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6-1992
A Sleeping Giant: §2 of the Kentucky Constitution
Allison I. Connelly University of Kentucky College of Law, [email protected]
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Repository Citation Connelly, Allison I., "A Sleeping Giant: §2 of the Kentucky Constitution" (1992). Law Faculty Popular Media. 24. https://uknowledge.uky.edu/law_facpub_pop/24
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Notes/Citation Information Allison Connelly, A Sleeping Giant: §2 of the Kentucky Constitution, 14 The Advocate Newsletter 115 (June 1992).
This newsletter is available at UKnowledge: https://uknowledge.uky.edu/law_facpub_pop/24 Ii June, 1~2 Volume)5," Number 4 THE ADVOCATE ,q M.l( ------The Kentucky Department of Public Advocacy's Journal of Criminal Justice Education and Research
'I'T PUBS OEPT~
-~ ~~ --.-.-!:;,~::-~~-: - lilnW -:...:;~ Rcprirued b'j permi:ssioo of Des Mo:irJes Rqisur and ArtiSl.
Our Specialty is Criminal Defense Litigation 20th Anniversary The Kentucky Department of Public Advocacy (DPA) is a state· wide public defender program that was established at the recommendation of Governor Wendell Ford by the 1972 Kentucky General Assembly. There are over 100 full-time public defenders in 16 offices across the stale covering 40 Department of Public Advocacy counties. Anotber 2S0 attorneys do paIl-time pobhcdefender work in 80 ofKenmcky's 120 coun ties. IPA is an independent agency located within Ille state's Protection and Regulation Cabinet fo r adminisnative purposes. A Pnblic Advocacy Commission oversees Ille Department. Yearly, DPA represents in excess of 101,000 poor citizens accused of crimes for offenses rnnging from DUr to 1972-1992 capilal. mmd.... Day in and day OUI our attorneys and staff tmng life to the individual liberties guaranteed by our United States and Kenmck:y Constitutions" The Kentucky Depamnent of Public FEATURES Advocacy is Kentucky's Statewide FROM THE EDITOR: public defender program dedicated to CHAPTER 1: 4 providing high quality legal repre We see ourselves as standing out in all ofhtstory as a people who cherisb and protect GEORGE NICHOLAS, FA'lliER OF KENTIJCKY'S BIlL OF RIGHTS by Dr. Thonu.s B. Clark 6 sentation for Kentucky's citizens freedom more than any other people. Our individual freedoms are insured through TIlE TEXT OF TIlE KESTUCKY BIlL OF RIGHTS 1792, 1799, 1850 8 who are poor and accused ofcommil ling a crime. our Bill of RIghts of our United Slates Constitullon and subsequent coostitutiOllal CHAPTER 2: 11 amendmentS like !he 14th amendment with its due process and equal proteCtion righlS, and through the Bill oj Righcs of our Kenmck} ConstitutIOn. December 15. TIlE KENTIlCKY BIlL OF RIGIfTS by Dr. Thomas O. Quit . J3 Over 10 1,000 Kentucky ci tizens are 1992 is lhe 201sl Anniversary of the United Stales Bill oj Righls. September 28, TIlE BIlL OF RlGIfTS: OLD LESSO~S A. -0 l\EW CHALLEKGES by Professor Qarles J. Ogleuee 17 served by the Department each year 1992 is the 101st Armiversary of the KenlUcky ConslilUJion's Bill ojRights . TIlE U!'.TIED STAlES SUPRE.\ffiCOURT in an effon to insure advocncy rool TIIE MOST PRECIOUS BA TILE PLA.": TIlE BIlL OF RIGIfTS by Judith G. Cl.he, . 21 ing oUI injuslice. GEORGE MASON, FATIlER OF TIIE UNITED STAlES CONSfmJTlON by JudgeJolm D. Miller 24 SPECIAL RECOGNITION AND A LmERTY RESOURCE CHAPTER 3: 38 The Advocate is a bi-monthly publi 1ltis very special issue of our magazine celebrateS !hese defming values, reminds us USING KENTUCKY'S BILL OF RIGHTS IN' CRIMINAL CASES by Frank Heft 31 cation of !he Depanment of Public of the historical reasons for the development of!hese precise individual protections, Advocacy, an independem agency STATE CONSTITUTIONAL LAW CASES REPORTED, 1987- 91 _ and brings together rich resources and thinking for current and future use by wi!hin the Public PrOieclion and SfA'ffi CONSfffUfIONS AND THE CRIMINAL DEFEKSE LAWYER by 101m H. Hmgsoo ill 35 Regulation Cabinet. Kenmcky's criminal justice system and by Kentucky's leaders and leachers. We USING KE~-n;CKY ' S SECllON 10 by Emie Lewis 40 know of no current Kentucky resource of this magnilude which brings together so USING KE~-n;CJ(Y ' S CONSfmmON TO CHALLENGE EVIDENCE PRACllCES 44 much inforrruuion on our liberties. In addition [0 our regular criminal juslice readers. by David Niehaus ' . Opinions expressed in articles are this issue of our magazine goes to every Kentucky school, over 1,000. Hopefully, it 1lI0MAS JEFFERSON MIDDLE SCHOOL AND TIlE BIlL OF RlGlrrS , 51 those of the authors and do not nec 52 will be used for many years as a ready resource for our education system. Togelher, LRC:. 1981 SPECIAL COMMISSION OF CONSTITUTIONAL REVIEW'S BILL OF RlGHTS RECOME. DATIONS essarily represenl!he views of DPA. INTERPRETING TIIE CONSTITUTION 68 we need to work 10 remind ourselves and to remind the future beneficiaries and implementers of !he origin and imponance the guarantees of our fundamerual CHAPTER 4: 69 freedoms. The AdvOC01e welcomes COrrespon THE FIRST A.\iEl\1)MENT AND TIlE CRNINAL Jt:STlCE SYSlEM by Roy Moore 70 dence on subjects covered by iL If CHAPTERS: 71 you have an article our readers will WHE IS LmERTY MOST AT STAKE? Imd of interest, l}pe a sbon outline or 1HE RlGHTTO lESTIFY: TIIE NEWEST RIGHT by Tonodty P. O'Neill 79 The raw power ojgovernmem vs. a person's libeny takes on ilS moSI dramatic baule general description and SCIld it to the CHAPTER 6: UVI. rUt. u~, I gs Edi tor. when the state. wough a prosecutor, seeks 10 imprison or kill a fellow citizen for conduct claimed to be criminal. The extent to which that criminal process is fair is TIlE COMPl.jLSORY CLAUSE by Edward J. Imwinke1ried 86 the extent 10 which we really yalue libeny in our society. Copyright © 1992, Depanmem of CHAfTER 7: 92 Public Advocacy. All rights reserved. WHO IMPLEMENTS OUR RIGHTS? J LJ I 2 3 1992 No pan may be reproduced without DOUBLE JEOPARDY by RobSulon 93 written pennission from DPA. Per paper CHAPTERS: 98 mission for separately copyrighted Rights on are meaningless. They must be put into effect by someone. A criminal UNIVERSi lY defense auomey or a public defender slands representing a citizen-accused against THE RlGIIT TO 1'RIAL BY JURy by Rebea:a. DiLoreto 99 articles must be obtaiJJed from that ' \ copyright holder. lhe stale's desire 10 seize lhe liOOny or life of oneofits own. Defenders are the persOllS ' THE JURY ASSEMBlED by Wdliam A_Pangman 101 . .. "", who implemem lheBill ojRights, perhaps more than any other person in our SOCiety, A NATURAL msTOR Y OF THE FULLY INFORMED JURy ASSOCIATION by Don Dolg 109 ANSWERING TIlE HARD QUESTIONS ABOtJT FIlA by !..any Dodge 111 EDITORS when !hey sland up and defend an individual against the power of govenunenl. Let's recognize mis, appreciate it, and remind others of bow much we appreciate !hose CHAPTER 9: 114 Edward C. MODalJaD. Edil<>< 1984 who are willing to slalld up for lhe poor, !he outcast, !he marginali7.ed, and even lhe -Pre""" SEcnO~ 20F TIlE KENTUCKY CONSTITU110~ by Allisoo Connelly 115 Erwin W. Le'Ols, Ed;1Or 1918 · 1983 guilty and defenseless. The degree to which the state can take libeny from OIle of lhe ens Brown, ~anagiog Editor, 1983 _ Prescm. least of us is !he degree to which our real libeny is at risk. As Martin Luther King CHAPTER 10: 118 Tona Rhea, Gr-.pIJics, La}'OO l & [)es;gn has reminded us in his Leifer from Ihe Birmingham Jail, "Injustice anywhere is a lbreal to justice everywhere." Sometime this year pal a Bill ojRights patriot on lhe OBSERVA TlOSS ABOUT THE RlGHT TO COUNSEL by Judge Ed ..... rd H. Jolm'tone 119 TIlE RlGIIT TO COUNSEL: AT RISK FOR KENTUCKY'S POOR by Ed Mooahan 122 Qmtributing Editors back and thank them for foslering our freedoms. The libeny we enjoy is a prodUCI of !heir efforts. FREE COUNSEL: A RlGHT, NOT A CHARITY by 1;m Neuba.rd . 126 linda K. West West's Review CHRONOLOGY OF BIC:E/ljTENNIAL DAlES RELATED TO TIIE RA TlFICA TlON OF THE BILL OF RlGHlS 130 Allison Connelly POSt-Convictioo Sw.'e ~Urkin Death Pm.lty PRODUCED THROUGH MUCH GENEROSITY CHAPTER 11: 131 Don .... Boyco 6d! C~OJ;l High.lights BEYOND TIlE BA11HUill CONSTTTVflON by Nid:olas Facaros \33 Ecole Lewis Plain View D2DGoyeUe Ethics This issue is publisbed through the enormous generosi t y of two donors: I) an TIIE IMPORTANCE OF CIVIL UBERTIES TO THE FBI by William S. Sessions 136 RobRlloy In the Trmches individual who prefers to remain anonymous, and who was attracted to donating AMERICA'S UXFUNl'..lEST HOME VIDEO 139 David 1\"idJaos Evid.mce 57.500 because of the special nature of this issue and its distribution to Kentucky's PRIVACY AND THE BIlL OF RlGItfS by Milton Hirscb 140 Davel'orat Asic Com:<:li
JUNE 1992 ffhe Advocate 2 JUNE 1992 {[he Advocare 3 . A SLEEPING GIANT: SECTION n OF CHAPTER 9 THE KENTUCKY BIll OF RIGHTS
Allison ConneDy
Dr. Thomas Clark concludes IIlat Ken ing v. Kroger, Ky. 691 S.W.2d 893, 899 after slavery was abolished by the pas tucky's firs t Constitution-that of (1985). Oearly, it is time to wake Ibis sage of the 13th, 14th, and 15th amend 1792- was an "incongruous mixture of sleeping giant and use il to cbaIlenge ments to the federal constitution. Ken fear, doubt, faith and hope. "T. Clark., A arbitrary practices by police officers, mcky was forced to update and modern History of Kentucky, 3195 (1960). This prosecutors, judges. correctional offi ize its constimtion. For this reason,a final description could easily apply to Section cials and other state actors, who exercise constitutional COIlV ention was held in 2 of Kmmcky's present Bill if Rights. any power over the lives and libeny of 1890. Still, Section 2 remained Ihe same. This section broadly proclaims: accused and convicted citizens. Accord As a result, il has been left to the courts Cons,titution of'Xf-ntucRy ingly, in this time of shrinIcing constiru to intezpret Section 2 and give meaning Sectwn2: Section 2: Absolute and Arbitrary tiona! prolection 31 Ihe federal level, we and effect to its expansive and beautiful Power Denied. Absolute and arbilrary must rediscover our Stale constirution to words. JXlWer over !he lives, liberty and prop champion Ihe cause of life and libeny and erty of fn:e men exists nowhere in a give il rnearting. Moreover, such an ap II. THE MEANING OF SECTION republic, not even in the largest major proach makes good legal and practical IWO ity. sense. While the U.S. Constitution de .9lbso{ute ana arbitrary power over fines the minimum rights guaranteed an Christened the "great and essential prin The lristory of Ibis unique constirutional individual, state constimtious may grant c iple of liberty and free govern proteCtion ag;Unst the exercise of arbi more expansive constimtiona! prOteC ment... which is indispensable to the hap fi~es, fiberty ana property of freemen trary official power, reflects Kenmcky's tions to their citizens. Prun.eyard Shop piness of an enlightened people, "Tierney own search for a political, economic and ping Center v. Robbins, 447 U.S. 74,81 Coal Company v. Smilh' s Guardian, ISO social identity. Indeed, it is the ultimare (1980). Indeed, as a threshold mauer, Ky. 815, 203 SW. 731,734 (1918). Sec e~ts nowfiere in a repu6{ic, not even irony that Section 2, intended initially to KenlUcky courts must first determine the tion 2 is unique in American jurispru safeguard Ihe right of white males to hold valiclity of the law or action under the dence. Only Wyoming has a similar pro in tfie fargest majority. slaves, now embodies Kenmcky's due Kenmcky Conslilution before resorting vision. Wyom. Const, Article L Sec. 7, process and equal protection guarantees. to its federal counterpart. Fannin 11. Wi/ and that was borrowed from Kentucky. Thus, while Section 2 was born from the Iiams, Ky., 655 S.W.2d 480 (1983). However unique, il has been Ihe courts in fear that slavery would be outlawed, and their expansive interpretation and defmi from the doubt and mistrust that state and What follows then is an overview of Sec tion of "arbitrary," which has given the local officials could nol safeguard the tion 2, it's IrislOry, purpose, scope and section its true constirutional signifi rights of their citizens, il has grown into application. It is hoped that by seeing cance. As one coun observed: a powerful tool thatlimilS arbitrariness in wbere the section has corne from, and the exercise of state power. Conse how it has been judicially interprered 10 [Slection 2 of OUI Constilution is sim quently, with faith and persistence in the reflect society's changing values, we will ple, shan and expresses a view of gov obligation of our state coons to correct be equipped to tap into its vast and 1lll ernmental and political philosophy wrongs. this section contains the seeds of tested potential in the future. that, in a very real sense, distinguishes hope for the future in ensuring a fair and this republic frcm all other fOIIIlS of jusl criminal justice sysrelD. L HISTORY AND PURPOSE OF government which place little or no SECTION 2 emphasis on the rights of individuals in Despite its sweeping language, IUltil re this society. Kentucky Milk Marketing, cently this powerful section has largely The constitutional lristory of Section 2 supra, at 899. been ignored by criminal law practitio has been shaped as much by historical ners. For example, while cases abowld accident as judicial interpretations. Un Because of this view point, the courts fmding oppressive governmental action der Section 4 of the Kentucky'S Consa have painted with broad strokes the defi with respect 10 property rights, there is IUtion, all supreme power rests with Ihe nition of arbitrary. In Sanitation District only one criminal case that equates Sec people. Any power gi,!en to Ihe state is No. 1 v. Cily of Louisville, Ky .• 213 tion 2 with an accused's right to a fair expressly limited by Section 2. However, S.W.2d 995, lOoo (1948), the court po trial. Dean v. Commonweahh, Ky., m in the early nineteenth century, "the pe0- eticallyexclaimed: S.W.2d 900 (1989). Even Juslice pie" only included white males over the Stephens has nOIed, «While there are nu age of twenty one. Thus, the KenlUCky [W]h.atever is contrary to democratic merous cases which have been decided Conslilution of 1849, the lhird constim ideas, customs and maxims is arbitrary. on the basis of this bulwark of individual tiona! Iry, designed Section 2 so that il Likewise, whatever is essentially lJn liberty, the number is relative few, in only applied to "free men." In fact, the just and 1mequa1 or exceeds the reason view of its potential importance to our entire 1849 constimtion was built around able and legitimate interest of the pe0- jurisprudence." Ke1tlUC/cy Milk Markel- the protection of slavery. Consequent! y, ple is arbitrary. JUNE 1992 fFhe Advocate 114
JUNE 1992 {The Advoca1e 115 Moceover: Louisville v. 284 Ky., 684, 145 KJ.lhn, b~Oad nmge of subjeces enCOlllpas.sed, FOR VAGUENESS Section 2 and Section II implicitly gwu tection prong of Section 2, th.ere simply ~.W 2d 851 (1940), and on equal prOlec No bootdorof!1=vested with govcrn different rests have evolVed to determine aruee a defendant the right to a fair trial. are nor enough cases 10 determine Ihe merna' anthonty may ex ...cise ;1 am; Ilon grounds City of Ashland v. Hecks Ky. 401 S.w.2d 421 (1966). • whetheraconstitulional violation has 0c Because of the broad reach of section 2, Dean v. Commonwealth, supra, at 905. value Section 2 can play in the defense of lI'ariIy. If the action taken rests upon curred. For the IIlOiSt pan, these "teSts" the distinction lle:tween procedural and FmalIy, there are no Section 2 caSes that accused citizens. We musuaise and liti reasons so unsubstantial or Ihe conse substantive due process and the void for Onfortunately, Section 2 has also been parrot their federal counterparts. How have used a strict scrutiny review for gate these issues in
JUNE 1992 ffhe A.dwJrx.te 116 JUNE 1992 /The AdllOcate 117