Update on Kentucky and the search for sodium thiopental - Lexington Herald-Leader

Kentucky executions could be delayed months, official says

If Kentucky is to continue executing Death Row inmates, it must find a new source of a drug used in lethal injections or revise the rules to substitute another drug.

The state has lost its supplier of sodium thiopental, an anesthetic used in executions.

Changing the mix of drugs used in an execution would require revising state regulations, a process that would take time and open the door for challenges by defense attorneys and anti-death penalty advocates.

The changes and challenges could take much of the year to resolve, said the Rev. Pat Delahanty, chairman of the Kentucky Coalition to Abolish the Death Penalty.

"I don't think there'll be executions in 2011" in Kentucky, Delahanty said.

Hospira, a Lake Forest, Ill., company, announced last week it would not resume production of sodium thiopental.

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Kentucky Public Advocate Ed Monahan installed as Chair of American Council of Chief Defenders

KENTUCKY PUBLIC ADVOCATE TAKES OVER AS LEADER OF NATIONAL INDIGENT DEFENSE GROUP

WASHINGTON, DC, January 5, 2011 - The National Legal Aid & Defender Association (NLADA) is pleased to announce that Kentucky’s chief public defender, Ed Monahan, has been named to lead the American Council of Chief Defenders (ACCD), a section of NLADA and the preeminent national voice for indigent accused. Monahan was elected chair of ACCD on January 1, 2011. He was appointed KY Public Advocate by the Governor on September 1, 2008 for a four year term.

“Ed’s commitment and leadership as Kentucky’s chief public defender raises the bar for all leaders in the public defense community,” said Jo-Ann Wallace, president and CEO of NLADA. “His stewardship of the ACCD will ensure that it will continue to play a vital role in supporting quality public defense services and working to ensure fairness throughout our nation’s criminal justice systems.”

Monahan was elected to head the NLADA section that comprises a national community of public defense leaders dedicated to securing a fair justice system and ensuring high quality legal representation for people facing loss of life, freedom or family. The ACCD is charged with the preservation of the constitutional right to counsel for people accused of a criminal offense who cannot afford to hire an attorney and speaks as a national voice for public defense; promotes best practices in the leadership, management, and the administration of justice; and supports development and reform of public defense systems.

“I’m pleased that Ed was chosen to serve in this national defender leadership role,” said Jerry J. Cox, Chair of the Public Advocacy Commission and Second Vice-President of the National Association of Criminal Defense Lawyers. "It is fortunate to have someone of Ed Monahan's caliber leading this important national group of public defender leaders. His national leadership will bring Kentucky defenders the best nationally. It will keep the Kentucky public defender program improving according to the national standard of practice.”

Monahan said, “As ACCD chair in 2011, I look forward to working with chief defenders from across the country to collaborate with the American Bar Association, especially the Standing Committee on Legal Aid and Indigent Defense, and the National Association of Criminal Defense Lawyers Indigent Defense efforts to promote meaningful counsel for indigent defendants facing a loss of liberty. In Kentucky and nationally, defenders face significant resource challenges. We have to balance the scales. So chief defenders will campaign in 2011 to protect America’s right to counsel by advocating that governments meet the constitutional mandate to provide a defense attorney to those who cannot afford one. In 2011 ACCD will also advance our advocacy on pretrial release, immigration and mental health issues. ”

Monahan has been a member of the Executive Committee of ACCD since 2008 and chaired its Leadership and Development Committee from 2008 - 2010. He began as a Kentucky public defender in 1976. Governor Beshear appointed Monahan Kentucky public advocate in 2008. Ed is president of the Kentucky Association of Criminal Defense Lawyers, past chair of the Kentucky Bar Association’s Criminal Law Section, a member of the KBA Ethics Committee (2000-2007; 2008-present). He is a member of the NLADA Defender Policy Group and chairs its Communications Committee. Among his publications, Monahan with James J. Clark, Ph.D. authored “Coping with Excessive Workloads,” Ethical Problems Facing the Criminal Defense Lawyer: Practical Answers to Tough Questions, Rodney J. Upoff, Editor (1995).

Monahan is a native of Ludlow, Kentucky, a 1976 graduate of Washington D.C.’s Catholic University of America’s Columbus School of Law and a 1973 graduate of Northern Kentucky’s Thomas More College.

American Council of Chief Defenders, a section of NLADA, is composed of the nation’s chief public defenders and is dedicated to promoting fair justice systems by advocating sound public policies and ensuring quality legal representation to people who are facing a loss of liberty or accused of a crime and cannot afford an attorney.

The National Legal Aid & Defender Association (NLADA), founded in 1911, is this country’s oldest and largest nonprofit association of individual legal professionals and legal organizations devoted to ensuring the delivery of legal services to the poor. For nearly 100 years, NLADA has secured access to justice for people who cannot afford counsel through the creation and improvement of legal institutions, advocacy, training and the development of nationally applicable standards. NLADA serves as the collective voice for both civil legal services and public defense services throughout the nation.

Drug Court Review Special Edition on Juvenile Drug Courts

A Special Issue on Juvenile Drug Courts

Introduction to Special Issue on Juvenile Drug Treatment Courts

Adolescent Outpatient Treatment

 

Melissa L. Ives, M.S.W., Ya-Fen Chan, Ph.D., Kathryn C. Modisette, M.A., and Michael L. Dennis, Ph.D

Altering Risk Processes Associated with Delinquency and Substance Abuse

Cindy M. Schaeffer, Ph.D., Scott W. Henggeler, Ph.D., Jason E. Chapman, Ph.D., Colleen A. Halliday-Boykins, Ph.D., Phillippe B. Cunningham, Ph.D., Jeff Randall, Ph.D., and Steven B. Shapiro, M.S

Hearings in a Juvenile Drug Court

Benta Samuelson Christopher Salvatore, M.A., Jamie S. Henderson, M.A., Matthew L. Hiller, Ph.D., Elise White, and

Developing Accountability in the Lives of Youth: Defining the Operational Features of Juvenile Treatment Courts

Pamela Linden, Ph.D., Shelly Cohen, Ph.D., Robyn Cohen, Ann Bader, M.P.A., and Michael Magnani,

Legislative Initiatives

Sean Clark, J.D., James McGuire, M.S.W., Ph.D., and Jessica Blue-Howells, M.S.

Early reporting on KY Task Force on Penal Code proposal

Kentucky drug laws would change under proposal   John Cheeves Bluegrass Politics Blog

More of Kentucky’s drug criminals would be sentenced to probation and addiction treatment instead of incarceration under a broad reform bill proposed Tuesday by a high-powered committee created to find cheaper alternatives to prison.

The Task Force on the Penal Code and Controlled Substances Act is meeting to discuss and sometimes debate a draft of its final proposal for the 2011 General Assembly, which resumes Feb. 1.

The 100-page bill would rewrite many of Kentucky’s criminal laws, especially those concerning illegal drugs.

It would establish a penalty of “presumptive probation” for some lesser offenses, such as drug possession, that would require judges to sentence defendants to probation unless they could give a compelling reason why the defendants could not safely be supervised in the community. It also would require up to a year of addiction treatment for people convicted of drug possession.

Marijuana possession would be reduced from a Class A misdemeanor, which brings up to a year in jail, to a Class B misdemeanor with a maximum jail term of 45 days, if the judge ordered incarceration at all.

The bill would fine-tune drug-trafficking laws so that people caught selling larger volumes of drugs would face tougher penalties than those selling two to four ounces or less, depending on the type of drug.

The offense of drug trafficking near a school, which now covers drug crimes within 1,000 yards of a school, would be reduced to 1,000 feet.

At the same time, the proposal would create a new Class A felony — the most serious level of crime, other than a capital offense — for people convicted of “commercial drug trafficking.” That charge would be possible if someone had an illegal drug in quantities greater than five times necessary to trigger the trafficking statute and if they were guilty of at least five of 10 possible aggravating circumstances, such as possessing $10,000 or more in cash, a gun, a list of customers or drug transactions, or drug-manufacturing paraphernalia.

Task force members said they want stiff prison sentences for high-volume drug dealers but not necessarily for addicts whose only crime is personal possession. One-fourth of Kentucky’s nearly 21,000 inmates are being held for drug offenses.

The task force includes the chairmen of the House and Senate judiciary committees, a former prosecutor, a defense lawyer, the secretary of the Justice and Public Safety Cabinet and Kentucky’s chief justice. It will present the draft bill on Wednesday to the legislature’s Joint Interim Committee on the Judiciary.

Kentucky unable to acquire lethal injection drug

Companies won't sell Kentucky lethal injection drug

by Brett Barrouquere AP

Amid a nationwide shortage of a lethal injection drug, documents obtained under a freedom of information request show two pharmaceutical companies declined to sell Kentucky a supply of the sedative.

The state e-mails obtained by The Associated Press show one firm, KRS Global Biotechnology of Boca Raton, Fla., explained it's refusal by saying there was no doctor involved in the purchase of sodium thiopental, even though Kentucky law bars physicians from being involved in administering executions.

No reason was given in the e-mail traffic between state officials and pharmacists for a canceled order from the other company, Spectrum Chemical and Laboratory Products of Gardenia, Calif. A Spectrum official told the AP the ordered was scrapped when it sold that part of its business last year.

Jan 18th edition of Capital Defense Weekly

is available here.

Audio of Kentucky v. King argument

is located here

SCOTUSblog recap of Kentucky v. King oral argument

Argument recap: Choosing the rule for warrantless searches when police create exigent circumstances

During oral argument in Kentucky v. King on Wednesday, the Court struggled to find the proper test for determining when police are prohibited from justifying a warrantless search with exigent circumstances that they create.  Because neither side supported the Kentucky Supreme Court’s two-prong test, a straightforward affirmance seems very unlikely; instead, the Court focused on whether the state’s proposed “lawfulness” test or another of the five tests currently being used by lower courts is best.

Transcript of Kentucky v. King argument

The transcript of Kentucky v. King is here.

Jason Nemes on whether the KY Supreme Court is more likely to reverse a case that it has decided to review - Law Reader

Reversal rates in cases considered on discretionary review by Jason Nemes

One of the most frequent questions I am asked by attorneys preparing a motion for discretionary review is whether their case, if reviewed, is likely to be affirmed or reversed.  While it is difficult to predict particular cases, the statistics do allow for some useful generalizations.

Kentucky v. King Argument this Wednesday

DPA's Jamesa Drake will be arguing in the United States Supreme Court this Wednesday.

SCOTUSblog has all the details posted

Issue: Under what circumstances can lawful police action impermissibly ”create” exigent circumstances that preclude warrantless entry?

Plain English Issue: Although the police usually need a warrant to enter someone’s home, there is an exception for emergency situations. The question is whether that exception can apply when the emergency is created by the lawful actions of the police.

SCOTUSblog Coverage

• Argument preview: When does police conduct create exigent circumstances, thereby precluding an entry or search without a warrant?
• Police-created exigent circumstances in Kentucky v. King

Briefs and Documents

Merits Briefs

• Brief for Petitioner Commonwealth of Kentucky
• Brief for Respondent Hollis Deshaun King
• Reply Brief for Petitioner Commonwealth of Kentucky
• Respondent's Motion to Dismiss the Petition as Improvidently Granted
• Petitioner's Response to Respondent's Motion to Dismiss

Amicus Briefs

• Brief for Effective Law Enforcement, Inc., the International Association of Chiefs of Police, and the National Sheriffs Association in Support of Petitioner
• Brief for the United States in Support of Petitioner
• Brief for the States of Indiana, Alabama, Arizona, Colorado, Delaware, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming in Support of Petitioner

Certiorari-Stage Documents

• Opinion below (Supreme Court of Kentucky)
• Petition for certiorari
• Brief in opposition
• Amicus brief of states
• Petitioner's reply

For petitioner: Joshua D. Farley, Assistant Attorney General,
Frankfort, Ky.; and Ann O’Connell, Assistant to the Solicitor General, Department of Justice, Washington,
D. C. (for United States, as amicus curiae.)

For respondent: Jamesa J. Drake, Assistant Public Advocate,
Frankfort, Ky.

SCOTUS Blog - Police-created exigent circumstances in Kentucky v. King

SCOTUS Blog provides an explanation of the issues in this case to be argued next Wednesday by DPA's Jamesa Drake.

In this post, I want to talk about the facts of the case and then consider the legal issues. I want to make three points in particular. First, the facts of the case are still in dispute on an essential point. Second, the legal issue presented in the case is surprisingly narrow, a point that the briefing largely misses. Third, the theories offered by the state and the United States as amicus curiae are in my view far too broad, but the best answer is actually quite tricky but should be rooted in causation principles.

Featured Case - Agreeing to leave the county

The order of the court probating a twelve-month sentence on the condition that the defendant leave the county violated the defendant's right of free travel.  Nevertheless, since the defendant did not object to the imposition of that condition at the it was imposed, the judgment of conviction survived and it was not a violation of the defendant's constitutional rights to revoke the probation and order the defendant to serve the twelve months.  Butler v. Commonwealth, 304 SW3d 78 (Ky.App.2010).

Contributed by Glenn McClister