Bench & Bar

JAN 2013

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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KENTUCKY BAR NEWS Inaugural Criminal Justice Forum – held at NKU Chase College of Law1 By Mark Stavsky n Nov. 9, 2012, University of Kentucky Law Professor Robert Lawson,2 noted expert on criminal justice, was the keynote speaker at the inaugural session of the Annual Forum on Criminal Law Reform in Kentucky. This session was sponsored by the Criminal Justice Section of the Kentucky Bar Association and NKU Chase College of Law. These forums are planned as yearly events, the location to alternate among the state's three law schools.3 Following Professor Lawson's presentation, there was a panel discussion by six criminal justice experts including Representative John Tilley, chair, House Judiciary Committee; Senator John Schickel, Senate Judiciary Committee; Amanda Spears, Kentucky Parole Board; W. Robert Lotz, Covington criminal defense lawyer; past-president Kentucky Association of Criminal Defense Lawyers; Tom Wine, Jefferson County Commonwealth's attorney-elect, and Professor Mark Stavsky, NKU Chase College of Law. The discussion was moderated by Professor Allison Connelly, University of Kentucky College of Law. Professor Lawson's keynote address, entitled Kentucky Criminal Justice: Past Present Future, set out a critique of the current state of the criminal justice system in Kentucky, its causes, and suggestions for reform. He then discussed the recently–enacted HB 463, which addressed some of the issues raised by Professor Lawson and the extent to which the legislation as well as its implementation ameliorated some of his concerns.4 Although Prof. Lawson's presentation lasted only approximately an hour, he managed to systematically set out the causes and consequences of the significant rise in the inmate population in the Unites States, generally, and Kentucky, specifically. Surveying the last 40 years, he referred to the disproportionate rise Kentucky's inmate population from approximately 3,000 in 1970 to approximately 22,000 in 2012, despite the decrease in crime rate. He attributes O 34 Bench & Bar January 2013 much of this sevenfold increase to a change in penal philosophy over the last four decades from rehabilitation to retribution. This led to, among other changes, longer prison terms, changes in the PFO statute, other penalty enhancements, creation of new serious crimes (such as flagrant non-support), and less availability of parole. The consequences of these changes led to a significant increase in the cost of incarceration (Kentucky went from having two prisons to 16; in addition, county jails began to house prison inmates), degradation of conditions of confinement, decrease in criminal trials and increased challenges faced by offenders upon reentry, and reentry after release has become more of a challenge. With respect to House Bill 463, Professor Lawson views this recentlyenacted legislation as a positive development. Indeed, he has referred to its enactment as "maybe the first time in almost four decades [the legislature] enacted laws that softened (rather than hardened) the treatment of persons prosecuted for crimes committed in our state."5 That said, Professor Lawson views the legislation as a small step in reforming major issues he has with Kentucky's criminal justice system. A number of changes that he has urged have still to be addressed. Furthermore, while recognizing the "widespread public fear" is a major barrier to meaningful reform, he fully supports the Task Force created by the legislators in their call for a comprehensive review of the Penal Code, as well as a major study of all aspects of criminal sentencing. The panel discussion following Professor Lawson's presentation was both informative and frank. Much of it centered on the implementation of HB 463. Although there was consensus that the bill constituted a positive step, there was significant concern that a number of the goals of the legislation had not yet been reached; there were differing opinions expressed regarding the feasibility of reaching some of these goals. Furthermore, there was a lively discussion among the panel and the audience regarding what, if any, additional legislation was UK Professor Robert G. Lawson presented on Kentucky Criminal Justice 2012: Past, Present, Future at the KBA Criminal Law Section's Nov. 9, 2012, inaugural annual forum on Criminal Law Reform in the Commonwealth of Kentucky. The program was hosted and cosponsored by the Salmon P. Chase College of Law of the Northern Kentucky University. needed to address other perceived problems in the criminal justice area. Some panelists took issue with aspects of Professor Lawson's views; in particular, Senator Schickel, former Boone County jailor, disagreed with Professor Lawson's criticism of the conditions of confinement for those inmates serving out their sentence in county jails. In addition, Sen. Schickel expressed support for proposed legislation expanding post-conviction DNA testing beyond death penalty cases. He expressed concern that DNA could be used to prove guilt, but not innocence. Only Kentucky and Alabama limit DNA in post-conviction proceeding. None of the other panelists – nor members of the audience – took issue with Sen. Schickel's views on DNA testing. The forum was successful in raising critical issues regarding criminal justice in Kentucky, generally and House Bill 463. ENDNOTES 1. Professor Mark Stavsky, NKU Chase College of Law. 2. Professor Lawson has spoken and written extensively on significant criminal justice matters in the Commonwealth over the last decade, see, e.g., Robert G. Lawson, Presenter, Kentucky Criminal Justice 2012: In Decline or On the Mend? 2012 Annual Convention, Kentucky Bar Association (June 8,

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