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TRUTH IN SENTENCING:
REAL CHANGES FROM THE CRIME BILL
The legislative session that recently completed its work made significant changes in the law for the criminal defense practitioner. Many of these changes are in the Crime Bill, House Bill 455, including some of the most significant changes made in KRS 532.055, also known as Truth in Sentencing since its passage. All trial attorneys should study the changes closely, and be aware of the enormous impact the changes will have on the defense practice.
The first change that will impact defendants is the addition of a section in the law allowing victim impact information to be presented to the sentencing jury. Note the use of the phrase "may offer" at the beginning of this section. Specifically, the law provides for the jurors to hear "The impact of the crime upon the victim, as defined in KRS 421.500, including a description of the nature and extent of any physical, psychological, or financial harm suffered by the victim…."
The defense attorney must develop a pretrial motion practice to set the limits for this part of the trial. The definitions in KRS 421.500 indicate specific persons who can be a victim or stand in for a victim. Not everybody can testify. The court must first find the offered witnesses meet the statutory definitions.
Clients must be advised that the jurors that find them guilty will hear victim information. The jurors setting the sentence will now hear information that was previously seen only by the Judge, often after the sentence was determined. The defense attorney in advising the client cannot underestimate the potential impact of this change.
The most positive change for the defendant reads: "The defendant may introduce evidence in mitigation or in support of leniency." The old statutory language about negating the prosecution's evidence and limiting defense proof of no significant criminal history is gone. With the language change, the defense attorney must now look to the client as the foundation of proof for the penalty phase.
What is it about this person that calls for leniency in sentencing? Is it job history, jail history (similar to Skipper v. South Carolina, 476 U.S. 1 (1986) evidence in capital cases), family issues, health issues, victim of domestic violence, good deeds, lesser culpability, sorrow, potential for rehabilitation? The list goes on. A list limited only by our ability to show that which makes this person qualify for leniency.
Leniency is a word with great possibilities. I found it defined in Webster’s II New Revised University Dictionary as the act of being lenient, not harsh, merciful.
There could not have been a richer field to plant in then was laid out in this statute. It is up to the defense attorney to take the next steps to yield a bumper crop of fairer, more reasoned sentences that take into account not only the criminal behavior but also the nature and characterization of the person.
Finally, the Legislature amended section three by combining the non-capital phase with the Penalty phase of capital trials under 532.080. This change in conjunction with the new life without parole provision will alter death penalty litigation in significant ways. However, for the purposes of this article I have only noted the change.
What should the defense practitioner do with these changes? I suggest a vigorous pre-trial motion practice for dealing with the victim impact evidence. A client centered penalty phase, which maximizes the potential for mitigation and leniency is the next step. Preparing death penalty cases with the changes in the penalty phase in mind rounds out the steps the defense practitioner must take.
For the last decade, we on the defense side have not prepared penalty cases for all felony trials. A statute that left little room to focus on our client and his situation stopped us from presenting full and fair information relevant to sentencing. We must change our approach. Let us begin with the people most affected by the outcome of the sentencing part of any trial, our clients.
HB 455, Section 111: KRS 532.055 is amended to read as follows:
. . . . .
(a) Evidence may be offered by the Commonwealth
relevant to sentencing including:
. . . . .
7. The impact of the crime upon the victim, as defined in KRS 421.500, including a description of the nature and extent of any physical, psychological, or financial harm suffered by the victim;
(b) The defendant may introduce evidence in mitigation
or in support of leniency[. For purposes of
this section, mitigating evidence means evidence that the accused has no
significant history of criminal activity which may qualify him for leniency.
This section shall not preclude the introduction of evidence which negates
any evidence introduced by the Commonwealth]; and
. . . . .
(3) All hearings held pursuant to this section shall
be combined with any hearing provided for by KRS 532.080. [ This
section shall not apply to sentencing hearings provided for in KRS 532.025.]
. . . . .
Roger Gibbs, Assistant Public Advocate
Directing Attorney
408 N. Main Street, Suite 5
London, Kentucky 40741
Tel: (606) 878-8042
Fax: (606) 864-9526
E-mail: rgibbs@mail.pa.state.ky.us
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THE 1997 ABA CALL FOR A MORATORIUM ON EXECUTIONS IS BASED IN PART ON THE FACT THAT THE STATES INCLUDING KENTUCKY CONTINUE TO SENTENCE CHILDREN TO DEATH. In the 1988 report of the Criminal Justice Section of the ABA, it was stated that “The spectacle of our society seeking legal vengeance through execution of a child should not be countenanced by the ABA.”
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