Wednesday, September 17, 2014

Kentucky Criminal Justice Council September Report

The Public Safety and Offender Accountability Act, HB 463 (2011), requires that the Kentucky Criminal Justice Council report on the implementation of the Act's provisions within the various elements of the criminal justice system and make recommendations that will further advance that Act.  The Council met Wednesday, September 17, 2014 at the Justice Cabinet in Frankfort, KY. The following agencies made presentations at the meeting detailing the impact of HB 463 on their respective areas:

 *   Department of Corrections
 *   Department of Public Advocacy
 *   Administrative Office of the Courts
 *   Kentucky Association of Criminal Defense Lawyers
 *   Kentucky Commonwealth’s Attorneys Association

Public Advocate Ed Monahan, who serves on the Council, presented recommendations and discussed the context of falling Kentucky crime rates. Monahan presented 10 Commonsense ways to reduce waste in Kentucky’s criminal justice system and reduce costs for counties and the state: Lasting and Unrealized Benefits of HB 463. The 10 ideas would produce substantial savings from

1.      Reclassifying minor misdemeanors to violations

2.      Creating "gross misdemeanor" classification for low level felonies

3.      Promoting employment/reducing recidivism by creating Class D felony expungement

4.      Reducing days in the county jail by creating "clear and convincing" standard for the pretrial release decision

5.      Modifying violent offender and PFO statutes

6.      Presuming parole for eligible low-risk offenders

7.      Providing alternative sentencing plans for flagrant non-support instead of imprisonment for felony

8.      Creating alternatives to incarceration

9.      Increase the felony theft limit from $500 to $2,000

10.  Reducing waste by limiting capital prosecutions

They are set out in detail at this link ,  Ed Monahan’s PP is found here. Monahan said, “Through the foresight of Kentucky leaders, HB 463 has brought significant savings while not adversely affecting public safety. This is what taxpayers want. However, more reforms are necessary to continue to safely reduce waste in the Kentucky criminal justice system and to fully achieve what taxpayers want. While the Kentucky crime rate declines, the Kentucky corrections population continues to be above projections at a significant and unnecessary cost to the state. There are sound measures to address the waste. They can be accomplished in 2015.”

A survey of defenders statewide on how HB 463 was being implemented had 80 responses from 29 defender offices, Pikeville, Covington, Shepherdsville, Hopkinsville, Paducah, Madisonville, Richmond, Prestonsburg, Maysville, Lexington, Glasgow, Morehead, Somerset, Burlington, LaGrange, Murray, Elizabethtown, Newport, Harlan, Stanton, Owensboro, Columbia, Frankfort, Louisville, Catlettsburg, Bowling Green, London, Louisville and Danville. The major findings were:

 1.  When it comes to reducing incarceration, the most effective solution is reducing sentences, when it can be done in a responsible way.  The reduction in sentences for drug possession is seen as the biggest success of HB 463 in achieving its goals.  All other potential solutions can be thwarted by the discretion available in different parts of the criminal justice system.

 2.  Two promising innovative ideas in HB 463, Deferred Prosecution and Bail Credit, are widely seen as failures, because of the ability of prosecutors and courts to decline to implement the ideas.  Deferred Prosecution is unavailable in large parts of the state with two-thirds of responses saying they worked with at least one prosecutor who does not allow Deferred Prosecution in any case.  More than half of respondents say that Bail Credit has either never been granted or has been extremely rare.  Less than 10% say that Bail Credit is regularly granted, as was intended by HB 463.

 3.  There is good news and bad news on pretrial release.  More than 70% responded that low risk defendants are being released on bond as intended.  Unfortunately, most did not agree that moderate risk defendants are being released in most cases, as anticipated by HB 463.  Also, by overwhelming numbers (95%), respondents said that defendants being released often have extra conditions now, including drug testing, Monitored Conditional Release, or similar programs.

 4.  Probation practices are promising.  Over 80% of public defenders surveyed said that first-time felony offenders are usually probated and almost 60% said that probation violators are generally not revoked at the first opportunity.

COA - Hack - Search without Warrant

Donna Hack- CoA, 9/12/14, to be published. 

The Court that an uncorroborated tip was not sufficiently reliable to merit invasion of the curtilage at 2 a.m. without a warrant. Knock and talk was proper when police saw fire in the yard when a county burn ban was in effect. Even though officers saw a man run into a garage, in light of the totality of the circumstances, it was not reasonable for them to follow him in belief that contraband was in danger of being destroyed. The exigent circumstance of immediate escape was also not possible. Even if they have reasonable, articulable suspicion that criminal activity is afoot, the police may not lawfully enter a private residence without a warrant in order to initiate a Terry stop.

 Julia K. Pearson of the Appeals Branch represented Ms. Hack on appeal; Nathan Goodrich of the Murray office represented Ms. Hack in the trial court.

Contributed by Roy Durham

Monday, September 15, 2014

WDRB - Prosecutor's office focus of criticism from defense attorneys, judges in recent months

From WDRB's Sunday Edition - 

Last year, a Jefferson County prosecutor told a judge in court that there was no 911 recording to turn over as evidence in the case of three men charged with receiving stolen property.

The prosecutor assured the judge and defense attorneys that she had personally spoken with Louisville Metro police to confirm the lack of a 911 call.

Neither of those statements turned out to be true.

An investigator for the defense discovered there was, in fact, a 911 call. And the prosecutor, Shameka O'Neil, who has since resigned, had apparently not spoken with police about getting it, according to defense attorneys.

O'Neil's blunder resulted in the accused men going free. Jefferson Circuit Court Judge Barry Willett dismissed the case in June, citing the prosecution's "outrageous conduct."

This is maybe the most egregious example but not the only mistake that prosecutors in Commonwealth's Attorney Tom Wine's office have made in the last year – mistakes that have at times benefited criminal defendants
 Complete Story

Friday, September 12, 2014

Maryland - Judge who ordered deputy to shock 'rude' pro se defendant has been taken off bench

Updated: It appears that a call by the public defender for the state of Maryland to ban a senior circuit court judge from hearing cases may have been heeded by the state’s top court.

On Friday, the Maryland Court of Appeals said there was “good cause” to remove retired Judge Robert Nalley’s authority to hear cases, the Baltimore Sun reported Wednesday afternoon.

While the appeals court didn’t refer to a complaint by state public defender Paul DeWolfe Jr., he has made headlines by calling for Nalley’s removal from the bench because the judge ordered a deputy to shock a “rude” and “non-responsive” pro se defendant who wouldn’t stop talking.

Complete Story 

Wednesday, September 10, 2014

Pew Article about Kentucky

In this summer's edition of Trust by The Pew Charitable Trust is an article about Kentucky's role Leading With Facts by Peter Perl.

With Pew’s help, Kentucky lawmakers found agreement on divisive issues through research-based evidence that pointed to solid solutions. From controlling prison costs to rescuing its pension fund, the Bluegrass State has become a laboratory of ideas—and a story of accomplishment.

In his 38 years as a public defender in Kentucky, Edward Monahan observed
with growing alarm—and then anger—the irrationality of a juvenile
justice system that incarcerated tens of thousands of young people for offenses
that wouldn’t even be crimes if committed by an adult: running away
from home, alcohol or tobacco use, chronic truancy, persistent tardiness,
or disobeying a judge’s order to return to school and do their homework.
Read the complete article here