Thursday, June 30, 2011

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 3

Myth No. 3:  If I subpoena documents to the Courthouse, but the witness drops them off at my office by mistake, or out of convenience, I can go ahead and look at them and then decide if I want to go ahead and file them, or just throw them away.

Once subpoenaed, all parties have a right to look at the documents.  KBA E.423.  Failure to give notice to opposing counsel violates RPC 3.4(a) by obstructing the party’s access to evidence.  If by chance or by courtesy the custodian delivers them to your office, you should follow one of two paths, depending upon the circumstance.

Prior Court Approval:  If the documents are being produced after a hearing has already been held and a court order has been issued allowing you to have them, you can open the file and look at the documents.   You still must file the contents in the court file, however, as it is information produced pursuant to a court order, and available to all parties and the court.  Throwing them away risks a destruction of evidence charge. 

If it is critical that you examine your client’s medical records, social security records or other documents relating to him, without incurring the obligation of having to turn them over, use a release.  Then you only have to turn over those documents you intend to introduce at trial, or which you show to an expert you expect to call live at trial, and that is only if there is an obligation of reciprocal discovery.

No Prior Court Approval.  If there has not been a hearing concerning the discoverability of the documents, and the Court has not otherwise ordered that you are entitled to see them, then you should not look at the documents, but should place the sealed envelope into the court file and schedule a hearing, asserting your right to look at the documents.  If you look at the contents, or publish them to someone else, only to find out later that the documents were privileged and should have been revealed to you, if at all, only after an in camera inspection, you could open yourself up to sanctions for abuse of process and place at risk your ability to use the documents in trial.

KRS 422.305 specifically governs subpoenas of medical records, and KRS 422.330 specifically provides that the psychiatrist-patient privilege is to remain intact.  Hence, subpoenaing a person’s mental health records and looking at them without prior court permission can subject the attorney to contempt of court or a finding of misconduct.

Other statutes preserve confidentiality or privacy interest, even while allowing the confidential or private records to be subpoenaed.  One example of the risks associated with using such subpoenaed documents prior to court authorization occurred recently in the defense of a “doctor shopping” case tried by a colleague of mine.  “Doctor shopping” refers to an alleged illegal attempt to obtain a prescription for a controlled substance by knowingly misrepresenting to, or withholding information from, a practitioner licensed to dispense drugs, in violation of KRS 218A.140.    The “doctor shopper” theoretically goes from doctor to doctor to doctor attempting to get multiple prescriptions for the same drug in a short period of time.

To combat this practice, the Cabinet of Human Resources maintains an electronic system for monitoring controlled substances, whereby each practitioner who prescribes or dispenses drugs provides data including the name and address of the person to whom each prescription was given.  The Cabinet is authorized to provide this data to any state, federal or municipal officer whose duty is to enforce the drug enforcement laws of Kentucky or the United States, and who is engaged in a bona fide specific investigation involving a designated person.  KRS 218A.202.  The drug enforcement officer can then use the data obtained to obtain a warrant, effect an arrest, procure an indictment, or perform any other legitimate police task.

In my colleague’s case, the authorities used a subpoena to obtain the compilations of data from the Cabinet’s database.  However, upon obtaining the data, the authorities rushed into the grand jury room, presented the results of the data, and procured indictments for doctor shopping against his client.  This was a misuse of the materials and an abuse of the statute, which provides in pertinent part:  “A person who receives data or any report of the system from the cabinet shall not provide it to any other person or entity except by order of a court of competent jurisdiction.”  Because the government had not sought a court order prior to publishing the information to a grand jury the data was suppressed as illegally obtained evidence.

The moral is, just because you got something by a subpoena, it does not mean you can use it anyway you want; other rules of privilege or confidentiality may limit the usage.

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

Tuesday, June 28, 2011

Tonight on "Frontline:" A Close Look at Child Death Cases

PBS’ "Frontline" tonight teams up ProPublica and NPR for a joint investigation that  uncovers more than 20 child death cases in which people were jailed on medical evidence – involving abuse, assault and “shaken-baby syndrome” – that was later found unreliable or flat-out wrong.
When a child dies under suspicious circumstances, abuse is often suspected, but tonight’s “Frontline” episode finds that faulty forensics have contributed to wrongful conviction in accidental deaths.

"The Child Cases" is the first of three segments airing June 28 at 9 p.m. (check local listings).

Watch the full episode online now and learn more about the science behind shaken-baby cases.

Court of Appeals - Bradford - Incest statute and step-grandparents

Bradford v. Commonwealth, 2010-CA-001314 – rendered June 24, 2011
Opinion of the Court Reversing and Remanding with Directions

The plain language of the incest statute (KRS 530.020) does not apply to a step-grandparent/step-grandchild relationship.

Contributed by Stephen Buck

Monday, June 27, 2011

Court of Appeals June 17 "to be published" criminal opinions

Mundy v. Commonwealth 10-CA-000507

In Mundy, police discovered Mundy asleep in a car parked on a street at 5:40 a.m.  The officer testified that he was concerned for Mundy’s health and safety (claimed Mundy was breathing slowly) and opened the door to the car.  When he did so, a baggie of crack cocaine was seen in the floor board.

The Court of Appeals recognized that the emergency aid exception to the Fourth Amendment applies to automobiles.  The Court found that the proper test for determining whether a police officer conducted a lawful warrantless search of a motor vehicle pursuant to the emergency aid exception is whether the police officer’s entry into the vehicle was based on an objectively reasonable belief, given the information available at the time of entry, that a person within the vehicle was in need of immediate aid. 

The Court ultimately found that it was not reasonable for the officer to believe Mundy was in need of immediate aid. 

Stage v. Commonwealth 10-CA-000475

Stage pled guilty to one count of second-degree sodomy and two counts of second-degree sexual abuse in 1994.  Before his release in 2000, the trial court conducted a sex offender risk assessment hearing and found Stage to be a high risk offender.  Stage appealed that determination, the Court of Appeals reversed and the KY Supreme Court denied a motion for discretionary review.  

Another sex offender risk assessment hearing was held in 2010 and Stage was again found to be a high risk offender.  He again appealed.  On appeal, after a somewhat confusing procedural history, Stage argued that 2006 Kentucky Acts, Ch. 182 violated Section 51 of the Kentucky Constitution.  However, as the Court noted, Stage was released from prison on March 8, 2000.  As such, the 1998 version of Kentucky’s SORA was the version in effect when Stage was released from prison and initially registered.  He therefore had no standing to challenge the constitutionality of the 2006 version. 

The crux of the case was if Court could sua sponte dismiss for lack of standing.  The Court found that Stage had no judicially recognizable interest in the constitutionality of the 2006 version of the Act and, without such, it was unable to issue an opinion on the question presented and dismissal was the proper remedy.

Contributed by Brandon Pigg

Thursday, June 23, 2011

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 2

Myth No. 2:  I can subpoena documents directly to my office.

No.  Technically, there is no such thing as subpoenaing documents.  RCr 7.02(3) states that you may command “the person to whom it is directed to produce the books, papers, documents or other objects designated therein.”  Even though it is the documents you desire, and you could care less about whether the person shows up or not, it is the person under the order of the subpoena, not the documents.  (Hence the phrase subpoena duces tecum, which essentially translates into “bring the documents with you.”) Since it is impermissible to subpoena a person to your office for any purpose (again, other than for a court-ordered deposition), it follows that you cannot command a person to come to your office bringing documents. 

KBA E-423 provides that “subpoenaed documents may be produced only before the court in connection with a judicial proceeding or properly authorized deposition.”  There is an exception for medical records (KRS 422.305), which allows documents to be produced “in lieu of attendance.”

There are a couple of ethics opinions out there relating to subpoenaing records for use in divorce proceedings where the attorneys were mildly sanctioned for subpoenaing their own client’s documents to their office without serving copies of the subpoenas on  the other side.  See Megibow v. KBA, 173 S.W.3d 618 (Ky. 2005)(“The use of subpoenas to obtain documentary evidence or tangible things without an accompanying notice of deposition or notice of hearing or trial has been a recurring problem.  Evidently, some practitioners are unaware that CR 45.01 prohibits such use of subpoenas”) and Munroe v. KBA, 927 S.W.2d 839 (Ky. 1996).  Keep in mind, this was their own client’s documents!  They could have been gotten by release without ANY notice to the other side.  But because a subpoena was used, it was an ethical violation.

The proper way to subpoena documents is to direct the custodian of records to deliver the documents to the courthouse at a hearing, or into the court file.

In Grand Jury proceedings, Commonwealth Attorneys can subpoena people to the Grand Jury for purpose of testifying or providing documents without having to appear live.  The Grand Jury may excuse full or partial compliance with the command of the subpoena or subpoena duces tecum.  Stengel v. KBA, 162 S.W.3d 914 (Ky. 2005).  But the Prosecutor’s subpoena power is not limitless!  See Bishop v. Caudill, 87 S.W.3d 1 (Ky. 2002) for a list of five things the Commonwealth cannot use the Grand Jury for:  (1) add new parties to an already existing indictment; (2) add new charges to an already existing indictment; (3) amend the old indictment; (4) use as a substitute for discovery depositions; or (5) prepare a case for trial.  “[I]f the purpose of subpoenaing [witnesses] is to use the grand jury proceedings as a guise for trial preparation, the subpoenas must be quashed.”  Bishop, supra.

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


Tuesday, June 21, 2011

AOC - Federal study validates risk-assessment tool used by Kentucky courts for pretrial release

As the pretrial release provisions of the New Penal Code and Controlled Substances Act (HB 463) begin being applied by the courts, the Administrative Office of Courts has announced publicly a study by the JFA Institute in Washington which affirms the validity of a key tool used by district and circuit judges when setting bonds for persons accused of crimes. 

According to the study, the AOC’s Manual Pretrial Interview, Investigation and Risk Assessment – which objectively classifies an individual’s risk of failing to appear in court or committing an offense while on bond into “low,” “moderate,” or “high” categories – ranks among the best in the nation in terms of its ability to predict the behavior of those released on bond. 

With the JFA’s publication of this report (Kentucky Pretrial Risk Assessment Instrument Validation), the AOC’s Manual Pretrial Interview, Investigation and Risk Assessment has been proven a key component of Kentucky’s transition toward “evidence-based practices” for making bond decisions. 

Read the entire AOC announcement

Kentucky Pretrial Risk Assessment Instrument Validation

AOC’s Manual Pretrial Interview, Investigation and Risk Assessment

Contributed by Scott West

Monday, June 20, 2011

PJI Releases State of the Science of Pretrial Release Recommendations and Supervision

Earlier this year, the Bureau of Justice Assistance (BJA) and Pretrial Justice Institute published the document, State of the Science of Pretrial Risk Assessment. That document focused on what the field knows about our ability to predict the likelihood of failure to appear in court or rearrest on new charges among pretrial defendant populations. It described the great strides that the field has made in assessing risks of pretrial misconduct, as well as the challenges that researchers face in validating pretrial risk assessment instruments, and guidance on how they can face those challenges.

This document, State of the Science of Pretrial Release Recommendations and Supervision, has a different focus. It picks up where the first document left off. The document was also funded by BJA and asks the next question: now that we know so much more about predicting risks of pretrial misconduct, how can we use that information to better assure that defendants are appropriately matched to conditions of pretrial release that are designed to minimize their identified risks?



Wednesday, June 15, 2011

Welcome to DPA's The Advocate Online

Welcome to Kentucky's source for criminal justice related resources such as

  • latest tips and news about the implementation of HB 463
  • summaries of new Kentucky Criminal Law cases
  • practice tips for practioners
  • and much more

This web page has many features you may want to explore on the right of the screen

  • a search box to search all prior posts
  • A listing of HB 463 resources and DPA pages
  • a tag listing to make it easy to find a prior post related to that subject or author

There are already 100 prior posts you may want to explore. 

You can receive notice of new posts through email, Twitter or Facebook. 

 Click here to sign up for email updates (These will be emailed to you with the subject line "Your Daily Posterous Subscriptions")

 Click here to sign up for Twitter updates 

 Click here to sign up for Facebook updates 

Tuesday, June 14, 2011

The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 1

DPA General Counsel Scott West has updated his classic article The Subpoena: Ethical Use and Unethical Myth-Use (click link on that title for complete article) for a presentation at the DPA Annual Conference on June 15.   Over the next several weeks, The Advocate will post the top ten myths about subpoena's in Kentucky with Scott West's comments.

Myth No. 1:  I can subpoena people to my office.

With the exception of subpoenas to court-ordered depositions, no, you cannot subpoena persons to places to your office or anywhere outside the courtroom.  Rule 7.02(1) provides in pertinent part: “Subpoenas are issued by the clerk.  It shall state the name of the court and title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.”

The rule specifically requires the title of the proceeding if there is one to be included on the form subpoena.  The proceeding may be a court or jury trial, a suppression hearing, or Daubert hearing, or any other type of proceeding.  If the proceeding does not have a title, that’s okay – but the rule clearly implies that there MUST be a proceeding.

Civil Rule 45, which governs subpoenas in civil cases, is more explicit.  CR 45.01 provides that “[s]ubpoenas shall not be used for any purpose except to command the attendance of the witness and production of documentary or other tangible evidence at a deposition, hearing or trial.”  This provision lends support to the implication of RCr 7.02 Since RCr 13.04 applies the Rules of Civil Procedure in a criminal case so long as they are not superseded by or inconsistent with the Rules of Criminal Procedure.  In this instance, CR 45.01 would be interpretive, not inconsistent, with the criminal rule.

KBA ethical opinions E-423, E-140 provide:  “Use of a subpoena for ex parte investigation is strictly prohibited.”

Note also Hilliard v. Commonwealth, 158 S.W.3d 758, 764 (Ky. 2005), quoting U.S. v. LaFuente, 991 F.2d 1406, 1411 (8th Circ. 1993):  “The government may not use trial subpoenas to compel prospective trial witnesses to attend pretrial interviews with government attorneys."  The rule against subpoenaing witnesses to places outside the courtroom applies equally to the government.  Neither the Commonwealth Attorney nor the County Attorney have a superior right to subpoena persons to places outside away from the courtroom.  Yet, there is an abundance of anecdotal evidence of prosecutors doing just that.  This writer is personally aware of one Commonwealth Attorney being reprimanded by a Circuit Judge for subpoenaing witnesses to his office. 

On a different occasion, I witnessed a hearing where the issue was whether the Commonwealth Attorney could subpoena reluctant witnesses to his office.  (I do not know whether he had filed a motion asking for permission in advance, or whether he had attempted to subpoena a witness and defense attorney was objecting.) At the hearing, he implored the Court to allow him to use the subpoena for that purpose. “There has to be some way I can make them talk to me!”

The defense attorney replied “Your Honor, I have spent the last 25 years having doors slammed in my face by witnesses who didn’t want to talk to me, and Lord willing, I’ll have 25 more.”  (At that moment, I felt a special kinship to that defense attorney.)

I do not know how that hearing turned out -- the Court took it under advisement – but the lesson to me was clear.  If you want to talk to a witness and the witness will not cooperate, move for a deposition or find another lawful way to interview the witness.  Just do not subpoena him to your office.

Contributed by Scott West 

Monday, June 13, 2011

Pretrial Release and HB463


KRS 446.010 Definitions for statutes generally
(33) "Pretrial risk assessment" means an objective, research based, validated assessment tool that measures a defendant's risk of flight and risk of anticipated criminal conduct while on pretrial release pending adjudication.

Use of the assessment tool is required. Courts should not be able to detain accused persons pretrial based on a personal opinion or an intention to punish the defendant for a crime of which he has not yet been convicted.

Limits on Pretrial Incarceration

New Section of KRS 431
In considering pretrial release, courts shall consider three factors:

  •  Is the defendant a flight risk?
  •  Is the defendant unlikely to appear for trial?
  •  Is the defendant likely to be a danger to the public if released?

If the defendant is LOW risk, LIKELY to appear for trial, and NOT LIKELY to be a danger to others, the court shall order the defendant released on ROR or unsecured bond.

If the defendant is MODERATE risk of flight, nonappearance, or danger to others, the court shall order defendant released on ROR or unsecured bond, but shall consider ordering GPS monitoring, drug testing, increased supervision, or other conditions.

KRS 431.525 Conditions for establishing amount of bail
Maximum Amount of Pretrial Bond for Misdemeanors
When a person is charged with one or more misdemeanors, bail shall be a single amount no higher than the fine and costs for a single count of the highest misdemeanor charged. This only applies if charged misdemeanors do not involve physical injury or sexual contact.

Maximum Amount of Bail on Appeal
If a person is convicted of a misdemeanor that does not involve physical injury or sexual contact and sentenced to a sentence other than a fine only, bail for release on appeal shall not exceed double the amount of the maximum fine for one count of the highest misdemeanor. If the person was sentenced to a fine only, bail for release on appeal shall not exceed the amount of the fine.
The limits herein shall not apply if the defendant is found to be flight risk or danger to others, but a court denying release based on these factors much document the reasons for the denial in a written order.

New Section of KRS 218A
Any statute to the contrary notwithstanding, a person charged with a 218A offense which may result in presumptive probation (i.e. Possession of Controlled Substance First Degree or Trafficking Controlled Substance Third Degree) shall be released on ROR bond or unsecured bond unless he is found to be flight risk or danger to self or others. If he is not released, the court shall document the reasons in a written order.

Bail Credit for Pretrial Incarceration

Included in the New Section of KRS 431
Regardless of amount of bail, court shall permit credit of $100 per day toward bail, for each day or portion of day in jail. Upon service of sufficient days to satisfy bail, court shall order release. The jailer is responsible for tracking credit.

Release does not happen automatically, but the court must “order the defendant released” after “service of sufficient days in jail”. This means attorneys might need to file motions, depending on a judge’s practices. It will also likely raise client phone calls and complaints for extra days served unless an efficient system for release is developed.The Bail Credit does not apply to anyone found to be a flight risk or danger to others. It also does not apply to anyone convicted (not charged) of:

  • a felony sex offense (KRS 510),
  • 529.100 (Human Trafficking involving commercial sexual activity),
  • 530.020 (Incest),
  • 530.064(1)(a)(Unlawful Transaction with a Minor (Sex)),
  • 531.310 (Use of Minor in Sexual Performance), or
  • 531.320 (Promoting Sexual Performance by Minor),
  • Or who is a Violent Offender.

If a defendant is not released, the court shall document reasons in a written order.

Practice Tip: The Bail Credit does apply in felony cases. Attorneys will want to compare bonds after the effective date of the statute to the historical bonds of a court. If a court that traditionally set a $5000 bond for an offense suddenly starts setting $25,000 bonds for the same offense, it should be challenged as an attempt by the court to circumvent the Bail Credit.

Observation: The amended 431.525 and the new section of KRS 431 appear to be inconsistent. Under the new section, non-financial bond is required unless the defendant is found to be a high (i.e. not low or moderate) risk of flight, non-appearance, or danger. The limits on pretrial bail in 431.525 and the bail credits would only arise when financial bail is permissible, but then specifically do not apply if the defendant is a flight risk or danger. It would seem any defendant who is not a flight risk/danger would be entitled to ROR/unsecured and any defendant who is a flight risk/danger would not be entitled to the limits or credit.

New Guidelines Coming…

New Section of KRS 27A (Court of Justice)

The Supreme Court shall establish guidelines for judges to use for defendants whose pretrial risk assessments are moderate or high risk, both those who would be ordered to jail and those who are eligible for supervision.

Judges shall consider the guidelines.
The clear intent is that the Supreme Court will provide guidance so that even moderate and high risk defendants may be released with conditions.

Overall Observation of Pretrial Release Changes: Aggressive bail appeals under Rule of Criminal Procedure 4.43 will be necessary. If the new laws are applied as written, pretrial detention will be reduced significantly. Unless their practices were already very favorable to pretrial release, courts that do not change detention practices will either be in violation of the new laws or bending the new laws to fit their current practices. Either way, appellate review should be sought often and early to establish consistent implementation of the law, hopefully as the legislature intended.

Contributed by Damon Preston

Complete Overview and Commentary: House Bill 463 - Public Safety and Accountability Act provided to participants today at DPA's 2011 Annual Conference. 

Sunday, June 12, 2011

Background: HB 463 as Evidence-Based Policy-Making

It is evident to anyone who surveys the contents of HB 463 that it is a penetrating reform affecting almost every facet of the criminal justice system.  But it is more than that.  It is, in fact, the instantiation of a coherent set of policy decisions which all have one thing in common:  they have been proven to work.  The best way to understand why HB 463 makes the changes it does is to understand HB 463 as a model of evidence-based policy-making.

Evidence-based policy-making is being applied throughout the criminal justice system nationwide - from best ways to deal with status offenders in juvenile court to best practices in re-entry of adult offenders back into the community.  The PEW Center for the States helps states to identify evidence-based policies and incorporate those policies into effective legislation. 

Here is a link to their report on Kentucky.  The final report of the Kentucky Task Force on the Penal Code and Controlled Substances Act, incorporating PEW suggestions into the Kentucky justice system, can be found here.  (Note: HB 463 did not include every recommendation in the report.)

Contributed by Glenn McClister


Friday, June 10, 2011

ACCD Releases Policy Statement on Pretrial Justice Practices

This week the American Council of Chief Defenders released a policy statement on Policy Statement on Fair and Effective Pretrial Justice Practices

Executive Summary

Pretrial release practices throughout the country frequently result in the unjust, unnecessary, expensive, and prolonged detention of many individuals prior to trial.

Our legal traditions urge us to reserve pretrial detention for only the most carefully limited circumstances, and all available evidence reflects the importance of doing so.

Pretrial detention has harsh consequences, including the loss of jobs, homes, and family ties. Research has revealed that all other factors being equal, individuals who are detained prior to trial experience more severe ultimate outcomes. Just as importantly, the heavy reliance by many jurisdictions upon monetary bond as a pretrial release condition disproportionately affects the poor and minorities.

Given our evidence???based ability to accurately identify risk, communities can lower their jail costs while ensuring that only those who pose significant risks of flight or danger are detained.

This American Council of Chief Defenders Policy Statement calls for a new commitment by all criminal justice stakeholders to ensure fair and appropriate pretrial release decision???making, and outlines key action steps for each pretrial actor. In particular, this statement calls upon defenders to advance the following initiatives:

Examine Pretrial Release Practices Within Their Own Jurisdictions to Identify Key Areas of Improvement. While jurisdictions may share common issues, each has its own unique set of practices and traditions. Where unnecessary or unjust pretrial detention is occurring, defenders ought to identify the particular practices leading to those outcomes.

Identify and Implement National Standards and Best Practices. Several national organizations have developed national standards on pretrial practices, and these provide excellent guidelines for defenders in developing strategies to improve pretrial outcomes. Defenders should become familiar with these standards and strive to implement them in daily practice.

Develop Collaborative Efforts Among All Criminal Justice Stakeholders to Improve Pretrial Practices. Improvements are only feasible where open dialogue is occurring between all pertinent criminal justice leaders. Defenders can lead the effort to develop a collaborative approach to rectifying identified detrimental pretrial practices. This effort ought to include local and state policy???makers, who determine how resources are allocated.

Develop Effective Pretrial Litigation Strategies. Defenders ought to be equipped with effective and efficient litigation strategies, grounded in local practice and law, to challenge pretrial???release decisions that result in unnecessary detention.

click here to see entire statement

Thursday, June 9, 2011

Louisville Courier Journal Article on Impact of HB 463 on Misdemeanor Arrests

New law will reduce arrests for misdemeanors in Kentucky

Under a new law designed to ease jail overcrowding, police officers will have to issue citations rather than make arrests for dozens of misdemeanors, as long as they believe the suspect is no danger to himself or others and will appear in court to answer the charge.

The law also reduces some felony drug charges to misdemeanors that require citations rather than arrest, such as second-degree possession of a controlled substance.

The changes were pushed by advocates who say there typically is no reason for people charged with misdemeanor crimes to spend time in jail, with taxpayers footing the bill.

Policy Pronouncements - HB 463

In all motions arguing for application of the new statute, the stated policies of the legislature should be cited.

New Section of KRS 532

It is the sentencing policy of the Commonwealth of Kentucky that:
(1) The primary objective of sentencing shall be to maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced;
(2) Reduction of recidivism and criminal behavior is a key measure of the performance of the criminal justice system;
(3) Sentencing judges shall consider:

(b) The likely impact of a potential sentence on the reduction of the defendant's potential future criminal behavior;

Observation - Under what situations would sentencing a defendant to prison improve the outcome for the defendant? Rarely, one would think. Unless prison is necessary to maintain public safety, community supervision with appropriate conditions will usually best meet the stated “sentencing policy of the Commonwealth of Kentucky.”

Practice Tip – Be prepared to argue Separation of Powers if a judge decides not to follow the legislatively enacted sentencing policy of the Commonwealth. Under Section 28 of the Kentucky Constitution, no branch of government may exercise power belonging to another branch. “Sentencing policy” is clearly within the exclusive jurisdiction of the legislative branch and it is for the judicial branch to apply the law as written.

New Section of KRS 218A
The General Assembly hereby finds, determines, and declares that:

(1) The regulation of controlled substances in this Commonwealth is important and necessary for the preservation of public safety and public health; and
(2) Successful, community-based treatment can be used as an effective tool in the effort to reduce criminal risk factors. Therapeutic intervention and ongoing individualized treatment plans prepared through the use of meaningful and validated research-based assessment tools and professional evaluations offer a potential alternative to incarceration in appropriate circumstances and shall be used accordingly.

Included in New Section of KRS 532 (above)

It is the sentencing policy of the Commonwealth of Kentucky that:

(4) All supervision and treatment programs provided for defendants shall utilize evidence-based practices to reduce the likelihood of future criminal behavior

KRS 446.010 Definitions for statutes generally

(15) "Evidence-based practices" means policies, procedures, programs and practices proven by scientific research to reliably produce reductions in recidivism when implemented competently.
Throughout the bill, “evidence-based practices” is a point of emphasis. Pretrial release, probation and parole supervision, and all decisions throughout should be based upon evidence. Myths and personal opinions are not sufficient to support decisions made under any provision of the bill.

Contributed by Damon Preston

the  bill.

Wednesday, June 8, 2011

Retroactivity and HB 463

Defendants with pending cases on or after June 8, 2011 should be able to “opt in” to applicable provisions of HB 463.
446.110 Offenses committed and rights accruing prior to repeal of law.
No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, except that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.
Two requirements must be met for a defendant to be entitled to have the new law applied to him:
1. Prior penalties under the law have to be “clearly mitigated” by the new law, and
2. The defendant has to give unqualified consent to having the new law applied to his case.
Commonwealth v. Phon, 17 S.W.3d 106 (Ky. 2000); Rogers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009)
Formal written motions should be filed to ensure the benefits of the new legislation or to preserve any issue relating to applicability of the new law. The motion should explain why the new provision is “clearly mitigating” and express the unqualified consent of the defendant to the application of the new provision.
Contributed by Damon Preston

New AOC Forms related to HB 463 and other new laws

Are now available on this page


Tuesday, June 7, 2011

HB 463 Official Certified Copy Now Available

Most of the provisions of historic House Bill 463 become effective today.  Representing one of the most sweeping and comprehensive reforms of the criminal justice system in Kentucky in decades, the legislation is based on models which evidence shows have been effective in other states in not only lowering systemic costs but lowering recidivism as well. 

Here is the certified copy and all the statutes effected by HB 463 which are either already in effect or go into effect today.  Once legislation is passed it goes to the revisor of statutes to codify the legislated amendments and additions into the statutes effected by that legislation.  The only “official” or “final” copy of what those new or amended statutes look like belongs to the revisor of statutes.  These are all the statutes effected by HB 463 in their new and final form, including the emergency provisions regarding conditional discharge revocations and those which take effect today.  Those sections which will not take effect till 2012, 2013, etc. are NOT included.  The revisor of statutes has also provided a copy of his certification of the accuracy/authenticity of this copy of the newly revised statutes (he will keep the original on file in his office, as it says in the certification).

The statutes you’ll want to look at first include the KRS 218A statutes, KRS 431 statutes, KRS 532.080, and KRS 534.   

Contributed by Glenn McClister

Other HB 463 related resources

June 2011 Edition of The Advocate Newsletter

DPA District Court Manual (updated to include HB 463)

Stay tuned to this blog or subscribe to updates through email, Twitter or Facebook for more news about HB 463 implementation. 


Interim Judiciary Committee Discusses Status Offenders

Lawmakers Want Fewer Children Jailed for Non-Criminal Offenses - Lexington Herald-Leader

Reducing the number is "a priority," state Rep. John Tilley, co-chairman of the Interim Joint Committee on Judiciary, said Friday.

"There's a consensus that nobody wants to detain status offenders," said Tilley, a Democrat from Hopkinsville. "The problem is when those status offenders violate court orders," and they can leave judges with no choice, he said.

"Our hope is we don't have to incarcerate kids for something that is not a crime," said Sen. Tom Jensen, Tilley's co-chairman and a Republican from London. Legislators want to come up with legislation for the 2012 legislative session, he said.



Saturday, June 4, 2011

Saving Money by Reforming Pretrial Release - NY Times Op-Ed

The Right Way to Shrink Prisons

by Shima Baradaran, an associate professor of law at Brigham Young University and the chairwoman of the American Bar Association Pretrial Release Task Force.

Fortunately, there is a more lasting solution to overcrowding, one that gets to the heart of exploding inmate populations nationwide: reform the rules governing pretrial detention, in part by using formulas to help judges better determine which defendants are unlikely to commit crimes while on bail. Doing so not only would make the system more fair, but also would significantly reduce the number of people who are unnecessarily jailed and even reduce crime rates.

Wednesday, June 1, 2011

Five Emerging Practices in Juvenile Reentry - National Reentry Resource Center

By Shay Bilchik, Director, Center for Juvenile Justice Reform, Georgetown University Public Policy Institute; Chair, National Reentry Resource Center Advisory Committee on Juvenile Justice

As many as 100,000 youth under the age of 18 are released from juvenile correctional facilities every year. These young people often return to their communities with complex needs, such as physical and behavioral health issues and barriers to education and employment.

The National Reentry Resource Center’s Advisory Committee on Juvenile Justice is developing resources for the field to increase the likelihood of successful juvenile reentry and promote safer communities. The Committee’s work is currently focused on five emerging areas in youth reentry policy and practice:

  1. Integrating the science of adolescent brain development into the design of reentry initiatives.
  2. Ensuring that reentry initiatives build on youths’ strengths and assets to promote pro-social development.
  3. Engaging families and community members in a meaningful manner throughout the reentry process.
  4. Prioritizing education and employment as essential elements of a reentry plan.
  5. Providing a stable, well-supported transition to adulthood that helps to create lifelong connections.

Click here to read more about these five emerging practices and the resources the National Reentry Resource Center has made available for each of them.