Thursday, March 31, 2011

Change from 1000 yards to 1000 feet from school became effective on March 23, 2011 under HB 121

The change comes in the first section of KRS 218A.1411 (see below).   This change was also made as part of the new “Penal Code Reform” (HB 467) but the difference is that HB 121 has an emergency provision, meaning it became effective on 3/23/11 (the date it was signed).  The Penal Code reform would not become effective until 6/8/11. 

This means that:
(a)    Offenses committed after 3/23/11 are only subject to enhancement if they were committed within 1000 feet of a school, without question; and
(b)    Offenses committed before 3/23/11 are subject to KRS 446.110, which provides that where a new bill mitigates a penalty, the defendant can opt for the penalty in the new bill.  Since KRS 218A.1411 is a penalty provision, I would argue that 446.110 applies to the that provision.  If that is the case any offense for which final judgment has not been entered should only be enhanced under that provision if the transaction occurred within 1000 feet of a school, rather than 1000 yards.

Section 8.   KRS 218A.1411 is amended to read as follows:
(1)      Any person who unlawfully traffics in a controlled substance classified in Schedules I, II, III, IV or V, or a controlled substance analogue in any building used primarily for classroom instruction in a school or on any premises located within one thousand (1,000) feet[yards] of any school building used primarily for classroom instruction shall be guilty of a Class D felony, unless a more severe penalty is set forth in this chapter, in which case the higher penalty shall apply. The measurement shall be taken in a straight line from the nearest wall of the school to the place of violation.
(2)      The provisions of subsection (1) of this section shall not apply to any misdemeanor offense relating to naphthylprovalerone, 3,4-methylenedioxypyrovalerone, 3,4-methylenedioxymethylcathinone, 4-methylmethcathinone, synthetic cannabinoid agonists,[ or] piperazines, or salvia.

Contributed by Kristen Bailey and Tim Arnold

Featured case - COA March opinion on Double Jeopardy

Timothy Quinn Beeler v. Commonwealth
Rendered 03/04/2011, To Be Published
Opinion by J. Combs, Concurring Opinion by Clayton in which J. Wine concurs. 
Roy A. Durham II, DPA counsel for Appellant
Perry T. Ryan counsel, Assistant Attorney General for Appellee

Prosecutions for violations of the same statutory provisions in separate jurisdictions violated Double Jeopardy.  Both Hardin and Hart Counties indicted Beeler under the same statutes, KRS 218A.1432 and 502.020.  Although Beeler pled to a lesser offense in Hart County (attempt to manufacture methamphetamine), that plea did not bar him from asserting a double jeopardy violation.  The two prosecutions arose from the identical bundle of facts.  Although the Commonwealth’s Attorney in Hardin County claimed that the traffic stop in Elizabethtown and the search of the residence in Hart County were different occurrences, both cases relied on evidence seized in both locations and neither case could be prosecuted adequately without evidence from the other case.   Because both convictions arose from the same transaction and were not two distinct statutory provisions, Jeopardy had attached to the second conviction in Hardin County and therefore, that conviction must be vacated. 

Full opinion is available here

Contributed by Susan Balliet

Friday, March 25, 2011

Temporary Ban on Executions in Kentucky Upheld

Judge's temporary execution ban upheld — Associated Press

Link to the order

The court, voting 5-2, left in place a lower court's order temporarily barring executions while Gregory L. Wilson, 54, and other Death Row inmates challenge the state's execution protocol.

The decision means Kentucky won't be able to carry out an execution, despite having recently purchased enough of a key drug for three lethal injections.

Tuesday, March 22, 2011

Defense lawyers in three states (including Kentucky) urging DOJ to look into execution drug sources

Lawyers in 3 states want fed execution drug probe AP

Kentucky public defender David Barron said in a letter to the Justice Department that there were multiple questions about how CorrectHealth, a Stockbridge, Ga.-based company, got a supply of sodium thiopental to sell to Kentucky. Barron also wants to know if Kentucky officials complied with federal law when it contacted Kayem Pharmaceuticals in India.

Barron represents Ralph Baze, who was sentenced to death for killing a sheriff and a deputy.

"It is likely that illegally imported or possessed thiopental will be used in the execution of Mr. Baze and multiple other individuals on Kentucky's death row," Barron wrote.

Kentucky bought 18 grams of sodium thiopental - enough for three executions - in February from CorrectHealth, which is owned by Dr. Carlo Musso, who assisted Georgia in conducting executions. Musso didn't immediately return a telephone message but has previously denied selling the drug.

Eight days after getting the drug from the Georgia company, Kentucky officials contacted Kayem Pharmaceuticals in India, according to documents obtained by The Associated Press. But the state opted not to buy the drug because it is sold in packs of 500 single-gram vials for about $5,000, which is more than the state needs.

"It would require us to alter our normal procurement process and would require Kentucky to obtain enough thiopental for more than 80 executions - a quantity which would expire long before it could be utilized," Kentucky Justice Cabinet spokeswoman Jennifer Brislin said.

Executions in Kentucky are on hold after a judge in September found problems with the state's protocol, a decision unrelated to the drug shortage.

Monday, March 21, 2011

Excellent article on Juries and the Use of the Internet

Juror Behavior in the Information Age

This article collects recent and notable examples of juror online misbehavior and highlights scholarship and practice resources concerning its implications for voir dire, trial management and the administration of justice.


Friday, March 11, 2011

States Rethink Drug Laws - Wall Street Journal

Treatment Gains Favor Over Long Prison Terms; a New Look at Rehabilitation

A growing number of states are renouncing some of the long prison sentences that have been a hallmark of the war on drugs and instead focusing on treatment, which once-skeptical lawmakers now say is proven to be less expensive and more effective.

Kentucky on Thursday became the latest to make the shift when Gov. Steve Beshear signed into law a measure increasing spending on rehabilitation programs and intensive drug testing. The law also reduces penalties for many drug offenses and may allow some traffickers and users of smaller amounts of drugs to avoid prison.

Monday, March 7, 2011

US Supreme Court Issues Opinions on AEDPA and DNA Requests

This morning the Supreme Court issued opinion on two criminal justice procedure issues of note.  Here are the details and links to the opinons via SCOTUSblog:

Wall v. Kholi (09-868) -- In a unanimous opinion by Justice Alito, The Court affirmed the decision of the First Circuit.  The case concerns the time limits for filing a federal petition for habeas corpus under AEDPA, which generally allows inmates one year to file a petition, but tolls the time limit while the inmate’s case is on “collateral review” in the state courts.  The Court held that the phrase “collateral review” in AEDPA means judicial review of a judgment in a proceeding that is not part of direct review.  Accordingly, state proceedings on an inmate’s motion to reduce his sentence did not toll the time to file his federal habeas petition.

Justice Scalia concurred in part.

Skinner v. Switzer (09-9000) -- In a 6-3 opinion by Justice Ginsburg, the Court reversed the decision of the Fifth Circuit.   Skinner filed a civil rights suit under Section 1983, seeking access to DNA evidence to challenge his state conviction.  The Court held that federal courts have subject matter jurisdiction over such claims, which are properly cognizable under Section 1983.

Justice Thomas filed a dissent joined by Justice Kennedy and Justice Alito.

Thursday, March 3, 2011

Sweeping Penal Code Bill Signed into Law

Beshear signs into law sweeping bill to overhaul criminal code

Gov. Steve Beshear signed into law Thursday a broad overhaul of Kentucky’s criminal code, saying House Bill 463 “helps us be tough on crime, while being smart on crime."

The legislation changes Kentucky drug laws by reducing prison time for low-risk, non-violent drug offenders who possess small amounts of illegal drugs.

It then reinvests the savings from the reduced prison costs into drug treatment opportunities for offenders who need help.

The full text can be found here

Watch this blog for summaries and analysis in the coming months. 

Tuesday, March 1, 2011

New American Constitution Society Issue Brief on Excessive Public Defender Workloads

American Constitution Society has released another issue brief on this topic. The document is avaiable via this ACS page, and here is a description:

ACS is pleased to distribute “When Excessive Public Defender Workloads Violate the Sixth Amendment Right to Counsel Without a Showing of Prejudice,” an Issue Brief by Laurence A. Benner, Professor of Law and Managing Director of Criminal Justice Programs at California Western School of Law. This paper is part of a series of Issue Briefs that ACS is publishing focused on ideas for a role that the federal government can play in helping improve indigent defense systems around the country. This series builds on the interest in pursuing reform expressed by Attorney General Eric Holder, Congress, and other federal policymakers to address the crisis in indigent defense that has existed since the Supreme Court’s 1963 decision in Gideon v. Wainwright, the landmark case establishing the right to counsel for indigent defendants.

In his Issue Brief, Professor Benner explains how, by focusing on the absence of counsel at a critical stage of proceedings, rather than on the ineffectiveness of counsel, a set of claims could be considered outside of the analysis required by Strickland v. Washington. Strickland’s two-pronged test requires that ineffective assistance of counsel claims demonstrate that counsel’s deficient performance be both professionally unreasonable and prejudicial. As Professor Benner explains, his litigation strategy avoids the prejudice prong:

As Gideon v. Wainwright and its progeny established, the Sixth Amendment guarantees the assistance of counsel at each critical stage of the proceedings against an accused. The strategy outlined here is premised upon the argument that the period between arraignment and trial—the investigatory stage—is a critical stage at which the accused is entitled to counsel’s assistance. In sum, the argument is that because excessive caseloads make it impossible for defense counsel to conduct a reasonable investigation into factual innocence and/or mitigating circumstances relevant to punishment, this inability to provide “core” assistance of counsel renders counsel constructively absent at a critical stage of the proceedings.

The author describes how the aforementioned litigation strategy could be incorporated into the federal government’s response to the indigent defense crisis via legislation such as the Justice for All Reauthorization Act, which would, among other things, create a federal cause of action for equitable and declaratory relief to address patterns of deprivations of Sixth Amendment rights.

Click Here to Download the Issue Brief.