Presentation to Budget Review Subcommittee

The Department of Public Advocacy, Kentucky’s statewide public defense program, presented on its funding needs to the House Budget Review Subcommittee on Justice and Judiciary on Tuesday February 2, 2010. During the 50 minutes of testimony, Public Advocate Ed Monahan addressed the Committee on the following areas:

• Appreciation for your significant help. We are grateful beyond words for your help to DPA last year. The General Assembly’s and Governor’s help to DPA averted a collapse of the criminal justice system. This has gotten DPA through. Adequate funding for prosecution and public defense makes sure that the system does not shut down and advances our highest responsibility, our public safety. Because of your help, Kentucky remains a safe place for all of us as you continue to keep the criminal justice system functioning.

• DPA needs adequate resources to fulfill its constitutional role.
  DPA very much wants to continue to play its constitutional role in the criminal justice system and needs sufficient resources to meet its responsibility legally and ethically.

• DPA does not control its workload as courts appoint DPA to cases. DPA must handle all the cases it is appointed to.
• DPA’s projected FY10 average newly opened trial caseloads of public defenders is 453
  
• Louisville and Lexington Offices are projected to have average caseloads over 500
• Stanton, Morehead, and Richmond Offices are projected to have average caseloads over 475 due to increased appointments of more than 10%
• Lagrange Office’s caseload increased 4% last year and 8% the previous year and are projected in FY 10 to be at 420 newly opened cases per lawyer
• Other office caseloads will be at:
  
• Covington - 461
• Bullitt – 434
• Hopkinsville – 439
• LaGrange - 430
• Madisonville – 401
• Richmond – 485

• Bar Leaders seek adequate funding for criminal justice system. The Kentucky Bar Association’s Criminal Justice Roundtable, an advisory group of judges, prosecutors, defense lawyers and law professors seeking common ground to ensure proper funding of the state’s criminal justice system, forwarded its December 2009 Findings and Recommendations to the Governor and the leadership of the Kentucky General Assembly for their consideration in the budget-making process. The KBA Roundtable’s important Findings and Recommendations include:

• Finding No. 2E: Courts, prosecutors and public defenders do not have control over the crime rate or discretion in the number of cases adjudicated in the criminal justice system. Therefore, adequate funding is not a discretionary matter.

• Recommendation No. 2: Adequate funding should be provided to the courts, prosecutors, and public defenders so the criminal justice system in Kentucky can properly protect constitutional rights, guarantee public safety, and ensure that the courts render valid and reliable results in a timely and fair manner. 

• Policy assistance in reducing incarceration costs and recidivism.  The state is seeking to reduce the increase in incarceration costs. DPA has policy ideas to assist in that initiative that have been presented to the Kentucky Criminal Justice Council and the Joint Judiciary Committee. One effort unique to DPA is providing DPA alternative sentencing social workers who develop and present alternative sentencing plans to judges that result in sentences that do not involve incarceration and which have lower recidivism rates than persons incarcerated. This provides significant cost savings for modest investments. This pilot project has been independently evaluated. If it is further funded, it can provide more incarceration savings.

Full handout provided to the committee

(Frankfort, Kentucky, January 29, 2010) Today, the Department of Public Advocacy commented on the execution regulations proposed by the Department of Corrections. A copy of DPA’s written comments are available here.

DPA appreciates the proposed regulations clearly authorizing daily attorney contact.  When an execution is imminent, time and client access to his attorney are critical regarding all legal matters. However, DPA has concerns about the proposed regulations. These concerns include a need to explicitly authorize:
Continuous “personal access” on the day the execution is scheduled by the client with his attorney as required by the Kentucky Supreme Court in McQueen v. Parker, 948 S.W.2d 121 (Ky. 1997);
Contact by agents of the attorney, including mental health professionals;
Bringing legal documents to the client in a confidential way.

DPA makes these and other comments on the regulations in light of the fact that public defenders represent the vast majority of clients on Kentucky’s death row. Defenders play a critical role in ensuring full due process for their clients who have significant legal claims. People on death row are severely mentally ill, had lawyers who were ineffective, and who had trials resulting in serious errors that remain uncorrected.

These proposed regulations are before the people of the Commonwealth at a time when scrutiny of the administration of the death penalty is under way and after a history of an enormous number of errors in Kentucky capital cases.

Since 1967 Kentucky has executed 3 people (2 were volunteers) and 3 KY Governors have granted clemency to 5 people sentenced to death. Since 1976, 92 death sentences have been returned in Kentucky state courts.  Currently, there are 35 people on KY’s death row. Of the 50 KY capital cases that have exhausted review by the Kentucky Supreme Court and the Sixth Circuit Court of Appeals, 42 have been reversed.

An important independent objective review of the fairness and accuracy of Kentucky’s death penalty system and its administration is taking place in Kentucky. In November 2009 the American Bar Association (ABA) Assessment Team composed of prominent Kentucky leaders met to begin the process for reviewing the way the death penalty in Kentucky has been administered against national standards.

“The error rate in KY capital cases over the last 33 years is stunning and unacceptably high,” said Public Advocate Ed Monahan.  “It is the leading reason that indicates the system is broken. The huge rate of error shows that the system cannot get it right. DPA continues to call for a moratorium since it will prevent any execution of an individual whose conviction and death sentence have been imposed by an unfair and arbitrary system. A moratorium is especially needed while the ABA does its assessment in Kentucky.”

Press Release - DPA Comment on Execution Regulations 

Baze v Rees - Franklin Circuit Court Findings 

FRANKFORT, Ky. -- An advisory group of judges, prosecutors, defense lawyers and law professors  seeking common ground to ensure proper funding of the state’s criminal justice system forwarded its findings today to Gov. Steve Beshear and the leadership of the Kentucky General Assembly for their consideration in the budget-making process.

The Kentucky Bar Association’s Criminal Justice Roundtable recommended the development of a common effort to seek adequate funding for prosecutors and public defenders and outlined several “common principles” for reporting case numbers presented by the Kentucky Department of Public Advocacy (DPA), the state’s Unified Prosecutorial System comprised of County Attorneys and Commonwealth’s Attorneys under the chairmanship of the state Attorney General’s Office, and the state Administrative Office of the Courts (AOC).

“Especially now, when faced with these tough economic times, it is critical that judges, prosecutors and public defenders work together to ensure adequate funding for the proper functioning of the criminal justice system,” the recommendations state. “The influx of cases and the workload of the courts are beyond the control of the judiciary, the prosecution and the defense. Their roles and responsibilities are not discretionary -- they have no ability to reduce or limit the demands placed on them by constitutional requirements and statutorily imposed duties, including the right to counsel, the right to a speedy trial and the right to due process. These are rights that are mandated by law and essential to a free and safe society. Adequate resources must be provided to comply with this mandate and to protect the citizenry and all those who come before the courts seeking justice.”

Case number calculations are often used by each group to demonstrate the amount of work accomplished and the amount of funding necessary to fulfill each organization’s constitutional duties. While a strict, uniform method of counting cases may not be possible at the current time, “prosecutors and public defenders should identify total cases as the number of cases opened each year, plus the cases carried over into the next year,” according to the recommendations adopted by the roundtable. “Additionally, if workload is to be accurately and equally measured, both the prosecution and defense should count probation revocation cases.”

In seeking funding requests, the roundtable urged prosecutors and public defenders to establish a common funding formula “that will facilitate proper, uniform and balanced allocation of needed resources for both of their essential functions, as well as that of the entire criminal justice system.”

KBA President Charles E. “Buzz” English, Jr., of Bowling Green said the association formed the Criminal Justice Roundtable and its subcommittee in October to foster better communication on issues central to the advancement of justice in the Commonwealth.

“As an integrated bar representing all Kentucky lawyers, the Kentucky Bar Association is interested in advancing these interests and improving the effective administration of justice in the courts of our Commonwealth,” English said. “By convening and facilitating this discussion, we hope to promote communications and cooperation among the key players in the interest of all stakeholders, the most important being the public at large.”

Edward C. Monahan, Public Advocate for the state DPA, said that “while we stand in different places in the courtroom, we can and should join together to seek adequate funding for Kentucky’s criminal justice system to ensure fair process, reliable results and public safety. The work of the KBA Roundtable under the leadership of our KBA President significantly helps on this important journey of achieving adequate funding for the good of the Commonwealth.”

Allen C. Trimble of Williamsburg, Commonwealth Attorney of the 34th Judicial Circuit and president of the Kentucky Commonwealth’s Attorney’s Association, said the criminal justice system is only able to serve the public when all aspects of the system are properly funded.

“If the system is not properly funded, victims, defendants and the public in general suffer,” Trimble said.

The recommendations adopted by the roundtable were forwarded by a subcommittee comprised of co-chairs Hon. Martin E. Johnstone, Supreme Court of Kentucky (Retired), and Professor William H. Fortune, University of Kentucky College of Law; as well as Monahan, Professor Leslie W. Abramson, Brandeis School of Law at the University of Louisville; Mike Bowling, Former Chair, House Judiciary Committee; Hon. J. Michael Brown, Secretary of the Justice Cabinet; Christopher T. Cohron, Commonwealth’s Attorney (8th Judicial Circuit); Jerry J. Cox, Attorney, Mt. Vernon; Daniel T. Goyette, Louisville Metro Public Defender and President of the Kentucky Association of Criminal Defense Lawyers; and Rob Jones, Executive Director, Finance and Administration Cabinet Office of Policy & Audit.

Other roundtable members include Hon. Sara W. Combs, Chief Judge, Kentucky Court of Appeals; Trimble; Janet M. Graham, Deputy Assistant Attorney General; R. David Stengel, Commonwealth Attorney (30th Judicial Circuit); J. Michael Foster, Christian County Attorney (3rd Judicial Circuit); Pierce Whites, General Counsel to the House Speaker; Harland Hatter, General Counsel to the Senate President; Ian Sonego, Commonwealth Attorney (8th Judicial Circuit); William E. Johnson, Attorney, Frankfort; W. Robert Lotz, Attorney, Covington; David A. Lambertus, Attorney, Louisville; Professor Mark Stavsky, NKU Chase College of Law; Bruce K. Davis, KBA President-Elect; Margaret E. Keane, KBA Vice-President; Robert C. Ewald, KBA Past President

KBA Criminal Justice Roundtable Findings and Recommendations

2009 Criminal Justice Roundtable KBA Press Release

DPA Commission Letter to Governor December 18, 2009

The Constitution Project’s bipartisan National Right to Counsel Committee’s letter to Governor Beshear

Kentucky faces an opportunity. Cal Thomas has captured it best in his column several years ago entitled, "Three Strikes and You're Broke" where he emphasized we have to be smart on crime by providing alternatives to prison to avoid ineffective, costly imprisonment of nonviolent offenders.

Professor Lawson is correct that the drug laws are an unqualified mess. They beg for commonsense reform. His proposed practical reforms would do what Cal Thomas calls for - public policy that is smart on crime.

Kentucky has a choice to make. Does Kentucky want to make the changes that will actually be smarter, actually work and save taxpayers money? If it does, Kentucky Drug Laws, KRS Chapter 218A, should be rewritten to address the medical dimensions of drug cases and the practical reality that prison is not the most cost effective alternative.

DPA has a social worker program that is providing judges with cost effective alternatives to incarceration. It provides real cost savings to Kentuckians by reducing incarceration costs and reducing recidivism. It is a smart investment for the state. See the Kent School's independent evaluation of this DPA program at: http://dpa.ky.gov/ci/sw.htm I hope it is expanded.

People want policy makers to make sure costs do not outweigh benefits. The cost of incarcerating so many in Kentucky who are nonviolent when an alternative sentence is available makes no sense. We can do better. People want us to do better. See the clear polling data at: http://www.ncsconline.org/D_RESEARCH/Documents/NCSC_SentencingSurvey_Report_Final060720.pdf  We must do better.

To provide each client with high quality services through an effective delivery system, which ensures a defender staff dedicated to the interests of their clients and the improvement of the criminal justice system.

The Department of Public Advocacy is an independent agency attached for administrative purposes to the Justice and Public Safety Cabinet headed by J. Michael Brown, Secretary. DPA is the statewide public agency providing public defender service in all of Kentucky's 120 counties as will as Kentucky's appellate courts.

A half century ago the Kentucky Supreme Court held that "common justice demands" that an attorney must be appointed when a person charged with a felony is too poor to hire his own counsel. Gholson v. Commonwealth, 212 S.W.2d 537 (Ky. 1948). In the 1960s Kentucky attorneys began to request compensation when they were forced to represent indigents charged with a crime. In 1963, the United States Supreme Court determined that if a state wants to take away a person's liberty, it has to provide an attorney to those persons too poor to hire their own in order to comply with the Federal Constitution. Gideon v. Wainwright, 372 U.S. 335 (1963). While consistently unsuccessful in convincing Kentucky's highest Court that the judiciary could and should order payment, Kentucky's appointed attorneys did persuade the Kentucky Supreme Court to the point that the Court began to directly encourage the General Assembly to provide a systematic solution for paying the attorneys who were being made to represent the accused

On September 22, 1972, Kentucky's highest Court characterized the forced representation of indigents as an "intolerable condition" and held it was an unconstitutional taking of an attorney's property - his service to the client - without compensation. From then on no Kentucky attorney could be required to represent an indigent absent compensation. Bradshaw v. Ball, 487 S.W.2d 294 (Ky. 1972).

While the appeal in Bradshaw was pending, the 1972 Legislature, at the request of Governor Wendell Ford, created the Office of Public Defender, now the Department of Public Advocacy (DPA), and gave it the responsibility to represent all persons in Kentucky charged with or convicted of a crime. House Bill 461 sponsored by Representatives Kenton, Graves and Swinford passed the House 60-18 on March 7, 1972 and the Senate 26-5 on March 14, 1972. It allocated $1,287,000 for FY 73 and FY 74.