Kentucky Added to ABA National Database of Collateral Consequences of Criminal Convictions

The American Bar Association has completed its listing of the collateral consequences of a criminal conviction for the state of Kentucky.  A few years ago, the United States Congress directed the National Institute of Justice to collect and study the collateral consequences of criminal convictions in all jurisdictions throughout the United States.  The National Institute of Justice selected the American Bar Association Criminal Justice Section to perform the necessary research and analysis.  The result is the ABA National Inventory of Collateral Consequences of Conviction (NICCC).  It can be accessed at: http://www.abacollateralconsequences.org/  After agreeing to terms and conditions, one can enter the site and click on the state.  

According to the “resources” page on the website, the ABA’s information on Kentucky was taken, in part, from two law review articles on collateral consequences in Kentucky published in the Northern Kentucky Law Review in 2008.  These articles were also the starting point for the Kentucky Department of Public Advocacy’s (DPA) Collateral Consequences Manual.  DPA had researchers counter-check and update the 2008 information for the publication of its manual in 2013.  It is available at www.dpa.ky.gov.   The manual also includes a thorough chart of immigration consequences of conviction in Kentucky which was put together by experts in immigration law.  In addition to the two law review articles on Kentucky law, the ABA also conducted its own searches using complex algorithms designed to turn up collateral consequences in state statutes and administrative regulations.  The result is comprehensive and thorough.

 

When you click on Kentucky on the national map page, the site allows you to conduct searches in a number of ways.  One can select the collateral consequence of concern and then select the offenses which activate the selected consequence.  Or one can search by keywords.  The website admits that many collateral consequences may serve a protective function: keeping guns out of the hands of violent offenders or protecting the young or elderly against people with a history of abuse.  But the ABA also points out that many collateral consequences “apply across the board to people convicted of crimes, without regard to any relationship between crime and consequence, and frequently without consideration of how long ago the crime occurred or what the individual has managed to accomplish since.”

The website, like the DPA manual, is a valuable starting point for attorneys concerned about adequately informing their clients of the consequences of convictions.  Specific questions from clients will always have to be researched independently.   

Contributed by Glenn McClister

Ed Monahan: Public defenders are crucial to fair criminal justice system: Lex H-L Op-ed

Thanks to all who work for a fair, just and balanced criminal justice system, legislators, judges, prosecutors, criminal defense lawyers, the public.

Special appreciation goes to all who promote the right to counsel and the value of public defenders. The right to counsel stands above all other constitutional protections. According to the U.S. Supreme Court: "Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have."

I am proud of our defenders especially as we celebrate Law Day 2014 because every day they work with courage and resolve to represent every client well.

Examples of Lexington defenders providing high value to citizens they represent and to the community include:

■ Representing an innocent 20-year-old black man wearing a hoodie who was prosecuted for robbery on flimsy evidence and without full investigation of his alibi. After a short deliberation, the jury found him not guilty. Tragically, the client spent 10 months in jail, at taxpayer expense, awaiting release.
■ Resisting an excessive five-year plea offer by representing a client overcharged by prosecutors for felony receiving stolen property and as a second-degree persistent felony offender when a jury found the person guilty of a misdemeanor.
■ Obtaining fair and proportionate punishment when a prosecutor overcharged a client with felony nonsupport. The jury of randomly selected jurors found that a $250 fine was appropriate. 

This representation by counsel is an essential part of our adversary system of justice that has as its fundamental obligation to make sure that fair process is used to achieve reliable outcomes when a person's liberty is at stake.

Tragically, there are a few people who relish the opportunity to attack public defenders. With outlandish rhetoric, these few like Ray Larson say things such as "public defenders are really public offenders."

These few misrepresent criminal justice funding data and criminal justice policy initiatives to seek an unfair advantage. Often, their claptrap is half-truths that can only be intended to mislead those listening. This misinformation is harmful to our American form of justice.

I am not being paid to misinform, misuse data or pompously spew bombast to stir things up. I have a responsibility to seek appropriate funding and reasonable workloads for our public defense system through the use of professional information.

We have a long way to go before sufficient funding is fully achieved for the Kentucky criminal justice system, especially for defenders.

Contrary to the bluster of the partisan few, the reality is that there are substantial financial benefits to society when public defense systems are properly funded.

Public defenders who are competent with manageable workloads and professional independence make sure that the rights guaranteed by our Constitution are protected for the citizen accused and that no one's liberty is taken unless they are proven guilty.

I want our criminal justice system to have proper resources. I work for that reality. I served on the American Bar Association Task Force on Preservation of the Justice System that was co-chaired by Ted Olsen and David Boies.

I have been a part of the Kentucky Bar Association effort to obtain the necessary funding for the Kentucky Court of Justice.

There are practical reasons to provide adequate funding to the whole criminal justice system: To increase timely resolution of cases; to allow each case to be fully dealt with; to increase the reliability of the results.

When staffed adequately, public defenders increase efficiencies, prevent overcharging and expensive wrongful convictions, and lower costly incarceration rates for counties and states by advocating for pretrial release and alternate or reduced sentences.

I call for more resources for our courts and prosecutors every time I have an opportunity. I do so today on Law Day 2014 as I continue to ask for adequate resources for our Kentucky public defense system.

Kentuckians deserve a criminal justice system that has the resources to attract and retain high-caliber leaders to do what is the most important work in our communities: determining whether someone's liberty or life should be taken from them.

View on Lexington Herald Leader webpage

Read more here: http://www.kentucky.com/2014/05/01/3220769/ed-monahan-public-defenders-are.html?sp=/99/349/#storylink=cpy

KYSC – R.S. v. Comm -- Juvenile Trial Practice Procedures and Juvenile Restitution

R.S. v. Commonwealth, 423 S.W.3d 178 (Ky. 2014) - R.S. was charged with complicity to second degree criminal mischief for allegedly participating in the vandalism of a car.  Though the evidence showed his involvement was minor, he was ordered to pay full restitution to the victim.

The case was appealed to the Kentucky Supreme Court upheld the trial court’s verdict.  However, in doing so the Court made several significant changes to juvenile law. 

First, the court eliminated the requirement of a motion for directed verdict in a juvenile adjudication, holding that at the close of the Commonwealth’s evidence, defense counsel should instead move for dismissal under CR 41.02(2).  The significance of the difference is that upon making such a motion the juvenile court is required to “‘weigh and evaluate the evidence,’” rather than “indulge every inference in the [Commonwealth’s] favor’” as required with a directed verdict.

Second, the court found that in juvenile cases where the court seeks to order restitution, the court must hold a restitution hearing, and make findings on the record as to why restitution is in the “best interests” of the child.  Restitution must be reasonable, balancing the interests of making the victim whole with the child’s ability to pay.  Factors to be considered include the child’s age, earning ability, employment status, the ability of parents to pay, and the existence of any legal remedies available to the victim other than restitution.

R.S. was represented at various stages of the appellate process by several former and current members of the Juvenile Post Disposition Branch, including Gail Robinson, Dawn Fesmier, and John Wampler. John Wampler argued the case before the Kentucky Supreme Court

Contributed by John Wampler

Huff Post: Almost Everyone In This Neighborhood Has Been Locked Up At Some Point

From Huffington Post 

Welcome to Beecher Terrace, a housing project in Louisville, Kentucky where nearly everyone has been to jail or prison.

"Prison State," the second half of Frontline's "Locked Up In America" series premiering Tuesday night on PBS, follows four residents of Beecher Terrace as they make their way in and out of the corrections system. 

About 1 in 6 adult residents of the housing complex will cycle in and out of prison each year, according to Frontline. Filmmaker Dan Edge said that all of the current and former inmates he met from the neighborhood told the same story: "Basically, once you've been to prison once, it is hugely challenging not to get sucked back in."

Kentucky had one of the country's fastest-growing prison populations between 1999 and 2009, according to the Pew Center on the States, though the state's rate of serious crime did not increase during that period.

Complete article and a preview of tonight's Frontline episode 

Upcoming on Frontline: Prison State

What to Watch: In Prison State, airing online and on air starting April 29, FRONTLINE follows Kentucky’s attempts to reform its criminal justice program through those it impacts most.

In Latest Reform, Kentucky Softens Approach to Juvenile Offenders

Kentucky Gov. Steve Beshear (D) today plans to sign into law a package of reforms to the state’s juvenile justice program on Friday, the latest step in Kentucky’s effort to overhaul its criminal justice system.

The state is one of several nationwide that has begun to look at new approaches to criminal justice, after decades of spending millions on incarceration. While the motive is largely financial, the impact has begun to be felt, particularly in African-American communities, who are disproportionately represented among 2.2 million people currently incarcerated in U.S. prisons and jails nationwide.

Kentucky has an incarceration problem. Although crime rates have remained low, the state prison population has far outpaced the national average, rising 45 percent in the decade ending in 2009, compared to 13 percent nationwide. Kentucky’s juvenile detention has followed a similar trend even as youth crime has declined.

Complete article and Trailer

C-J article on Prosecutorial Misconduct in Louisville

Prosecutor's cases to be reviewed after mistrial declared in Hammond case

Judge Angela McCormick Bisig declared a mistrial in the murder trial of Dejuan Hammond, a day after Hammond's defense team complained of "prosecutorial misconduct," saying investigators have for five years had a summary of an interview with Hammond's former girlfriend that they had failed to turn over.

Defense attorneys accused Van De Rostyne of not only not turning over the evidence, but of purposefully hiding it and keeping it from attorneys because it contained exculpatory information....

[C]urrent prosecutors on the case acknowledged it appeared the evidence - a summary of an interview with Hammond's former girlfriend - had been tampered with and withheld inappropriately.

"It's one of the more disappointing experiences, to be honest with you, that I've had in the nearly 30 years I've been prosecuting here in this community," said Jim Lesousky, assistant commonwealth attorney.

Complete article 

Louisville jail signs up exiting inmates for Obamacare - Courier-Journal

Louisville Metro Corrections last week began holding daily sign-ups for exiting inmates, and Garcia was among those qualifying for the newly expanded Medicaid under the Affordable Care Act.

It's part of a growing push nationwide by prisons and jails trying to take advantage of expanded health care to curb rapidly rising medical costs in a setting where many are poor, unhealthy and uninsured.

Their motivation is twofold: Expensive inmate hospitalizations lasting more than 24 hours can be billed to Medicaid, cutting local and state costs. And it provides coverage to a population whose high rates of chronic disease, substance abuse and mental illness often land them back in jail, where they are expensive to treat.

Complete Louisville Courier-Journal article