Two Death Sentence Reversals are Further Evidence the Kentucky Death System is Broken

Last week there were two additional reversals of Kentucky death sentences.

The United States Court of Appeals for the Sixth Circuit reversed Roger Wheeler’s death sentence. The February 20, 2015 decision recognized that a juror was improperly excused from potential jury service in violation of the right to a fair cross section of the community as required by the 6^th Amendment protection.

On February 19, 2015 the Kentucky Supreme Court reversed Michael D. St. Clair’s capital conviction due to improper introduction of prejudicial 404(b) evidence of an unrelated murder in New Mexico allegedly committed by St. Clair, and improper evidence of the New Mexico victim's background.

There has to be a fix to the broken capital system in Kentucky.

Without significant changes, Kentucky’s death penalty system will continue to be inefficient and ineffective

The American Bar Association Kentucky Assessment Team examined all death sentences imposed in the Commonwealth since 1976, and found that, as of November 2011:

§  78 people have been sentenced to death

§  52 of these individuals have had a death sentence overturned on appeal by Kentucky or federal courts, or been granted clemency,

§  an error rate of  67%

Since 2012 there have been 2 additional death sentences and 2 additional reversals. There are 33 persons on Kentucky’s death row.

The Kentucky Assessment Team found that capital prosecutions occur in far more cases than result in death sentences, concluding that, “This places a significant judicial and financial burden on Commonwealth courts, prosecutors, defenders, and the criminal justice system at large, to treat many cases as death penalty cases, despite the fact that cases often result in acquittal, conviction on a lesser charge, or a last minute agreement to a sentence less than death.” 

The comprehensive 2011 program Audit recommended changes must be made to eliminate waste, abuse and error. Areas of needed reform identified by the ABA Kentucky Assessment Team audit included:

• Inadequate Protections to Guard against Wrongful Convictions (Chapters 2, 3, 4).
• Inconsistent and Disproportionate Capital Charging and Sentencing (Chapter 5).
• Deficiencies in the Capital Defender System (Chapter 6).
• Capital Juror Confusion (Chapter 10).
• Imposition of a Death Sentence on People with Mental Retardation or Severe Mental Disability (Chapter 13).
• Lack of Data (Chapter 12).
• Prevention of Wrongful Convictions (Chapters 2, 3, 4, 5).
• Improvement of Defense Services (Chapter 6).
• Ensuring Proportionality in Capital Charging and Sentencing (Chapters 5, 7).
• Error Correction During Post-Conviction Review (Chapters 8, 13).
• Gubernatorial Clemency Powers (Chapter 9).
• Improved Juror Instruction and Comprehension (Chapter 10).

Senator Robin Webb’s Senate Bill 190 implements many of the important reforms recommended by the ABA Kentucky Assessment Audit in an effort to ensure the system works. It does the following:

1. Creates minimum standards for eyewitness identification procedures to eliminate mistaken or false identifications
2. Directs that interviews of suspects be recorded so courts and juries receive accurate and reliable information about a defendant’s statement
3. Prohibits the execution of a person with a severe mental illness
4. Assures the independence and proficiency of the state crime lab
5. Requires ongoing training and competency on death penalty issues for law enforcement, public defenders, prosecutors, corrections officers, and judges
6. Creates a statewide database for reliable ongoing information relating to capital cases
7. Mandates the Department of Public Advocacy to enforce standards for death penalty cases to be handled by trained competent defense attorneys

An overwhelming majority of Kentuckians support fixing the state’s death penalty system

A 2011 poll shows that a majority of Kentuckians support a suspension of executions to allow time for problems within the system to be remedied. The November 30 - December 4, 2011 survey of 405 most likely voters statewide found 62 percent support a temporary halt to executions. The support was consistent across the state: a majority of men, women, urban, suburban, and rural, Republican, Democratic, and Independent voters all favored a temporary halt to executions. The poll, with an error rate of plus or minus 4.9 percent, was conducted for the Kentucky Assessment Team by Lake Research Partners of Washington, D.C.

The two death sentence reversals in the last week are further evidence the Kentucky death system is broken. The time is now to fix the Kentucky death process or eliminate it.  There are some people who should be imprisoned for the rest of their life. Life without parole meets all appropriate needs of our society.

Contributed by Public Advocate Ed Monahan

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT reverses ROGER L. WHEELER death penalty case

Like all potential jurors, potential jurors in Kentucky have a constitutional right to be eligible to serve on a jury when qualified to do so. Defendants like Mr. Wheeler also have a constitutional right to have such jurors eligible to serve on a jury.

The February 20, 2015 decision by United States Court ofAppeals for the Sixth Circuit  recognized these long-standing constitutional rights and vindicated the rights of potential jurors, Kentucky residents.

Specifically, the Sixth Circuit recognized that a juror was improperly excused from potential jury service in Mr. Wheeler’s case. This constitutional violation goes to the heart of “procedural fairness in administering the death penalty” and therefore required vacating Mr. Wheeler’s death sentences. The Court identified the substantial harm, “As the Supreme Court has observed, to permit the

for-cause exclusion of an otherwise-eligible juror ‘unnecessarily narrows the cross-section of venire members’ required under the Sixth Amendment and ‘stack[s] the deck against the petitioner. To execute [such a] death sentence would deprive him of his life without due process of law.’ Gray v. Mississippi, 481 U.S. 648, 658-59 (1987) (quoting Witherspoon v. Illinois, 391 U.S. 510, 523 (1968)).”

David Barron and Joe Flood represent Mr. Wheeler. The Sixth Circuit decision is found at  this link.  

David Barron said, “Mr. Wheeler has been on death row for approximately fourteen years. While this ruling takes a step towards protecting the integrity of the judicial system and corrects an unconstitutionally imposed sentence, it further calls into question the administration of the death penalty and the fairness of the process of arriving at a death sentence, for it took fourteen years for Mr. Wheeler’s constitutional rights to be vindicated and an extraordinary amount of money expended during that time that could be put to better use. For example, the money expended to seek a death sentence against Mr. Wheeler and the Commonwealth’s efforts to uphold an unconstitutional death sentence could have easily been used to for much needed expenses towards solving cold cases or educating our youth so that it is less likely they will later end up in the criminal justice system.”

KYSC - St.Clair - Reversing on several grounds

Michael D. St. Clair v. Commonwealth, 2012-SC-000130, rendered 2/19/15, to be published, reversing. Opinion by Justice Noble, all concurring.

In St. Clair’s third Hardin County capital kidnap trial, St. Clair was convicted of capital kidnapping and sentenced to death in 2012. The jury found three aggravators, that the victim was not released alive, that St. Clair had a prior record of conviction for a capital offense, and the kidnapping was committed during a robbery. The Kentucky Supreme Court concludes here on direct appeal that the entire case must be remanded for a possible fourth trial due to improper introduction of prejudicial 404(b) evidence of an unrelated murder in New Mexico allegedly committed by St. Clair, and improper evidence of the New Mexico victim's background.

The case in Hardin County has now been reversed on appeal twice following jury trials due to errors committed by the prosecution. Additionally, a third trial ended in a mistrial due to a prosecutor’s improper opening statement in which he alluded to an unrelated New Mexico murder. The Supreme Court attributed some of the difficulty in trying this case to choices made by the prosecution. Had the prosecution joined the kidnapping case in Hardin County with the murder case in Bullitt County, the duplicative three trials (and now possibly a fourth) in Hardin County could have been avoided and evidentiary difficulties could have been avoided. (See page 8 of the Opinion.)

The common sense, cost effective reform identified in the ABA Kentucky Assessment Team’s 2011 Report and Senator Robin Webb’s SB 190 will help fix problems in Kentucky’s troubled death penalty system.

The Opinion contains numerous evidentiary rulings, as follows:

1)      Evidence of the murder of a victim in New Mexico was reversible error because this was a kidnapping case; however evidence of the robbery and abduction of that victim was not error;

2)      Victim background evidence related to the victim in New Mexico was reversible error; “evidence of victims of other crimes beyond those being tried has no place in a criminal trial”;

3)      Proof of St. Clair’s statement that killing people was easy, and proof that St. Clair saw the killing as a joking matter and that it had excited him was improper character evidence. It should not be allowed in a retrial.

4)      Evidence that St. Clair tore up the photo of the New Mexico victim’s daughter  and commented, there’s “a bitch that’s going to grow up without a daddy” was inadmissible evidence of “despicable character”:

5)      Evidence that before his escape from jail in Oklahoma St. Clair was considered a high security risk held in maximum security was admissible because it was relevant to his motive “to do anything to avoid going back to prison” including attempted murder of a police officer.

6)      Evidence that St. Clair had at least one LWOP sentence waiting for him in Oklahoma was relevant and admissible to show his motive to attempt to kill Trooper Bennett.

7)      Evidence that St. Clair was a danger to the friends that sheltered him and that he was already wanted for murder when he arrived in Kentucky was inadmissible, but prejudice was cured by admonition.

8)      The court did not err in excluding details regarding that the aaltperp’s prior murder because it was not similar enough to the Kentucky kidnap/murder.

Wanton prosecutorial misconduct is not enough.

While the Kentucky Supreme Court acknowledges in this Opinion that there was evidence that wanton prosecutorial misconduct caused the mistrial of the second, 2009 Hardin County capital kidnap trial, the Court here holds that merely wanton prosecutorial misconduct does not meet the “high standard” for a mistrial; to win a mistrial one must prove that misconduct was intended to cause a mistrial. The defense moved for mistrial and double jeopardy did not bar the third trial.

Death penalty for kidnap upheld without jury finding of murder.

The Court fails to answer whether the trial court erred by ignoring the mandate in St. Clair v. Commonwealth, 174 S.W.3d 474 (Ky. 2005) (Hardin I) requiring a jury finding that St. Clair murdered the victim as a pre-requisite to imposing a death penalty. The Opinion—contrary to the rule in the vast majority of states—approves (in dicta) allowing the death penalty for capital kidnap regardless whether a kidnap victim dies accidentally.

St. Clair was represented at trial by Scott Drabenstadt and Justin Brown. He was represented on appeal by Susan Balliet, Sam Potter, and Robert Yang.

Contributed by Susan Balliet.  

Senator Webb files bill to reform Kentucky’s death penalty laws

Senator Robin L. Webb, D-Grayson, has filed a bill to reform Kentucky’s death penalty process to ensure an innocent person is not executed.

“If you have the death penalty in the commonwealth, we need to make sure it is administered in a fair and just way,” said Senator Webb, who is a practicing attorney. “There is a humanitarian aspect to this in additional to a fiscal impact to the state. We’ve had a lot of litigation over our manner of execution.”

The American Bar Association released an intensive report in December 2011outlining a myriad of problems with Kentucky’s death penalty. It cited 95 specific things that need to be fixed. Senate Bill 190 is a response to the reasoned recommendations of the ABA Assessment Team, which included two retired Kentucky Supreme Court Justices, a former chair of the House Judiciary Committee, distinguished law professors and respected bar leaders, all from Kentucky. This was the most extensive study and analysis of the manner in which the death penalty is administered in Kentucky that has been undertaken.

“The Kentucky Death Penalty Assessment Team, sponsored by the American Bar Association, spent over two years studying virtually every aspect of the administration of the death penalty in the commonwealth,” said Linda Sorenson Ewald, co-chair, Kentucky Penalty Assessment Team. “Our review led us to the inescapable conclusion that our current system is deeply flawed and in serious need of reform. The Kentucky Assessment Report was released over three years ago and, to date, not a single recommendation has been implemented. Senate Bill 190, introduced by Senator Robin Webb, is a significant step forward in addressing some of the most critical problems of our capital system. Something must be done immediately. We cannot continue to close our eyes to the unfairness of our current practices and procedures and to the risks of executing an innocent person.”

Senator Webb’s bill calls for more law enforcement training in the use of lineups, interrogations and mental health issues. It would also require judges to have training in recognizing cognitive disabilities and mental health issues.

The bill also addresses the growing use of DNA in criminal prosecutions and in exonerating inmates on death rows across the United States. SB 190 would move the state crime laboratory to an independent office in the Justice and Public Safety Cabinet, develop law enforcement training relating to biological evidence and ensure defense attorneys have equal access to DNA testing. Senator Webb said one important goal of the legislation is to make sure biological evidence is preserved.

SB 190 builds on legislation from 2013 (House Bill 41) that allowed people already convicted of a crime to get evidence in their cases tested for DNA. That process is known as post-conviction DNA testing.

It would also set minimum standards for both defense attorneys and medical examiners involved in death penalty cases. That’s in addition to creating guidelines for the exercise of prosecutorial discretion in capital cases.

“This legislation is not to abolish the death penalty,” said Senator Webb, “but rather recognizes that if we have the death penalty, it must be done right. We must make sure that any deficiencies in the administration of the death penalty in Kentucky are corrected.”

The assessment team found that from 1976 to November 2011, 78 people were sentenced to death and 52 of these individuals had a death sentence overturned on appeal or federal courts, or been granted clemency. Just last week, there were two additional cases of men on Kentucky’s death row having their convictions overturned by two separate courts. Within the period from 1976 to 2011, the assessment team found an error rate of 67 percent.

“Since 1976, there has been one involuntary execution in Kentucky while we have had most death sentences reversed because of grievous errors at the cost of hundreds of millions of dollars. Since 2011 we have Kentucky legal experts telling us through a comprehensive Program Audit that we have to make many changes to fix the broken system. Last week there were two additional reversals of Kentucky death sentences because of mortal errors. A majority of Kentuckians support a suspension of executions to allow time for problems within the system to be remedied. The time is now to reduce the error, waste, and abuse with the common sense reforms in Senator Webb’s SB 190,” said Ed Monahan, public advocate, Kentucky Department of Public Advocacy.

Others also lend their voices in support of SB 190.

“The Kentucky Coalition to Abolish the Death Penalty appreciates Senator Webb's willingness to limit the possibility of wrongful convictions in Kentucky's death sentencing process. Until full repeal is possible, and Kentucky gives up on the death penalty, as did Justice Harry Blackmun and The American Law Institute, Senate Bill 190 is a step in the right direction,” said the Rev. Patrick Delahanty, chair, Kentucky Coalition to Abolish the Death Penalty.

“In December of 2011, the Kentucky Death Penalty Assessment Report pointed to numerous ways in which the death penalty in Kentucky was broken, and called for a temporary suspension of executions unless the problems were addressed. If enacted into law, Sen. Webb's SB 190 would go a long way toward ensuring fairness and reliability in Kentucky's death penalty procedures. Unless SB 190 is passed, the problems addressed in the 2011 report will continue to call into question whether Kentucky can have a constitutional death penalty,” said Ernie Lewis, KACDL legislative agent and former Kentucky Public Advocate.

SB 190 has been assigned to the Senate Judiciary Committee. 

KY should reduce the error, waste, abuse with commonsense reforms of KY’s costly death penalty process or eliminate the penalty

Kentucky has an expensive and time-consuming process of prosecuting many death eligible cases as capital cases but almost all cases end with a life or life without parole sentence. And the 35 year error rate for the few cases that result in a death sentence is 67%.

A 2011 Kentucky Audit by the ABA KY Assessment Team uncovered major deficiencies in the way the death penalty has been implemented in Kentucky since 1976. The Audit evaluated Kentucky procedures and practices against national ABA capital benchmark protocols and made 93 Recommendations in the following areas:

ABA Number of Recommendations Per Chapter
Chapter	Title	Recommendations
2	Collection, Preservation & Testing of DNA and Other Types of Evidence	4
3	Law Enforcement Identifications and Interrogations	9
4	Crime Laboratories and Medical Examiner Offices	2
5	Prosecutorial Professionalism	6
6	Defense Services	5
7	The Direct Appeal Process	1
8	State Post-Conviction Proceedings	12
9	Clemency	11
10	Capital Jury Instructions	7
11	Judicial Independence	6
12	Racial and Ethnic Minorities	10
13	Mental Retardation, Mental Illness, and the Death Penalty	20
Total Recommendations		93

Senator Robin Webb’s Senate Bill 190 implements many of the important reforms recommended by the ABA KY Assessment Audit in an effort to ensure the system works. The reforms in SB 190:

1. Create minimum standards for eyewitness identification procedures to eliminate mistaken or false identifications
2. Direct that interviews of suspects be recorded so courts and juries receive accurate and reliable information about a defendant’s statement
3. Prohibit the execution of a person with a severe mental illness
4. Assure the independence and proficiency of the state crime lab
5. Require ongoing training and competency on death penalty issues for law enforcement, public defenders, prosecutors, corrections officers, and judges
6. Create a statewide database for reliable ongoing information relating to capital cases
7. Mandate the Department of Public Advocacy to enforce standards for death penalty cases to be handled by trained competent defense attorneys

The time is now to fix the KY death process or eliminate it.  There are some people who should be imprisoned for the rest of their life. Life without parole meets all appropriate needs of our society.

Contributed by Ed Monahan

KYSC - Ross - Batson/Gender application

Cole Douglas Ross v. Commonwealth, 2012-SC-000775, rendered February 19, 2015, TO BE PUBLISHED, Reversing and Remanding

The Supreme Court reversed Ross’ convictions for Murder and Arson because the trial court improperly applied the holding in Batson v. Kentucky.  After a challenge was made by the defense to the prosecution’s use of peremptory strikes against two African-American venire members, the prosecution confessed that the only reason it had used a peremptory against the African-American female juror was because she was a woman.  The defense then challenged the prosecution’s discriminatory use of peremptory strikes to remove women from the venire.  The Commonwealth’s star witness was the accused’s ex-girlfriend, a woman of questionable credibility and morals.  Fearing that women on the jury might judge the witness harshly, the prosecution confessed, their plan was to remove as many female jurors as possible.  The trial court held that the use of strikes was permissible.

On appellate review, the Kentucky Supreme Court held that the use of peremptory strikes to remove jurors of one gender was discriminatory.  The Court held that the prima facie showing of discriminatory basis of the strikes was established “on a silver platter” when the prosecutor frankly admitted that he was using strikes to remove women from the panel, apparently unaware that such practice was discriminatory.  Further, the Court held, that the prosecutor’s discussion with the venire during voir dire clearly buttressed the finding of discriminatory intent when the prosecutor questioned whether the women on the panel would be quick to judge the witness because it had been his experience that “women are sometimes harder on women.”  Because of the candid admission of attempting to remove women with the strikes, the line of questioning displaying bias and the fact that the prosecution used seven of their nine peremptory strikes to remove women from the panel, the Court was satisfied that a prima facie case of discriminatory use of strikes had been established.

Moving on to the second part of the Batson analysis, the Court was unpersuaded by the prosecution’s “gender neutral” reasons for the exercise of the strikes.  Undoubtedly tainted by the clearly sexist questioning of the venire and the admitted use of strikes in a gender-biased manner, the Court was unpersuaded by the “demeanor-based reasons” for the use of strikes against female jurors.  The prosecution candidly told the trial court that instead of choosing which jurors to strike, he had chosen which he wanted to remain on the panel and then used his peremptory strikes to remove as many of the remaining jurors as he could.  The Court held that such practice is not acceptable as they are too vague and are not capable of adequate review.  Continuing the Court’s recent line of cases wherein some insight into the reason for the strike must be articulable, that “gut instinct” strikes are not allowable and some justification for the use of the strike must be able to be articulated when challenged, the Court held that such vague reasons for the exercise of strikes can cloud discriminatory reasons and should not be found to be sufficiently neutral to survive a challenge.  The Court stated that stated reasons for use of strikes "must be clear and reasonably specific such that the

opponent of the challenge has a full and fair opportunity to demonstrate pretext in the reason given and the trial court to fulfill its duty to assess the plausibility of the reason in light of all the evidence."

Contributed by Linda Horsman

Kentucky's Sentencing Reform Package to Improve Public Safety and Save Taxpayers Money Receives Support of National Groups

National groups support Rep. Yonts efforts to safely reduce correctional costs. Their letter of support is  posted here. The groups include:

• Crossroad Bible Institute
• Grassroots Leadership
• In The Public Interest
• International CURE
• Pretrial Justice Institute
• Prison Policy Initiative
• Southern Center for Human Rights
• The Ella Baker Center for Human Rights
• The Sentencing Project

The legislative package offers lawmakers the opportunity to address sentencing reform and save money in 2015 that could be used to provide more treatment for heroin addicts. The package of bills includes:

• HB 305 - Reduce low-level misdemeanors to violations with pre-payable fines,saving jail, prosecution, and defense expenses;
• HB 286 -Permit local jailers to grant limited service credits against an inmate's sentence for good behavior and educational achievement, saving jail costs and encouraging  good behavior, and also mandate alternative sentencing for flagrant non-support (instead of imprisonment), saving prison costs and better enabling delinquent parents to work to support their children;
• HB 285 - Require parole after a fixed period for nonviolent offenders serving a Class D sentence (currently the minimum is one year up to a 5 year maximum; offenses include trafficking marijuana near a school building)  and release for misdemeanants who have good behavior, saving county and state incarceration costs;
• HB 284 -Adopt of a “clear and convincing” standard for pretrial release decisions and findings specific to the defendant, guaranteeing that defendants who are low-risk and entitled to release are not needlessly held in jail at county expense; and
• HB 304 - Modify the persistent felony offender statute, saving prison costs and reinforcing public safety by facilitating proportionate sentences that align with the seriousness of the offense.  The measure limits application of persistent felony offender sentencing to specified triggering offenses; give jury discretion in this sentencing; allow previous offenses to be used only if defendant was incarcerated and finished serving the sentence within 15 years prior to committing the present offense.

Contributed Ed Monahan

KYSC - Gamble - 2nd Degree Trafficking Enhancement

Commonwealth v. Gamble, 2013-SC-000141, rendered 2/19/15, to be published, reversing.

A defendant can have his sentence enhanced as a persistent felony offender (PFO) when his underlying felony is second-degree trafficking in a controlled substance.

The second-degree trafficking statue states that, for anyone who traffics in any quantity of a controlled substance specified in the statute in an amount less than the amounts specified in the statute, “except that KRS Chapter 532 to the contrary notwithstanding, the maximum sentence shall be no greater than three (3) years.”  (See KRS 218A.1413(2)(b)(1).)  The Court found that “except that KRS Chapter 532 to the contrary notwithstanding” refers expressly to the Class D felony categorization and penalty range espoused in KRS 532.060, not to the portion of Chapter 532 that deals with PFO enhancement.  The Court also said that, because the PFO statute expressly prohibits the enhancement of a first-degree possession of a controlled substance sentence (see KRS 532.080(8)) but is silent on second-degree trafficking, the General Assembly demonstrated that second-degree trafficking is eligible for PFO enhancement.

The Court concluded by stating that in the event the General Assembly intended on preventing a second-degree trafficking in a controlled substance conviction from being enhanced by the PFO statute, it can expressly amend the statute to better reflect its intent in the future.

Contributed by Stephen Buck 

A New Focus on Lockups at the Justice System's Front End - The Crime Report

Amid increasing attention to crowded U.S. prisons, the Chicago-based MacArthur Foundation is trying to shift the focus to local jails that house many more people for much shorter periods, often in poor conditions.

The foundation assembled criminal justice leaders from around the U.S. in Washington, D.C., yesterday to outline a plan to spend $75 million over five years to promote reforms that could reduce jail populations and hold down crime rates at the same time.
.... 

Several panelists yesterday, noting high repeat-crime rates among released prisoners in the U.S., complained of what Kentucky state Public Advocate Ed Monahan called a "lack of sustained leadership." Using an analogy to auto manufacturing, Monahan said that a company producing autos that failed at the rate that ex-prisoners do would go out of business or change executives.

Read the complete article

February 2015 edition of the Advocate is now online

In This Month’s Advocate:

• Jury Selection in Capital Cases
• University of Louisville Loan Forgiveness
• Kentucky Voters Support Temporary Halt of Executions
• Waste in Capital Prosecutions from Imprudent Charging Practices
• Five ways to Reduce Error, Waste, and Abuse in Kentucky Capital Prosecutions
• Recommendations of 2011 Kentucky Capital Audit have not been Implemented

Click HERE to download the edition 

Safely reducing county and state incarceration costs in 2015

By Representative Brent Yonts, Vice Chair, House Judiciary, Chair House State Government Committee

Government is responsible for keeping us safe. Our city, county and state governments continue to do a very good job of keeping us safe. Our crime rate is lower than the nation’s crime rate and it is declining.

However, the cost of incarceration is high in Kentucky and we are wasting taxpayer money in incarcerating low-risk inmates for longer than is necessary.  Jails remain the highest cost for most every county. The cost of state prisons is nearly a half billion dollars. It is just common sense that the more money government spends on incarceration, the fewer funds there are for important other community and state needs.

While the increase in our incarceration costs has lessened due to the significant criminal reform in 2011, the projected savings have not been fully achieved and Kentucky has spent over $61 million in unbudgeted funds for a prison population that was higher than forecasted.  More money will have to be spent unless the General Assembly does something in 2015. State prison costs continue to increase and remain the most significant share of the Kentucky criminal justice system, taking 36% of the total system funding.

With our worsening fiscal outlook in the coming years, many have commented on the need for the General Assembly to make additional modest adjustments in 2015 that will reduce county and state incarceration costs to address full implementation of the 2011 reform.

There are a variety of ideas that will accomplish the objective of smartly reducing costs in a way that ensures safety. Most of the ideas include modestly reducing the discretion of the parole board, judges, and prosecutors to increase the safe release of persons who have been evaluated by evidence-based, validated risk assessments as having a low risk of reoffending, while still holding these offenders accountable for their criminal behavior through sanctions and supervision.

In addition to the high financial cost of unnecessary incarceration, many people who are jailed face unintended negative consequences.  For instance, there is substantial Kentucky data indicating that keeping low-risk offenders in jail for just a few days is correlated with future criminal activity.  In other words, in some circumstances, keeping a low-risk person in jail when they could be released actually decreases future public safety.

Fortunately for taxpayers, there are a growing number of leaders nationally and in Kentucky calling for smart reduction of correctional costs. For instance, the Kentucky Chamber of Commerce’s report, The Leaky Bucket: 5 Years Later (July 2014) calls on Kentucky legislators to pass more legislation to reduce correction costs.

I have been working with a coalition of county and state groups to identify safe ways to reduce our costs. After listening to these professionals, I filed a series of bills to:  

1.       HB 305 - Reduce low level misdemeanors to violations with pre-payable fines, saving jail, prosecution, and defense expenses;

2.       HB 286 -Permit local jailers to grant limited service credits against an inmate's sentence for good behavior and educational achievement, saving jail costs and encouraging  good behavior, and also mandate alternative sentencing for flagrant non-support instead of imprisonment, saving prison costs and better enabling delinquent parents to work to support their children;

3.       HB 285 - Require parole after a fixed period for nonviolent offenders serving a Class D sentence and release for misdemeanants who have good behavior, saving county and state incarceration costs;

4.       HB 284 -Adopt of a “clear and convincing” standard for pretrial release decisions and findings specific to the defendant, guaranteeing that defendants who are low-risk and entitled to release are not needlessly held in jail at county expense; and

5.       HB 304 - Modify the persistent felony offender statute, saving prison costs by reserving the highest sentences for violent offenders and career criminals.

The KY Chamber’s call for reducing correction costs has been joined by Jim Waters, President of the Bluegrass Institute. The 5 bills that I have filed in 2015 will save real dollars for counties and the state. These bills build on the 2011 bipartisan support with additional improvements to be good stewards of taxpayers’ dollars.

Our jails have many low and moderate risk detainees being unnecessarily housed at county expense. While our crime rates decline, our correctional costs are unnecessarily increasing.  Increased funding for rising correctional costs dries up funds for important local and state needs. With passage of these bills, we will safely reduce county and state incarceration costs in 2015. That is what taxpayers expect of us.

Teen sex a crime? Ky high court to hear case: Louisville C-J

The eighth-grade boy and his seventh-grade girlfriend had been dating about 1½ years when they decided to have sex, which they did twice at her house when nobody was home.

The boy, 15, also texted two nude pictures of himself to the girl, 13, who sent him one back
.
When the girl's parents found the pictures on her phone, they took out a warrant in Woodford Circuit Court, and the boy was charged with sexual misconduct, a misdemeanor, and possessing matter portraying a sexual performance by a minor, a felony.

Even though "B.H," as the boy is identified in court records, was too young to consent to sex — the minimum age is 16 in Kentucky — he was charged with a crime for engaging in it. And even though the boy's parents could have gone to the county attorney's office and taken out charges against the girl — just as C.W.'s parents had done — only B.H. was charged.
....
"This case matters to any parent who has a teenage child, or will have a teenage child," B.H.'s lawyer, assistant public advocate John Wampler, said in an interview. "The simple fact is that unfortunately, many young teens under 16 are having sex with each other and engaging in sexting.

"If the Commonwealth's position is held to be correct, then approximately one third of all teenagers, according to recent statistics, could be charged with a felony sex offense," Wampler said. "That should strike fear in the hearts of every parent who has bought their child a smartphone.

Read the entire article on the Louisville Courier-Journal

1 pill, 10 years: Court reviews vet's sentence: Louisville C-J

To his lawyer, James Kidd is the "epitome" of the kind of person the Kentucky General Assembly does not want sitting in prison.
An injured Gulf War veteran with no prior felony record, Kidd was convicted of drug trafficking in a controlled substance in 2009 for selling a single pill and sentenced to 10 years in prison.

His sentence was probated on the condition that he leave Kentucky for five years, but when he returned to visit his ailing mother in 2012, a circuit judge in Lee County revoked his probation and ordered him to serve the 10 years, the maximum allowed by law.
To Public Advocate Ed Monahan, locking up offenders like Kidd is why Kentucky is wasting millions of dollars a year on corrections even as crime rates fall.

"We should not be imprisoning a wounded veteran for 10 years at an average year's cost of $21,906 … because he was technically in violation of his conditions of probation," Monahan said in an email.
....

On Thursday, the Kentucky Supreme Court will hear arguments on whether Kidd should have been sent to prison, or whether Circuit Judge Thomas Jones should have imposed lesser sanctions, such as electronic monitoring — as spelled out in the state's groundbreaking 2011 sentencing reform law designed to reduce incarceration and steer tax dollars into drug treatment.
....

Jewell and Monahan said the case also will be crucial in determining whether judges must heed House Bill 463, the Public Safety and Offender Accountability Act, which requires that graduated sanctions be considered before an offender on probation is sent to prison.

Read the complete story on the Courier Journal's web page