Overloaded Public Defense Systems Result in More Prison Time, Less Justice - Justice Policy Institute Report

New report from Justice Policy Institute : Public defense systems in U.S. have too many cases, too little time, too few resources

The report identifies 5 ways poor quality public defense increases incarceration

1. more pretrial detention for people who do not need it;
2. increased pressure to plead guilty;
3. wrongful convictions and other errors;
4. excessive and inappropriate sentences that fail to take into account the unique circumstances of the case; and
5. increased barriers to successful reentry into the community.

Recommendations from the report include:

• Integrate a holistic and community-based approach to public defense. Community-based and holistic approaches to defense can help address the root causes of justice system involvement and prevent future involvement by treating the whole client. This can improve public safety, save money on corrections and have a positive impact on people and communities.
• Collect better data and conduct more empirical evaluations on the impact of public defense systems on people, communities and criminal justice. Rigorous research and data collection on all justice policies and practices, but especially public defense, can help policymakers make informed decisions on policies that impact public defense.
• Involve public defenders and affected communities in the policymaking process. As people who are directly involved with the laws and policies in a state or locality, defenders are in the unique position of being able to offer insight on the impact these policies have on people, on their law offices, and on the justice system. As such, defenders should be actively engaged in the policymaking process for criminal justice policies as equal partners in the justice system.
• Actively seek out the voices and perspectives of people who have used defender services to gain a better understanding of the realities of various systems and the implications for people. Nobody knows better the impact of criminal justice policies and practices than people who are involved in the justice system. Involving people directly impacted by the justice system will provide crucial information on making better and more effective and just policies.

Full Report
Factsheet
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The Subpoena: Ethical Use and Unethical Myth-Use - Myth No. 4

Myth No. 4: I can subpoena children to court by serving EITHER parent with a subpoena.

Not exactly.  RCr 7.02(2) provides in part that “[a] subpoena for an unmarried infant shall be served upon the infant’s resident guardian if there is one known to the party requesting it, or, if none, by serving either the infant’s father or mother within this state or, if none, by serving the person within this state having control of the infant…”  On those occasions where the parents are divorced and custody is granted to one parent, the defense lawyer must serve the subpoena on the custodial parent, not the non-custodial parent. 

The rule specifies that either parent can be subpoenaed only where there is no known “resident guardian.”  If you serve your own client with the subpoena, and he does not have custody of the children, you will not prevail when the children do not show up and you have to prove to the court proper service of the subpoena in order to get a continuance or other remedy.  Certainly, the non-custodial parent qualifies as the “resident guardian” when the child is visiting pursuant to the decree of custody; but when the child is not visiting the resident guardian will be the custodial parent.  To avoid any doubt, subpoena both parents.

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

2011 DPA Awards Video Now Available

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Welcome - BIll Robinson, ABA President

Keynote - Cat Kelly, Director of the Missouri State Public Defender System

2011 Professionalism & Excellence Award – Mark Solomon

For exemplifying professionalism and excellence in the service of public defender clients

2011 In re Gault Award – Nathan Shirley

For courageous representation of juvenile defendants

2011 Rosa Parks Award – Rosie Nunn

 For courageous investigation on behalf of clients

2011 Furman Award – David Barron           

For courageous representation of capital clients

2011 Anthony Lewis Media Award – Andrew Wolfson, The Courier-Journal

For informing the public on the Gregory Wilson capital case

2011 Gideon Award - Brian Scott West

For courageously advancing the right to counsel for the accused

2011 Public Advocate Award - Senator Tom Jensen

For advancing justice through criminal justice reforms.
 
2011 Public Advocate Award - Representative John Tilley

For advancing justice through criminal justice reforms.

2011 Public Advocate Award - Bruce K. Davis

For advancing the integrity of the justice system through the Kentucky Bar Association
 
2011 Nelson Mandela Lifetime Achievement Award – David E. Murrell

For a lifetime of courageous service in the fight to increase the right to counsel for Kentucky indigent criminal defendants

 

2011 Penal Code Task Force - DPA submits two documents

DPA has recently submitted two documents to the 2011 Penal Code Task Force.  To start their work this year, the Task Force solicited criminal law reform ideas through a survey.  To further assist the Task Force, Public Advocate Ed Monahan created a document outlining the development and impact of the PFO and Violent Offender laws. 

Cost-Efficient Adjustments of Kentucky’s Persistent Felony Offender and Violent Offender Laws submitted to 2011 Penal Code Task Force by DPA

Survey of DPA Attorneys Regarding Needed Penal Code Reform

Proposed Adjustments to Kentucky’s PFO Law (KRS 532.080)

A.    Eliminate PFO enhancements for non-violent felonies.

B.    Eliminate first and second degrees, leaving PFO status to apply only to those with two or more prior felonies without any substantial break in criminal activity. 

C.    Repeal 10-year parole eligibility requirement for PFO first degree.

D.    Require actual imprisonment on prior felonies.

E.    Prohibit all double enhancements by eliminating PFO for all offenses already enhanced by a prior conviction.

Proposed Adjustments to Kentucky Violent Offender Law (KRS 439.3401)

A.    Reinstate 50% parole eligibility for violent offenders, as originally passed in 1986 and maintained until 1998 when Congress conditioned federal funds on passage of 85% parole eligibility. (No federal funds would now be lost by reverting to the prior law.)

B.    Limit the category of violent offenders to those convicted of:
   i.     Murder
   ii.    First-Degree Rape
   iii.    First-Degree Sodomy
   iv.    First-Degree Robbery with a Firearm
   v.    First-Degree Burglary with a Firearm
   vi.    First-Degree Assault

Other Alternative Adjustments to the Kentucky Violent Offender Statute Include:

A.   Limit 85% parole eligibility to intentional conduct resulting in death, serious physical injury, or substantial sexual contact.  Wanton murders, assaults and other non-intentional crimes resulting in death or serious injury and other violent intentional crimes not resulting in death, serious injury, or substantial sexual contact (i.e. first-degree robbery) could be reverted 50% parole eligibility rather than 85%.

B.    Limit each category of crime in KRS 439.3401 to convictions “involving the death of the victim or serious physical injury to a victim.”

C.    Limit violent offenses to any class A or B felony or capital offense involving the use or threatened use of physical force upon another person.

D.    Graduate the parole eligibility according to the Classification of the violent offense, e.g., 75% for violent Class A convictions, 50% for violent Class B convictions, etc. 

E.    Provide that violent offenders who reach a certain age, such as 65 or 70 years, except for those sentenced to life without parole or life without parole for 25 years, be parole eligible.

F.    Repeal the 2006 substantial expansion of the violent offender statute, which added the following crimes to the definition:
   1.    Commission or attempted commission of a felony sexual offense in KRS Chapter 510;
   2.    Use of a minor in a sexual performance as described in KRS 531.310;
   3.    Promoting a sexual performance by a minor as described in KRS 531.320;
   4.    Unlawful transaction with a minor in the first degree as described in KRS 530.064(1)(a);
   5.    Promoting prostitution in the first degree as described in KRS 529.030(1)(b);
   6.    Criminal abuse in the first degree as described in KRS 508.100;
   7.    Burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010, 508.020. 508.032, or 508.060;
   8.    Burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040; or
   9.    Robbery in the first degree
       
G.    Expand the KRS 439.3402 exemption to include additional significant mitigating conditions such as mental illness, mental retardation, the age of the defendant, a victim of  sexual abuse, and those in KRS 532.025:
   1.    The defendant has no significant history of prior criminal activity;
   2.    The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance even though the influence of extreme mental or emotional disturbance is not sufficient to constitute a defense to the crime;
   3.    The victim was a participant in the defendant's criminal conduct or consented to the criminal act;
   4.    The offense was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct even though the circumstances which the defendant believed to provide a moral justification or extenuation for his conduct are not sufficient to constitute a defense to the crime; 
   5.    The defendant was an accomplice in an offense committed by another person and his participation in the offense was relatively minor;
   6.    The defendant acted under duress or under the domination of another person even though the duress or the domination of another person is not sufficient to constitute a defense to the crime;
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sp;  7.    At the time of the offense, the capacity of the defendant to appreciate the criminality of his conduct to the requirements of law was impaired as a result of mental illness or retardation or intoxication even though the impairment of the capacity of the defendant to appreciate the criminality of his conduct or to conform the conduct to the requirements of law is insufficient to constitute a defense to the crime; and
   8.    The youth of the defendant at the time of the crime.

KY Supreme Court Bail Pilot Project Extended and Amended: A Program Coming to Your County

In 2009, the Kentucky Supreme Court Criminal Rules Committee recommended a 9-county piloting of a bail schedule to the Court. The goals were to increase release rates, to have release occur sooner for persons presumed innocent, and to save counties jail money.

The Kentucky Supreme Court in Administrative Order 2009-14 authorized a Bail Pilot Project in Bell, Boyd, Boone, Butler, Campbell, Edmonson, Kenton, Ohio and Pike Counties from January 1, 2010 to December 31, 2010 and extended this program in Administrative Order 2010-12 through June 30, 2011. In Administrative Order 2011-05 it was again extended through June 30, 2012 for further study and the impact of HB 463 on it with some changes. These Administrative Orders effectively amend the bail rules, RCr 4.00 et. seq.

The 2011 changes include

• Amended Uniform Schedule of Bail to be used in 9 counties except in Campbell "the class D felony Schedule shall not be used."

• DUI 1st, AI, PI, Drinking in a Public Place and all violations have been deleted from the Schedule.

•  A new "one bail for all" calculation of bail is made as follows: except where there is at least one Class D felony and the number of crimes charged exceeds five, the bail for all will be the one bail for the highest crime charged. 

The Schedule can be found here.

AOC continues monitoring the Schedule for performance. A new AOC Report will be out in October 2011. Crimes covered by the Schedule are non-violent, non-sexual and generally 1st offense only. A  Judge has the discretion to go below the Schedule. However, if a Judge goes above it, the reasons have to be recorded, creating a record for immediate appeal, if necessary.

The year-end analysis of the 9-county pilot reports pretrial incarceration time, failure rates, and cost savings to the counties. Justice Will T. Scott said that the Report "indicates that the Jailer operated Schedule practically ties Pretrial on reported Failure to Appear Rates (12% vs. 13%) and beats them by 2% on recidivism, while doing it on an average release time of 4 hours versus 35 hours for pretrial - even on Schedule qualified defendants. The statewide average is around 95-100 hours.  So generally, on the types of crimes the Court has limited the Schedule to, it is outperforming the science-based release practices. That's the success of the Schedule as I see it."

The Report also discusses the differing viewpoints on bail schedules:

"When discussing the concept of bail schedules in general, pretrial practitioners, judges and the public are split philosophically. Advocates for bail schedules cite the positive aspects such as monetary and time savings for pretrial staff, a faster release from jail and a higher percentage of releases overall. Those opposed to bail schedules cite the negative aspects such as risk to public safety due to the lack of a risk assessment being conducted, limited judicial discretion in bail decisions, a step away from the use of evidence based practices and unfairness to the poor."

The full Report can be found here.

Featured Case - Lowe - Notice of Appeal & Lesser Included for Assault 2nd

Lowe v. Commonwealth, 10-CA-619-MR (unpublished):

• The Court noted that the notice of appeal which indicated the appeal was taken from a date prior to even the date of the crime was patently erroneous.  “The failure to properly state the order being appealed from could prove fatal to an appeal.”  Thus, trial attorneys need to be careful that notices of appeal and supporting documents are correct.  “[C]ounsel is cautioned to take appropriate measures to ensure such errors do not occur in the future because sanctions may be imposed under different or more egregious circumstances.”

• The trial court should have instructed on assault 4th degree as a lesser included offense to assault 2nd where there was a factual question as to whether there was serious physical injury.  The trial court should not have determined as a matter of law that the victim’s injuries constituted a “serious physical injury.”  The extent of injury is a question of fact for the jury to decide. 

Citing Unpublished Opinions - CR 76.28(4)(c)  Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.

Contributed by Emily Rhorer

Unlocking America: Why and How to Reduce America's Prison Population

This report published by The JFA Institute shows "that incarcerating large numbers of people has little impact on crime" and that the "improper use of probation and parole increases incarceration rates while doing little to control crime" (p. 2). This publication is divided into seven parts: crime rates and incarceration; three key myths about crime and incarceration; the limits of prison-based rehabilitation and treatment programs in reducing the prison population; decarceration, cost savings, and public safety; six recommendations; and concluding remarks.

Unlocking America: Why and How to Reduce America's Prison Population (November 2007)