive in amazingly helpful in avoiding inap theirjobs when they have the right guidance anymore. Nothing may be further from and persuasion. propriate arrests. Community level the truth, says Dolores Norley. This judges, if approached, will often wel with local people Florida mother of a son with retardation, When persons with retardation enter the come conferences on professor of communication, lawyer possibilities for special programming. a system it is not just a crisis, it is usually and a police trainer, believes that "the a disaster. In all of my years in this field, work with persons having best interveners will always be people have Those who who have actually I never seen one of these persons retardation need educating, too. An ex worked with persons improved by imprisonment. having retardation." ample: A teenager with retardation went ask if a recent Excepting those arrested for murder, to his teacher at school to thegenitalia of ayoung Norley, since theearly 1950’s, has taught rape and child abuse, the system usually activity fondling at police academies, logged many hours boy was okay. The teacher sent him to would like to spit out people having called the riding in patrol cars especially in how. the counselor. The counselor visited retardation, but it doesn’t know The young man was given 30 Chicago, voluntarily numerous Thepolice, attorneys andjudges have set police. prisoners with retardation in their cells, years in the penitentiary even though things they must do - even if the person average five written training manuals for officers, at with the usual rapists in Florida only torneys and judges, and retardation doesn’t fit The judge did it because he had helped to criminal mold. That’sprofessionalism. years. develop laws that protect persons with suddenly become horrified by thecurrent sex act cases. retardation. Psychiatrist are dear to the heart of the mushrooming of courts. The courts were long ago in The following are selected excerpts from timidated into accepting them as the When other prisoners saw the young man her speeches and papers. as a potential sex object, he requested authority for practically everything. We amounted to as never before need educational and protective custody. That The criminaljustice system is a confusing lived being in absolute isolation - no radio, partly because psychological evaluators who have he can’t read place. That’s true thesys with and understand persons with retar no reading material tem itself doesn’t know what it is about: anyway, no exercise, no meals outside dation. his cell. At the time, he was 18 and flab It is torn between rehabilitating, punishing by. When we tried to get him into a sex Finding a person incompetent to stand anddetening people. One court can act like offender program he wasrefused because John Wayne, another like Mother Theresa trial may not always be a good thing. It "he has less than normal intelligence." - for the same crime. One judge can have could lead to a lifetime of incarceration

JUNE 1991/The Advocate 64 When I visited, theguards put handcuffs on him and two armed guards stood out COURT TO DECIDE W EARL WASHINGTON side his cell door. Handcuffs are rough TRIED TOO HARD TO PLEASE COPS when you are wiping away tears.

Whether he is acase of truepedophilia or we A man with mental retardation may have followed the "leading" of investigators so well he was a case of situational sex play, may sentenced to death for a crime he probably did not commit. Defense attorneys EricM. Freedmanand never know, Soon he may either go mad Robert T. Hall came before the 4th Circuit Court of Appeals [in Wahingon v. Vzrginw andstated with the isolation, or become so that 30-year-old Earl Washington Jr. did not rape and murder Rebecca Lynn Williams in Culpeper, desperate he will be willing to go on the Virginia on June 4, 1982. Freedman,arguing the case before a three-judge panel, said the conviction compound and accept the protection of a was based solely on a confession with details supplied by the police. "lover." Judge J. Harvie Wilkinson 111 asked if Washington’s role was "purely a passive role... or did he We must train more of us in the field to actually supply concrete details about the perpetration of this crime?" "It was purely passive," said be assertive interveners. Judges will Freedman. "Are you saying he had words put in his mouth?" asked Wilkinson. "That’s what I’m saying, Judge," said Freedman. But he added that he didn’t believe police were trying to "railroad" change. Prosecutors and public Washington. He said they simply may have believed Washington was holding out on them. defenders will go on to cushyjobs in big firms. Only the advocates will remain Rebecca Williams had been raped, stabbed and found lying in the doorway of her apartment. She constant. We must get the parole boards died two hours later at a local hospital. According to the police, a witness reported seeing aman with facts aboutretardation as well. near the Williams apartment on the morning of the murder. He wasdescribed as "a black male with a beard," dressed in a white sleeveless t-shirt and faded blue jeans. He had "extra large muscles in Almost always, I work as an intervener the chest, arms and upper back areas." Based on the eye-witness account, a composite picturewas with no status. But I am always wel published in the July 3, 1982 Culpeper Star Exponentandthe police focused on alocal suspect who fit the description. comed. It works because the courts are desperatelylooking for anyhelp they can Washington was not implicated in thecase until almost ayear later. OnMay21, 1982, he wasarrested get. in Warrenton, 20 miles northeast of Culpeper, for breaking and entering a home and for assaulting his brother-in-law. His arrest came in themorning after he hadbeen up all night. He had been dnrnk. Recently, I went into a court and intro And yet, according to the defense, "Washington, mentally retarded with an IQ of 69 and sleepless duced myself as a person with no status the night before his arrest, was interrogated at great length that dayand the next." - except for 33 years of experience in the field of retardation. The judge Although the initial charges were dropped, Washington "waived his Miranda Rights" and "con said, fessed’ to "Thank God! Doyou have a card? I have a number of other crimes, including the rape of a Warrenton woman. After initial investigations, all officials concurred later that he couldn’t have done anyof these local crimes. a few other cases I want to talk to you According to an officer’s notes taken latein the first day of interrogation,"Earl still seemed nervous about." as though there was still something elsebeing kept from us." Aftersomeprobing, the officer spoke bluntly: "At this time I asked Earl, ‘Earl, did you kill that girl in Culpeper?’" Earl "shook his head Early diversion is crucial. Persons with yes and started crying." Later the officer said, "Earl, I mean the woman you stabbed in Culpeper" retardation need to be helped out of the Washington said yes. lie made no mention of rape. Even the officer didn’t know at the time that criminal justice system and placed into she hadbeen raped. During thelaterinterrogations--with Culpeperpolice taking part--Washington alternative arrangements as early as pos usually proved to be wrong any time he volunteered facts: sible. We need to pay heavy attention to He said Rebecca Williams was black. The officers corrected him. She was white. first appearances, preliminary hearings He said shewas "kind of short." She was5’8". and arraignments. Sentencing hearings Re said he kicked in thedoor. The door wasn’tdamaged. are important, too. If we can offer alter When asked how many times he stabbed her, he wasn’t sure, perhaps oneto three times. She was native programs, many courts will jump stabbed38times. at the chance to try them. He said nobody else was around. And yet, police arriving shortly after theevent founda baby in a playpen just inside the door. And standing beside the playpen was the victim’s three-year-old But we need the alternatives. The sad daughter. fact: Nine outof theten times it is the While his confession was being typed, officers drove Washington to apartment complexes lack throughout Culpeper. When they amvedat the crime scene, Washington failed to point it out. They alternatives - not the of nastiness of the drove away, then returned later. Again Washington failed topoint to theapartment where the crime court - which sends our people to had taken place. They drove away and returneda third time. This time, an officer said "Earl, isn’t miserable incarceration where they are that the place?" He said yes. the prime victims of others there. We must create alternative programs.

Item: Norley hasdeveloped succinct, easy-to- [In his affidavit, defense expert, Dr. John N. Follensbeej statedthat Washington did not understand understand guidelinesfor criminaljustice per his Miranda Rights. "Mr. Washington not only did not understand the point of thepolice advising sonnel in Florida. For a free copy, send a him of his rights, he did not understand the concept of rights--a concept which requires very little SASE Self-addressed-and-stamped en capacity for abstraction." He also saidThat the stress caused by a sleepless night andlong interroga velope to: Dolores Norley, 529 North Sans tions "would have induced a condition of absolute compliance and utter reliance on the interviewer Souci Ave., DeLand, FL 32720. for appreciation of results." ROBERT PERSKE ‘EarlWashington is mentally retarded andcan’ttell you thecolors of theflag, or what a thermometer does," said Freedman "but he has been sentenced to death.. .He’s simply innocent.., retardation 159 Hollow Tree Ridge Road doesn’t only mean you don’tknow things. It also meansyou try and conceal [retardation]." Darien, Connecticut 06820 203 655-4135 Follensbee, in his affidavit, showed how Washington compensated for such a conceahnent: "This man is easily led. Out of his need to please and his relative incapacity to determine the socially and ‘Robert Perske is an author andjournalist personally appropriate behavior, he relies on cues given by others and a reflexive affability. These with a special interest in what happens to are his only apparent adaptive skills. It wasmy impression that if on the evening of his execution persons with mental retardation and the electric chairwere to fail to function, he would agree to assist in its repair." si’nilardisabiiziesafterthecri’ninaljisszice system gets them." Therehas been no decision in the case to dale. From newsletter published by Robert Perske. Reprinted by permission.

JUNE 1991 / The Advocate 65 Involuntary Civil Commitment Materials

Topromote improved representation for where the state’s attorney’s considera disposition of the case, They address the persons with mental illnesses subjected tions differ significantly from those of following areas: the foundations of in to involuntary civil commitment, the therespondent’s counsel. Topics include voluntary civil commitment; the or American Bar Association’s Commis thepartyies being represented; political ganization and administration of pre sion on the Mentally Disabled has factors; special pre-hearing activities; hearing screening; detention and custody developed a training package for lawyers and post-hearing issues such as appeals of persons by law enforcement officers; andjudges. This package has four com and periodic review hearings. mental health examination, treatment ponents: a manual; guidelines for in and disposition before court hearings; voluntary civil commitment systems; a The Judge - comprehensively examines legal representation; court hearings; judi video; and a two-day workshop. thejudge’s role andresponsibilities from cial determinations and case disposi the point of view of ajudge who handled tions; and post-hearing matters. The INVOLUNTARY CIVIL hundreds of civil commitment hearings. Guidelines provide the basic framework COMMITMENT: Topics include administrative issues for the advocacy approach to repre A MANUAL FOR LAWYERS AND such as calendars, courtroom decorum sentation. JUDGES andconfidentiality; judicial perspectives on conduct ofthehearings; anddisposi CIVIL COMMITMENT The comprehensive manual introduces tion determinations, including treatment TRAINING WORKSHOP an approach that encourages lawyers and alternatives. judges to become involved before the To teach the advocacy approach to civil commitment hearing, using pre-hearing Appendices - provide two useful tools: a commitment representation using the screening, negotiation and diversion into general involuntary civil commitment in manual, theguidelinesand the video, the less restrictive alternatives to reduce the terview and strategy form; and 40 pages Commission has developed a two-day number of full court hearings. The of charts of selected statutory provisions workshop using a detailed hypothetical manual is divided into five parts. in the nation’s 51 jurisdictions. case to takeparticipants through thecivil commitment process. Through small Introduction - a concise overview of The manual, which is 136 pages typeset group activities, participants follow the civil commitment practicesand an orien in an 8 1/2" x 11’ bound format with case from thepre-hearing phase through tation to the manual, cover, is available for $30. Orders of 10 the hearing, where strategies for using or more are $20 per copy. witnesses arediscussed and participants Respondent’s Counsel - the manual’s role-play somedirect andcross-examina largest section with a step-by-step guide COMMITMENT TO ADVOCACY tions. The hypothetical case is followed for attorneys with clients facing commit through its conclusion in the court and ment, discusses: therole of respondent’s This 10-minute VHS-format videotape into counsel’s post-hearing respon counsel - the best interest v. advocacy introduces the kind of advocacy the sibilities. Two panel discussions address models; procedural and due process is Commission endorses and highlights the specific practices in thejurisdiction. sues; pre-hearing preparations, including someof themanual’s majorpoints. Com interviewing the client and other parties mentary from leading experts - ajudge, a To facilitate conduct of this workshop with a sample interview format and law professor, a practicing attorney and across the country, the Commission has preparing theclient and witnesses; hear members of the mental health com developed an instructor’s manual to ing issues, including notice, scheduling, munity - underscores the importance of enable local trainers to use these locationof thehearing, the client’s atten theadvocacy role for respondents. materials to conduct the workshop by dance, theeffects of medication; the con themselves. The Commission also has duct of the hearing, including motions, The National Center for State experienced trainers who will present documents, direct and cross-examina Courts’ Guidelines for Involuntary and help organize the workshop with tion, expert witnesses and the closing Civil Commitment Commission staff support on a request argument; and post-hearing respon basis. sibilities, including appeals and other These 50 practical guidelines provide procedural and administrative options suggestions for improving a FOR MORE INFORMATION for relief. jurisdiction’s involuntary civil commit ment process without extensive statutory For more information about the State’s Attorney - addresses the civil reform. Theresult ofa multi-year project package’s components and the various commitment process from the point of that investigated a number ofstates’ civil packages designed to meet the needs of view of the attorney who represents the commitment practices, the guidelines professionals in a range of situations, interests of the state or the petitioner. follow the typical involuntary civil com please contact the Commission at 1800 Building on the respondent’s counsel mitment process, from thepetition or first M Street, N.W., Washington, DC 20036, section, this discussion identifies areas contact, through the hearing and into the 202 331-2240.

JUNE 1991/The Advocate 66 ASK CORRECTIONS Sentencing in Kentucky

.

TO CORRECTIONS: ses and sentenced to a term of years. These individuals parole eligibility dates I have two clients who have been con will be re-calculated pursuant to the Of- victedof Murder, one whoseoffense was furl Decision by requiring twelve 12 committed prior to Februray 15, 1991, years to serve for parole eligibility in and one whose offense was committed stead of fifty percent of the sentence im after Februray 15, 1991. Both clients posed. received a one hundred 100 year sen tence. In light of the recent revision of TO CORRECTIONS: KRS 439.3401 by adoption of HouseBill 7, what will be the differentiation be In order to prepare for an upcoming court tween my clients parole eligibility? date it is necessary that I have a certified copy of somedocuments which arein my TO READER: client’s institutional file. What do I need SECTION 13, to do? KENTUCKY CONSTITUTION House Bill 7 was adopted by the General Assembly and became effective TO READER: No person shall, for the same of February 15, 1991. Therefore, for the fense, be twice put in jeopardy of Capital Offense of Murder committed You may request certified copies of his life or limb, nor shall any after July 15, 1986 and prior to February documents in an inmates’ file from the man’s property be taken or applied 15, 1991, your client would serve twelve Offender Records Office. In order to 12 years before parole review minus meet themany requests that theOffender to public use without the consent jail time credit, pursuant to theopinion of Records Office receives concerning cer ofhis representatives, and without theSupreme Court of Kentucky, Offutt v. tified copies of documents from Com just compensation being pre Commonwealth. For theCapital Offense monwealth Attorneys, defense attorneys viously made to him. of Murder committed after February 15, and other criminal justice agencies in a 1991 your client’s parole eligibility timely fashion, please indicate thedateof would be calculated by taking fifty per the hearing, the name of the client and cent 50% of the sentence imposed client’s institutional number, if known. minus anyjail time credit.

TO CORRECTIONS: Warren Piece b Jn Wr’er My client was convicted of Murder in 1989 and sen tenced to fifty 50 years in prison. The Corrections Cabinet has calculated his parole eligibility date by re quiring him to serve fifty percent 50% of his sen C- tence, or twenty-five 25 years. When will my client’s parole eligibility date be re This regular Advocate column responds calculated pursuant to the to questions about calculation of sen opinion of the Supreme tences in criminal cases. Karen DeFew Court of Kentucky, Juan Of- is the Corrections Cabinet’s Offender fun v. Commonwealth. Records Administrator. For sentence questions not yet addressed in this TO READER: column, call Karen DeFew, 502 564- 2433 Dave or Norat, 502 564-8006. The Corrections Cabinet is Send questions for this column to Dave in theprocess of re-calculat Norat, DPA. 1264 Louisville Road, ing parole eligibility dates of Frankfort, KY 40601, Reprinted by permission of Jim Warren and the Lexington Herald those individuals who were -Leader. convicted of Capital Offen

JUNE 1991 / The Advocate 67 BOOK REVIEW

The Geometry of Violence and Democracy by Harold E. Pepinsky Indiana University Press Bloomington, Indiana 1991 $24.95

THE VIOLENCE OF CRIME AND acting in violent defense of himself and Therein lies the radical application of PUNISHMENT his friends by marching relentlessly Pepinsky’s theory to our work as through courts or grievance committees defenders of those who stand criminally Harold Pepinsky’s book, The Geometry to force others to relinquish power. In accused. of Violence and Democracy, describes support of these exceptions to his general how Pepinsky, a criminologist, came to belief that violence must be met with Pepinsky sees that the greatestchallenge see crime and punishment as synon responsiveness, Pepinsky turns to of resisting violence lies in creating ymous forms of violence which rise and Mahatrna Gandhi. Gandhi, Pepinsky as democracy to take its place. In one fall together as systems of power are serts, recognized the principle that noteworthy line he states, ‘Democracy concentrated and dissipated. According violent resistance is sometimes less evil begins when the warrior begins to show to Pepinsky, the distinctions between than letting greatervi olence go unabated. mercy." Pepinsky is not afraid of words crime and punishment are a figment of Pepinsky accepts the principle that like mercy. In his view, becoming political partisanship -- a matter of who violent defense is justified where one democratic means investing in defines the situation. Pepinsky believes succeeds in minimizing the force neces friendship, rather than investing in that it is morally and epistemologically sary to make peace. wealth and power. One is less likely to unacceptable for a criminologist to ac hurt someone with whom one has had a cept these distinctions. PASS IT ON compassionate relationship. Thus, more democracy means less violence. VIOLENCE IS Why does violence beget violence and UNRESPONSIVENESS why is crime only a form of violence This book is food for so much thought. It given definition as "crime" by those in must be reread, analyzed and applied to Pepinsky believes that responsiveness is power? Pepinsky anecdotally recalls the uncoverits full value. I conclude my own the antithesis of violence. Thus, violence childhood game of "pass it on.’ In this inadequate discussion of his work with is unresponsiveness. Violence arises game onechild punches thechild next to Pcpinsky’s own reflections. "1 have so when people or institutions are unrespon him and says pass it on.’ little hope about punishing ourselves out sive to the needs of those affected by a of crime. I am so cynical about the mo particular action. Pepinsky asserts that Law-and-order politics plays the same tives of politicians who declare war on the punishment oursociety metes out for game.Rather than respond to disorder by crimes. . .1 came to criminology believing criminal behavior is unresponsive both to trying to restructure situations to help that crime was a behavior, and trying to the pain of the victim and to the criminal everyone be more responsive and com find it and defineit.! now understand that behavior of the accused. Therefore, the passionate, those with some measure of crime is at root a relationship among punishment itself becomes yet another power, tend to descend into violence by human spirits." form of violence. passing disorder onto persons weaker than themselves and less able to ‘pass it Reading Pepinsky’s work may help us, Pepinsky’s book, published this year, back." Theresult is relatively powerless, as public defenders, recognize the deeper contains six chapters in addition to an poor, angry, young men who "pass it on" more systemic consequences of our introduction and conclusion. It is an in to their even less powerful wives and work, Are we creating a democratic jus credibly dense literary work. He applies young children. tice system or furthering systemic his theory of violence as unresponsive violence? Pepinsky’s words encourage ness to nations in unrest, to a criminal RESPONSIVENESS IS me to do the former, to choose respon defendant’s sense of justice, to the need DEMOCRACY siveness overviolence. for citizen involvement in policing our communities and to parents’ relation In Pepinsky ‘s theoretical framework, BECKY DILORETO ships with their children. responsiveness is democracy. Violence Assistant Public Advocate can be relieved only by giving people the Appellate Branch RESPONSIVENESS DISARMS sense that they influence the events that Frankfort VIOLENCE shape their destiny even if they cannot absolutely determine those events. By Pepinsky defines responsiveness as virtue of such realizations we give doing things with people ratherthan to or workers a voice in the workplace and for people. If we want to dissipate or citizens voice in a commonwealth. In like disarm violence, we must do so by being manner, victim and offender together are responsive. better qualifiedto decide how to respond to crimes than judges. Pepinsky recognizes that he does not al ways live by this credo. He writes of

JUNE l99lJThe Advocate 68 Book Review Critique ofThe Geometry of Violence and Democracy

BILL CURTIS

Pepinsky, in his book, The Geometry of of socialpathology or social disorganiza For Durkheim crime waves were related Violence and Democracy, Indiana tion. In other words, very high rates of to his idea that communities are circled University Press, Bloomington, 1991, crime constitute crime waves. with several kinds of boundaries or bar $24.95 makes the claim that he is Durkheim did not use the term crime riers which make them resistent to developing a new theory of crime and wave, instead he talked abo9 upsetting change. Communities occupy a certain violence which mightpossibly supersede the equilibrium of society. Near the geographical space or territory. Com the Durkheimian perspective. The dif end of chapter two Pepinsky agrees with munities are able to accommodate a cer ficulty with this claim is determining Durkheim in concluding that ‘crime is tain level of population density. Each what is meant by the term Durkheimian normal because all ofus commit so much community has its own commonly ac perspective. Readers will not discover of it." cepted rules, values, beliefs, sentiments the answer this mystery in Pepinsky’s and laws. In other words, Durkhiem ar latest book. Pepinsky’s book is some On the phenomena of crime waves and gued that members of a community oc what confusing because it contains some their causes the two theorists arebasical cupy a certain cultural and social space. internal inconsistencies, his theoryis not ly in agreement. As mentioned above, a Crime waves result when a community’s new, andhis ideas areremarkably similar crime wave occurs when the rateofcrime boundaries experience expansion. This is to thoseof Durkheim. or specific type of crime reaches alarm usually a crisis situation for a com ing levels. Pepinsky suggests that crime munity. Emile Durkheim 1858-1917 was a waves result from a combination of fac French sociologist and philosopher. tors, such as wars, population explosions, For example, a nation’s territorial boun Nearly all of his works, considered to be birth cohorts moving into adult status, dimes could expand as a result of war. classics in social theory, were written in and change in type of leadership. The population boundaries would ex French and later translated into English. pand as a result of a significant net Volumes have been written by numerous authors attempting to make sense out of Durkheim’s theoretical constructs and A bubble of propositions. Taken together, Durk recognized crime heims’s works make up a grand theory which attempts to explain and predict social change, social A molecule of organization, and democratic interaction social control. He is generally creditedas A bubble of being the father of an entire school of recognized violence sociological thought called structural- functionalism.

The first inconsistency which should be noted is Pepinsky’s claim that his theory constitutes a new approach to the study of crime and violence. The implication is that he is breaking new ground with his concepts of responsiveness, account ability, compassion, and democracy as the antithesis of crime and violence. Pepinsky contradicts himself when he admits in chapter three that all of these conceps are basic principles of Chris tianity. The NewTestament was written nearly two thousand years ago. DIagram 4: The Schiegel Vat of Violence Early in hisbook Pepinsky argues that his = system theory could constitute a departure from OXYZ = the Schiegel vat of violence any social Durkheim’s proposition that crime is X = intensity of violence normal, Durkheini did say that a certain Y prevalence of violence amount of crime exists in every society Z = duration of violence and that a certain amount of crime is 0= bottom of glass structure normal. But, he also said that crime is abcdefgh = social interaction exogenous to the social sys abnormal or pathological when its rate is tem plus formal social control initiatives on the social unusually high. For Durkheim, an tin- system usually high rate of crime is an indicator

JUNE 1991/ The Advocate 69 population increase. Durkheim also dis Another parallel between the work of BILL CURTIS cussed the problems caused by birth Pepinsky and Durkheim concerns ChiefResearchAnalyst and Statistician cohorts maturing to adulthood and its Pepinsky’ s concept that unresponsive Administrative Division members moving in to take over posi ness leads to violence and the antithesis Frankfort tions of institutional authority. Boundary of violence is responsiveness. Durkheim expansion means that different popula expressed the idea of unresponsiveness FOOTNOTES tions will mingle. Beliefs, values, senti leading to vilence in his book, Moral ments, and laws will no longer be com Education. In a discussion on Harold E. Pepinsky. The Geometry of monly agreed upon. Cultures will b in colonialism, Durkheim pointed out that Violence in Democracy. Indiana Univer conflict and crime waves will result. powerful, authoritarian governments of sity Press: Bloomington, Indiana, 1991, European nations frequently subjugated p.11. Pepinsky and Durkheim are in agreement and dominated their defenseless, "primi on the issue of white collar crime. tive" colonies. Violence very often 2 Ibid. p.32. Pepinsky points out that persons of status erupted between the powerful European and wealth who commit crimes arc far nations and their colonies, a perfect ex Emile Durkheim. The Rules of the more dangerous than one who commits ample being the American Revolution. Sociological Method. The Free Press: murder. For example, the dumping of On the issue of responsiveness in The New York, 1982, p.98. Translated by toxic waste near subdivisions, selling Rules,9 Durkheim argued that as respect Steven Lakes. Originally published in TOW missiles to Iran and Iraq, and il for individual dignity increases, crime 1895. For an excellent piece of historical legal shipment of military weapons to and violence decreases. research grounded in Durkheim’s rebels in Nicaragua are far more serious theoretical framework see, Kai T. Erik offenses than those committed by the In chapter five, Pepinsky presents his son, Wayward Puritans: A Study in the ordinarymurdererwho is usuallywithout model of tetrahedronal interaction. See Sociology of Deviance. John Wiley and private means to defend himself/herself diagram 4. The diagram is an inverted Sons, Inc.: New York, 1966. in court. In anera when fewpeoplerecog tetrahedron floating in a vat of viscous nized the fact, Durkheim wrote about the fluid. The tetrahedron consists of two 4Pepinsky, p.32. disastrous consequences of white collar helixes touching end to end. The double crime. He argued that economic crises helix is the basic molecule of life, the 5Emile Durkheim. The DivisionofLabor often brought about by economic fraud, DNA molecule. For a discussion of how in Society. The Free Press: New York, such as bankruptcy or a stock market this model explains the incidence of 1984. p. 229-244. Translated by W.D. crash have far more serious consequen crime and violence, readers are urged to Hall. Originally published in 1893. Also ces for sgciety than does a single act of read the book. Suffice it to say here that see Erikson for a discussion of the crime murder. A present day example would Pepinsky’s tetrahedronal model is an waves in Massachusetts in the 17th cen be the nationwide Savings and Loan analogy based on chemistry andphysics. tury. scandal. Although somewhat ambiguous, 6jbid p.33. Pepinsky’s and Durkheim’s views on Durkheim used similar kinds of ana punishment are not seriously divergent. logies nearly one hundred years ago to See Karl Menninger. The Crime of They both arguethat the criminal justice explain some of his theories. hi Suicide, Punishment. The Viking Press: New system has one type of justice lenient he wrote about physio-chemical forces York, 1968. for people of status and wealth and which could be measured like electric another type for people of low status and currents. He suggested that within each Emile Durkheim. Moral Education. without means harsh and repressive. person there is a collective force with a Trans. Everett K. Wilson and Herman Nothing in Durkheim indicates that he certain amount of erergy which leads to Schnurer. New York: Free Press ofGlen was in favor of penal sanctions or sys self-destruction. In The Rules, coe, 1961, p. 161. Originally published tematic repression as theproper response Durkheim noted that the collective con in 1925. to crime. He consistently maintained that science must have only a moderate only institutional change could attack the amount of energy in order to be flexible Emile Durkheim. The Rules of the causes of social pathology. and open to social change. Sociological Method, p.100. For another interesting discussion of responsiveness, Both theorists stress the fact that punish Without noting further similarities, it can compassion, accountability, and demo ment meted out to members of the under be concluded that Pepinsky’s theory of cracy as the antithesis of crime and class is usually not in proportion to th crime and violence is not new, nor is it violence. See, George H. Mead. "The nature of the offense committed. radically different from theDurkheimian Psychology of Punitive Justice." The Pepinsky makes this point clear in his perspective. Careful reading of Durk American Journal of Sociology, Vol. 23 discussion of State ofIndiana v. William heim will reveal that his theoretical 1917-19 18, pp.571-602. Mead was an T. Breeden, CR 87-75, Daviess Co., framework covered a wide range of ideas American social philosopher and social 1986-87. This case involved a man who on crime and violence. The value of psychologist and a contemporary of stole a street sign honoring the Presi Pepinsky’s work is that he presents his Durkheim. dent’s deposed National Security Ad theory in a far more explicit and cogent visor, John Poindexter. Because he felt fashion than does Durkheim. The dif 10 Emile Durkheim. Suicide. Translated that naming a street after Mr. Poindexter ficulty withDurkheims’s work is that his by John A. Spaulding and George wasinappropriate, Mr. Breeden removed concepts and propositions are highly Simpson. Glencoc, ill.: Free Press, 1951, the sign. For theft of the sign, Mr. abstract, somewhat implicit, and difficult pp.229, 309-10. Originally published in Breeden was charged with a felony, con to understand. 1897. victed, and sentenced to twelve months in jail with all but eight days suspended, I highly recommend reading Pepinsky’s 11Iurtheim. The Rulesof the Sociologi eighty hours of community service, and book. It will definitely cause readers to cat Method. p. 101. one year probation. John Poindexter did reevaluate their own views on the causes not servea single day in jail for his invol of crime and violence. vement in the Iran Contra scandal,

JUNE 1991/The Advocate 70 TUE

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JUNE 1991 / The Advocate 71 STAFF ATFORNEY NEEDED AT FUTURE SEMINARS INDIANA PUBLIC DEFENDER COUNCIL

STAFF ATFORI{EY sought by State 1991 1992 support center for lawyersrepresenting indigents in criminal cases. Attorney KACDL DUI SEMINARS AOC CIRCUIT JUDGE JUDICIAL would write manuals, and provide oc Louisville, Lexington, Frankfort, COLLEGE casional researchconsultation andtech Covthgton January 12-16. 1992 nical assistance to trial lawyers. July 12, 13415 and other times and Lexington Knowledge of criminal and constitu places in July tional law required, as are strong re Contact:: Linda DeBord at 502 244- DPA ANNUAL CONFERENCE search and writing skills. Applicants 3770 May3l-June2, 1992 should have commitment to protection Lake Cumberland State Park of individual rights and criminal AOC DISTRICT JUDGE’S JUDI defense. Criminal trial experience and CIAL COLLEGE KBA ANNUAL CONVENTION experience with personal computers September 22-26, 1991 June 3-6,1992 are a plus. Position is newly created. LakeCumberland Lexington Starting salamy is $30,000. Send resume and writing sample by June21, 1991 to: DPA DEATH PENALTY TRIAL DPA TRIAL PRACTICE IN PRACTICE INSTiTUTE STITUTE Larry A. Landis, Executive Director November 3-8, 1991 October 11-16,1992 A1TN: StaffAttorney Position KY Leadership Center Kentucky Leadership Center IndianaPublic Defender Council Faubush, KY Faubush,KY 309 W. Washington St. Suite 401 Contact:Ed Monahan at 502 564-8006 Indianapolis, IN 46204-2725 NLADA ANNUAL CONFERENCE October 28-November2, 1991 Portland Oregon Contact: Bill Bitely at 202 452-0620

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