LRC Press Release about Public Advocate's Testimony Regarding PFO laws

(video of the hearing is available at Aug 05 Interim Joint Committee on Judiciary Ed Monahan and Damon Preston's testimony begins 75 minutes in)

The state’s Public Advocate is asking state lawmakers to consider limits on who can be considered a persistent felony offender and violent offender in Kentucky.

Kentucky Public Advocate Ed Monahan told the Interim Joint Committee on Judiciary that “modest adjustments” to the state’s persistent felony offenders (PFO) and violent offender laws would result in more prisoners being released at a time when they are least likely to reoffend, save the state millions of dollars, and create a more balanced criminal justice system where the longest sentences are reserved for felons who Monahan described as more of a risk to public safety.

Today, Monahan said, there are 7,792 inmates in Kentucky sentenced as persistent felony offenders, violent offenders or both at a cost to the state of $169 million. Many are offenders who were convicted of the lowest level, often non-violent felonies.

In fact, Monahan said 1,441 Kentucky inmates are serving an average sentence of 11 years for an underlying offense classified as only a Class D felony, the lowest level felony offense under state law.

“One felony is a serious conviction with serious consequences. But if you look at the 7,700 you have a lot down at the Class D range. A question that one might ask is, do you really want to incarcerate those persons for this aggravated length of time at a significant cost to you?” said Monahan.

Many PFOS in Kentucky today are felons who have never served time for a prior offense, said Monahan. That has been the case since 1976 when, Monahan said, the Kentucky General Assembly tightened the state’s PFO statutes by abolishing the requirement that a person be imprisoned on a prior offense before being sentenced as a PFO and lengthened the time a PFO must serve before being eligible for parole, among other changes. Prior PFO statutes required three prior convictions and two separate periods of incarceration before a person could be sentenced as a PFO, he said.

Instead, the Public Advocate and his staff suggested that state lawmakers consider adjusting the PFO and violent offenders statutes in any number of ways, including eliminating PFO sentencing for non-violent felonies, using PFO status for sentencing of those with two or more prior felonies without a substantial break in criminal activity, repealing the required 10-year period before some PFOs are eligible for parole, an requiring actual imprisonment on prior felonies before a person can be sentenced as a PFO.

For violent offenders, Monahan’s office suggested reinstating Kentucky’s pre-1998 requirement that 50 percent of a violent offender’s sentence, rather than the current 85 percent requirement, be served before a violent offender is parole eligible. The office also suggests that violent offenders be limited to those convicted of six specific crimes including murder as well as rape, sodomy, robbery with a firearm, burglary with a firearm and assault—all in the first degree only.

Changing the PFO and violent offenders statutes would also restore sentencing jurisdiction to judges and juries rather than prosecutors, where it resides now because of legislative changes, said Monahan.

Committee Co-Chair Sen. Tom Jensen, R-London, asked Monahan if he believes the state’s PFO statutes from 1974—which Monahan said were more limited—were a better way to go.

“As a public policy measure…when do we say enough is enough for somebody?” said Jensen. “There comes a point where we have to say, I think we have to say, we just can’t tolerate your behavior.”

Monahan said what changes are made to the law is up to the General Assembly, but added that he is providing facts that will help lawmakers decide if they want to change the statutes or not.

Keeping felony offenders in prison for decades have not shown to be effective in all cases because it carries significant costs and, studies show, older inmates are less likely to reoffend, said Monahan. “The adjustments that can be made (would give) the Parole Board a little more discretion with those folks,” he said.

Right now, Monahan said Kentucky’s PFO and violent offender statutes are some of the broadest in the nation.

 

"Putting the Science in Forensic Science" - American Statistical Association

From The Innocence Project Blog

More than two years have passed since the National Academy of Sciences (NAS) released a groundbreaking report calling for national oversight and research to ensure reliability in solving crimes. One challenge to addressing the recommendations of the NAS report is the federal government’s reluctance to support new spending.

A column this week in AMSTAT News, the membership magazine of the American Statistical Association, recommends clear steps for the federal government to address this issue at minimal cost to taxpayers. Written by two professors and an independent consultant, the column calls on Congress to:

• Require crime labs to make reports and protocols on forensic science readily available on the web;
• Appoint independent scientific committees to evaluate forensic research, identify needs for further study;
• Redirect existing funds to support long-term research;
• Sponsor seminars and courses to educate judges, lawyers and others on forensic disciplines.

The three authors write:

In recognition of budgetary difficulties and political realities, these proposals keep costs to taxpayers to a minimum. Although their enactment would not solve all problems, we believe the proposed reforms are a doable first step toward ensuring that only first-rate science—beholden only to truth and not to law enforcement or any other partisan interest—is used in the courtroom. The integrity of the American judicial system demands that Congress and the administration speedily enact these reforms.


Read the full column.

Read more about the National Academy of Sciences and the need for a National Forensic Science Agency

For more background on the NAS report and weekly forensic news, visit the Just Science Coalition website.

What’s the Risk?

Judges, probationer officers, and parole board members ask themselves this question almost every day.  What is the risk of this person re-offending during pretrial release if I grant an unsecured bond?  What is risk this probationer will commit a new crime and how closely does he need to be supervised as a result?  What is the risk this inmate will re-offend if he is released from incarceration?  This concern with risk is entirely appropriate.  A criminal justice system should not only punish offenders but try to reduce the likelihood of crime as well.  Evidence-based policy-making research suggests at least two important principles affecting management of risk in the criminal justice system:

1.  Find a scientifically reliable way to differentiate between high, medium, and low risk individuals.  The key to efficiency and effectiveness is to get better at tailoring supervision to the level of risk – at pretrial, sentencing or parole.  The first step is to identify the actual risk factors.  This is a relatively simple matter of statistical analysis.  Not all people seeking pretrial release are equally at risk of failing to appear or re-offending.  Not all probationers and parolees are equally at risk of recidivism.  Criminal justice systems tend to squander money, resources and effectiveness by treating everyone the same.  

2.  Increase supervision and treatment of high risk individuals and decrease supervision of low and moderate risk individuals.  The second important finding of the research is that criminal justice systems tend to spend too little time and resources on high risk individuals and too much on low and moderate risk individuals.  In many criminal justice systems, low-risk individuals are burdened with excessive conditions of release which in many cases almost guarantee more court appearances for violations of conditions of release which do not rise to the level of committing another offense.  At the same time, high-risk individuals are not closely monitored on probation and are allowed to commit repeated violations of probation until they eventually do commit another crime.  Research suggests that the best systems use their ability to differentiate between high and low-risk individuals to become more efficient and effective.

That is how costs go down and the crime rate goes down, too.         

For  a more extensive discussion of these principles and their use see the Kentucky Task Force on the Penal Code and Controlled Substances Act Report

Contributed by Glenn McClister

DPA Social Worker Sarah Johnson Appointed to Parole Board

Social worker appointed to Parole Board   The Morehead News

Last week Sarah Johnson was helping criminal offenders in Rowan, Bath, Menifee and Montgomery counties.

This week she has that role for the entire Commonwealth of Kentucky.

Gov. Steve Beshear recently appointed the social worker to the Kentucky Parole Board after her five years of service to the Rowan County-based office of the Kentucky Department of Public Advocacy.

...

“She’s done a phenomenal job for us and our clients,” said attorney Jay Barrett, Johnson’s supervisor in the local DPA office.

“This is great of for Kentucky but it’s a horrible loss for our lawyers, our clients and the DPA,” he added.

Chief Circuit Judge Beth Lewis Maze said Johnson grew into her heart of service after working with her father, Bill Grimes, at the New Hope Clinic in Owingsville. The clinic offers free health services to low-income populations.

Maze said Johnson is well suited for the Parole Board because of the work she’s done at the DPA.

“Sarah’s got a lot of experience being in the trenches that will be beneficial to the parole board,” Maze said.

“She’s had enough experience to cut through the get-out-of jail-free cards. She’s had the opportunity to look at people’s criminal history, and she’s got a background in helping people. I’m excited that we have someone from this circuit on the board,” Maze added.

Complete article

Overloaded Public Defense Systems Result in More Prison Time, Less Justice - Justice Policy Institute Report

New report from Justice Policy Institute : Public defense systems in U.S. have too many cases, too little time, too few resources

The report identifies 5 ways poor quality public defense increases incarceration

1. more pretrial detention for people who do not need it;
2. increased pressure to plead guilty;
3. wrongful convictions and other errors;
4. excessive and inappropriate sentences that fail to take into account the unique circumstances of the case; and
5. increased barriers to successful reentry into the community.

Recommendations from the report include:

  • Integrate a holistic and community-based approach to public defense. Community-based and holistic approaches to defense can help address the root causes of justice system involvement and prevent future involvement by treating the whole client. This can improve public safety, save money on corrections and have a positive impact on people and communities.
  • Collect better data and conduct more empirical evaluations on the impact of public defense systems on people, communities and criminal justice. Rigorous research and data collection on all justice policies and practices, but especially public defense, can help policymakers make informed decisions on policies that impact public defense.
  • Involve public defenders and affected communities in the policymaking process. As people who are directly involved with the laws and policies in a state or locality, defenders are in the unique position of being able to offer insight on the impact these policies have on people, on their law offices, and on the justice system. As such, defenders should be actively engaged in the policymaking process for criminal justice policies as equal partners in the justice system.
  • Actively seek out the voices and perspectives of people who have used defender services to gain a better understanding of the realities of various systems and the implications for people. Nobody knows better the impact of criminal justice policies and practices than people who are involved in the justice system. Involving people directly impacted by the justice system will provide crucial information on making better and more effective and just policies.

Full Report
Factsheet
Press Release

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 4

Myth No. 4: I can subpoena children to court by serving EITHER parent with a subpoena.

Not exactly.  RCr 7.02(2) provides in part that “[a] subpoena for an unmarried infant shall be served upon the infant’s resident guardian if there is one known to the party requesting it, or, if none, by serving either the infant’s father or mother within this state or, if none, by serving the person within this state having control of the infant…”  On those occasions where the parents are divorced and custody is granted to one parent, the defense lawyer must serve the subpoena on the custodial parent, not the non-custodial parent. 

The rule specifies that either parent can be subpoenaed only where there is no known “resident guardian.”  If you serve your own client with the subpoena, and he does not have custody of the children, you will not prevail when the children do not show up and you have to prove to the court proper service of the subpoena in order to get a continuance or other remedy.  Certainly, the non-custodial parent qualifies as the “resident guardian” when the child is visiting pursuant to the decree of custody; but when the child is not visiting the resident guardian will be the custodial parent.  To avoid any doubt, subpoena both parents.

an excerpt from The Subpoena: Ethical Use and Unethical Myth-Use byb Scott West

2011 DPA Awards Video Now Available

Welcome - BIll Robinson, ABA President

Keynote - Cat Kelly, Director of the Missouri State Public Defender System

2011 Professionalism & Excellence Award – Mark Solomon

For exemplifying professionalism and excellence in the service of public defender clients

2011 In re Gault Award – Nathan Shirley

For courageous representation of juvenile defendants

2011 Rosa Parks Award – Rosie Nunn

 For courageous investigation on behalf of clients

2011 Furman Award – David Barron           

For courageous representation of capital clients

2011 Anthony Lewis Media Award – Andrew Wolfson, The Courier-Journal

For informing the public on the Gregory Wilson capital case

2011 Gideon Award - Brian Scott West

For courageously advancing the right to counsel for the accused

2011 Public Advocate Award - Senator Tom Jensen

For advancing justice through criminal justice reforms.
 
2011 Public Advocate Award - Representative John Tilley

For advancing justice through criminal justice reforms.

2011 Public Advocate Award - Bruce K. Davis

For advancing the integrity of the justice system through the Kentucky Bar Association
 
2011 Nelson Mandela Lifetime Achievement Award – David E. Murrell

For a lifetime of courageous service in the fight to increase the right to counsel for Kentucky indigent criminal defendants

 

2011 Penal Code Task Force - DPA submits two documents

DPA has recently submitted two documents to the 2011 Penal Code Task Force.  To start their work this year, the Task Force solicited criminal law reform ideas through a survey.  To further assist the Task Force, Public Advocate Ed Monahan created a document outlining the development and impact of the PFO and Violent Offender laws. 

Cost-Efficient Adjustments of Kentucky’s Persistent Felony Offender and Violent Offender Laws submitted to 2011 Penal Code Task Force by DPA

Survey of DPA Attorneys Regarding Needed Penal Code Reform

Proposed Adjustments to Kentucky’s PFO Law (KRS 532.080)

A.    Eliminate PFO enhancements for non-violent felonies.

B.    Eliminate first and second degrees, leaving PFO status to apply only to those with two or more prior felonies without any substantial break in criminal activity. 

C.    Repeal 10-year parole eligibility requirement for PFO first degree.

D.    Require actual imprisonment on prior felonies.

E.    Prohibit all double enhancements by eliminating PFO for all offenses already enhanced by a prior conviction.

Proposed Adjustments to Kentucky Violent Offender Law (KRS 439.3401)

A.    Reinstate 50% parole eligibility for violent offenders, as originally passed in 1986 and maintained until 1998 when Congress conditioned federal funds on passage of 85% parole eligibility. (No federal funds would now be lost by reverting to the prior law.)

B.    Limit the category of violent offenders to those convicted of:
   i.     Murder
   ii.    First-Degree Rape
   iii.    First-Degree Sodomy
   iv.    First-Degree Robbery with a Firearm
   v.    First-Degree Burglary with a Firearm
   vi.    First-Degree Assault

Other Alternative Adjustments to the Kentucky Violent Offender Statute Include:

A.   Limit 85% parole eligibility to intentional conduct resulting in death, serious physical injury, or substantial sexual contact.  Wanton murders, assaults and other non-intentional crimes resulting in death or serious injury and other violent intentional crimes not resulting in death, serious injury, or substantial sexual contact (i.e. first-degree robbery) could be reverted 50% parole eligibility rather than 85%.

B.    Limit each category of crime in KRS 439.3401 to convictions “involving the death of the victim or serious physical injury to a victim.”

C.    Limit violent offenses to any class A or B felony or capital offense involving the use or threatened use of physical force upon another person.

D.    Graduate the parole eligibility according to the Classification of the violent offense, e.g., 75% for violent Class A convictions, 50% for violent Class B convictions, etc. 

E.    Provide that violent offenders who reach a certain age, such as 65 or 70 years, except for those sentenced to life without parole or life without parole for 25 years, be parole eligible.

F.    Repeal the 2006 substantial expansion of the violent offender statute, which added the following crimes to the definition:
   1.    Commission or attempted commission of a felony sexual offense in KRS Chapter 510;
   2.    Use of a minor in a sexual performance as described in KRS 531.310;
   3.    Promoting a sexual performance by a minor as described in KRS 531.320;
   4.    Unlawful transaction with a minor in the first degree as described in KRS 530.064(1)(a);
   5.    Promoting prostitution in the first degree as described in KRS 529.030(1)(b);
   6.    Criminal abuse in the first degree as described in KRS 508.100;
   7.    Burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020. 508.032, or 508.060;
   8.    Burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040; or
   9.    Robbery in the first degree
       
G.    Expand the KRS 439.3402 exemption to include additional significant mitigating conditions such as mental illness, mental retardation, the age of the defendant, a victim of  sexual abuse, and those in KRS 532.025:
   1.    The defendant has no significant history of prior criminal activity;
   2.    The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance even though the influence of extreme mental or emotional disturbance is not sufficient to constitute a defense to the crime;
   3.    The victim was a participant in the defendant's criminal conduct or consented to the criminal act;
   4.    The offense was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct even though the circumstances which the defendant believed to provide a moral justification or extenuation for his conduct are not sufficient to constitute a defense to the crime; 
   5.    The defendant was an accomplice in an offense committed by another person and his participation in the offense was relatively minor;
   6.    The defendant acted under duress or under the domination of another person even though the duress or the domination of another person is not sufficient to constitute a defense to the crime;
   7.    At the time of the offense, the capacity of the defendant to appreciate the criminality of his conduct to the requirements of law was impaired as a result of mental illness or retardation or intoxication even though the impairment of the capacity of the defendant to appreciate the criminality of his conduct or to conform the conduct to the requirements of law is insufficient to constitute a defense to the crime; and
   8.    The youth of the defendant at the time of the crime.


KY Supreme Court Bail Pilot Project Extended and Amended: A Program Coming to Your County

In 2009, the Kentucky Supreme Court Criminal Rules Committee recommended a 9-county piloting of a bail schedule to the Court. The goals were to increase release rates, to have release occur sooner for persons presumed innocent, and to save counties jail money.

The Kentucky Supreme Court in Administrative Order 2009-14 authorized a Bail Pilot Project in Bell, Boyd, Boone, Butler, Campbell, Edmonson, Kenton, Ohio and Pike Counties from January 1, 2010 to December 31, 2010 and extended this program in Administrative Order 2010-12 through June 30, 2011. In Administrative Order 2011-05 it was again extended through June 30, 2012 for further study and the impact of HB 463 on it with some changes. These Administrative Orders effectively amend the bail rules, RCr 4.00 et. seq.

The 2011 changes include

  • Amended Uniform Schedule of Bail to be used in 9 counties except in Campbell "the class D felony Schedule shall not be used."
  • DUI 1st, AI, PI, Drinking in a Public Place and all violations have been deleted from the Schedule.
  •  A new "one bail for all" calculation of bail is made as follows: except where there is at least one Class D felony and the number of crimes charged exceeds five, the bail for all will be the one bail for the highest crime charged. 

The Schedule can be found here.

AOC continues monitoring the Schedule for performance. A new AOC Report will be out in October 2011. Crimes covered by the Schedule are non-violent, non-sexual and generally 1st offense only. A  Judge has the discretion to go below the Schedule. However, if a Judge goes above it, the reasons have to be recorded, creating a record for immediate appeal, if necessary.

Scott_willt
The year-end analysis of the 9-county pilot reports pretrial incarceration time, failure rates, and cost savings to the counties. Justice Will T. Scott said that the Report "indicates that the Jailer operated Schedule practically ties Pretrial on reported Failure to Appear Rates (12% vs. 13%) and beats them by 2% on recidivism, while doing it on an average release time of 4 hours versus 35 hours for pretrial - even on Schedule qualified defendants. The statewide average is around 95-100 hours.  So generally, on the types of crimes the Court has limited the Schedule to, it is outperforming the science-based release practices. That's the success of the Schedule as I see it."

The Report also discusses the differing viewpoints on bail schedules:

"When discussing the concept of bail schedules in general, pretrial practitioners, judges and the public are split philosophically. Advocates for bail schedules cite the positive aspects such as monetary and time savings for pretrial staff, a faster release from jail and a higher percentage of releases overall. Those opposed to bail schedules cite the negative aspects such as risk to public safety due to the lack of a risk assessment being conducted, limited judicial discretion in bail decisions, a step away from the use of evidence based practices and unfairness to the poor."

The full Report can be found here.