Louisville Law Examiner Serving the University of Louisville School of Law Community
Volume 10, Number 3 Louisville, Kentucky, December, 1984 Circulation 5400
Legislature will decide criteria
Heart Transplant Successes
Magnify Brain Death Issues
By Peggy Weiner
When is a person 'dead enough' to
have their heart removed and
transplanted into the body of someone
else?
The success of heart transplant
operations in Louisville and nationwide
has increased the need for heart donors.
In the late 1960's, when heart transplant
techniques were still in the formative
stages, it was recognized that w'ithout
statutory provisions relating to organ
donations, few hearts would be available
for transplants because of the short
preservation period outside the body -
three to four hours - and the fact that
the heart donor must be "dead" in order
to have his heart removed.
To meet the concerns which arose and
to deal with the procurement of organs
for transplant and research, Kentucky
and other states enacted the Uniform
Anatomical Gift Act (KRS 311.165 et
seq.) The Act spells out the procedures
for executing an anatomical gift and the
order of priority for those who can
authorize the gift on behalf of the
decedent.
Even though the statute addresses the
disposition of organs after death, it does
not specifically define when death
occurs. This determination of the point
at which the patient is "dead" is now at
the center of a controversy which
promises to be at issue in the next session
of the General Assembly.
Thirty-eight states, but not Kentucky,
have statutorily enacted "brain death"
criteria, defining circumstances under
which a patient can be declared legally
dead for the purposes of having organs
removed, though the patient may still be
breathing with the help of a ventilator.
The 1984 General Assembly
considered, but did not pass, legislation
which would have established brain
death standards and specified the point
at which the anatomical gift laws would
come into play.
The success of organ transplants and
the call for donors means the
controversy over defining when death
occurs will continue.
• "Most hospitals and doctors feel they
are on sound legal ground when using
brain death criteria for purposes of
organ donation," said Ken Watson, a
coordinator of the University of
Louisville's organ procurement agency.
However, the establishment of "brain
death" criteria to define death is op-
Dr. Laman A. Gray, Jr., right, and Dr. W. Robin Howe, left, implanted the
donor heart in Alice Brandenburg, Kentucky's first heart transplant patient. The
surgery was performed at Jewish Hospital. (The photo on the cover was taken
during the same operation.)
posed in Kentucky by the Right to Life
organization. The opponents argue that
a person should not be considered
"dead" until they are organically dead,
that is, the body's living cells have
disintegrated, both individually and
collectively.
Thus, the controversy in the next
legislative session, as it was in 1984,
promises to be between those who
believe death occurs when there is an
"irreversible cessation of brain
function" and those who think there
must be "destruction of the organism."
The opponents of the brain death
standards maintain that "cessation of
function" should not be equated with
death because it is incorrect to presume
that "cessation" is irreversible. Watson
(continued on page 5)
Combined Effort of Police and Social Workers
Aimed at Preventing Sexual Abuse of Children
By Neil Ward
The Louisville and Jefferson County
Exploited and Missing Child Unit
(EMCU) has just completed its fourth
year of operation and its success has
prompted many officials to call the unit
the finest of its kind in the United States.
The local EMCU was the first
program to utilize a police and social
worker team concept to prevent the
sexual abuse of children.
There are five investigative teams at
the EMCU 's Louisville office. Each
team is composed of a police officer and
a social worker who work together to
convict sex offenders . The police
officer's primary concern is the
investigation and the social worker's
primary concern is the protection of the
child victim and his or her family.
"When dealing with sex offenses
against children, the weak link has
always been the failure to combine the
two disciplines (law enforcement and
social work) in order to build a solid case
against sex offenders," said Leo Hobbs,
a social worker supervisor at EMCU.
The approach has been so successful
that John Rabun, the original director
of EMCU, was offered the position of
Deputy Director of the National Center
for Missing and Exploited Children in
Washington, D.C., when it was
organized last May.
Rabun's background was in social
work and when he left, Lt. Marvin
Wilwn of the Louisville Police
Department became the operations
manager at EMCU.
"It may seem strange to have social
workers reporting to a police officer, but
it's that interrelationship that has made
the unit work," Hobbs said.
"My philosophy differs from my
police partner," Hobbs said. "But it's
those differences that provide the best
environment for the child victim and his
family,and at the same time result in
expert investigative work ."
EMCU has a 95 percent conviction
rate and the majority of cases are settled
at or before the jury selection process.
EMCU deals with offenses that
involve multiple victims and in which the
offender is a person outside the family.
Due to their limited manpower and time,
EMCU can't investigate a single rape or
an incest case, but instead leave such
investigations to the regular sex offense
unit in the police department or the
county's child protective services.
A majority of the unit 's cases involve
offenders who are pedophiles.
Pedophiles are adults who satisfy all of
their emotional needs through sexual
relationships with young children,
usually of pre-pubescent age. Pedophiles
typically feel inferior and have trouble
relating to adults. By developing a
relationship with young children, the
pedophile finds the power and authority
that he is seeking.
"The pedophile's victims are usually
children in grade school through middle
school and he tries to find children that
are lonely or ignored," Hobbs said.
Children are naturally attracted to
adults and the pedophile tries to win
their confidence and love by giving them
attention. Pedophiles can be very patient
and sometimes they may take more than
a year to develop a rapport with a child
that results in sexual relations .
In their four years of existence,
EMCU has received over 3,000 leads.
The leads come from missing persons
reports, law enforcement agencies,
social services, schools and other
confidential sources.
When EMCU receives a report of
suspected sexual abuse, the investigators
try to identify all young children that
come into contact with the suspect.
"Pedophiles often develop a
preference for a certain age child and
once we find a victim, then we develop a
profile and try to identify other children
in the neighborhood that fit that
description," Hobbs said. "A pedophile
is usually cultivating relationships with
other children while he is carrying on a
sexual relationship with the present
victim."
(continued on page 7)
ANN GOTLIB
Missing Since June I, /983
Louisville, Kentucky
Call toll~free 1-800-843-5678
or Write: P.O. Box 1467
J.ouisville, K Y 40101
2 Louisville Law Examiner, December, 1984
Louisville Law Examiner
EDITORIAL BOARD
John Schaaf
Editor-in-Chief
Neil Ward
Rebecca Ward
Photography Editors
Jon Hardy
Mike Schafer
Joel Zakem
Associate Editors
STAFF
Crystal Collins
Managing Editor
Tim Cocanougher
Brandeis Brief Editor
Winnie McConnell
Night Associate Editor
Ron Brumleve
Kevin A. Francke
Benjamin Johnson
Tom Lukins
Doug Neagli
Tom Ransdell
David M. Taylor
Sheila Wachsman
Peggy Weiner
David E. Williams
Professor LAURENCE W. KNOWLES, Consultant
The Louisville Law Examiner is published six times during the academic
year in the interest of the University of Louisville School of Law community.
Articles are invited from faculty members, students, and members of the bar
who wish to do freelance work. Any proposed article should be cleared with
the Editor as to topic and length.
Address all communications to The Louisville Law Examiner, School of
Law, University of Louisville, Louisville, Kentucky 40292.
Phone: 502-588-6398.
Students' Legal Writing Skills
Sharpened by English Teachers
By Tim Cocanougher
Two new additions to the Law
School's teaching staff should give this
year's freshmen an excellent start on the
development of their legal writing skills.
Georgia Rhoades and Mikie Russell,
Ph.D. candidates from U of L's English
Department, have been hired by the Law
School as part of a pilot program
initiated by Dean Barbara Lewis and
Professor James Ragan. The program is
designed to reduce the student/teacher
ratio in the legal writing class and give
students the opportunity for more
individual attention.
''This is part of a very new trerid
toward recognizing that people with
backgrounds in English can help teach
some needed skills in law schools,''
Russell said.
With 18(} students entering the Law
School each year, Lewis and Ragan
decided it was necessary to make
changes in the legal writing curriculum
to assure that students were getting a
solid background in writing at the begin­ning
of their legal education. The hiring
of Russell and Rhoades provides more
individualized instruction for the first­year
students who, in one semester, must
complete six written assignments which
are evaluated and critiqued by the
writing instructors.
"This arrangement allows the
students to have more one-on-one
contact with their instructor," Russell
said. "It benefits the students when
they're able to sit down with someone
and get some help putting their thoughts
into writing."
The new instructors said the writing
problems experienced by law students
are similar to those seen in other
disciplines, with many students initially
having difficulty presenting issues and
following up with clear, logical
arguments.
"There's a reluctance on the part of
many students to 'de-mystify' the legal
language and state problems in simple
language," Rhoades said. "I think
we've helped them bring some
organization and coherence to their
writing.''
Law students also have occasional
problems maintaining objectivity in
their writing, according to Rhoades.
"They want to be advocates, but it's
important to know when to use that sort
of language and when to use a more
objective tone."
Ragan said Rhoades, who has been
teaching college-level English since 1973,
and Russell, who has been in the
advertising business in Frankfort and
Louisville, both have excellent writing
abilities and have had a positive impact
on the legal writing program .
"Having them here has encouraged
the students to seek extra help with their
writing,'' Ragan said. "Our goal is to
maintain this sort of interdiscip!inary
program so the Law School can continue
to take advantage of the opportunity to
use Ph .D. candidates from the English
Department to help in the writing
classes."
'Real World' Internships
Let Students Practice Law
By Mike Schafer
One of the drawbacks many students
see to law school is the fact they do not
obtain a practical working knowledge of
what it is like to practice law. One alter­native
is to obtain a clerking position at
a local law firm. Another is the Universi­ty
of Louisville's legal internship pro­gram.
Any student who has completed sixty
credit hours has an opportunity to par­ticipate
in the program supervised by
Professor Ed Render. Students may
choose from five programs, most of
which will actually allow the student to
try a case. The internships are operated
in conjunction with the
Commonwealth's Attorney's Office, the
Jefferson County Attorney's Office,
(Juvenile Division), Legal Aid, the Cir­cuit
Court Judges, and the Kentucky
Court of Appeals.
Students who are presently par­ticipating
in the various internships
agree that it has been a very worthwhile
experience. Each internship gives
students a different, but practical look
at the practice of law.
Mike Lawrence, who is interning with
the Commonwealth's Attorney, said,
"It has been a very worthwhile ex­perience
as far as researching and wat­ching
trials, but a little bit frustrating on
~gelling actulil experience. So many times
your case gets passed or pled."
Scott Cox has similar feelings, but
feels these are problems lawyers deal
with on a daily basis and to which they
should adjust.
''The program is worthwhile because
you can work on a case from start to
finish and learn your way around the
courtroom procedurally,'' Cox said.
The internship with the County At­torney's
Office does not offer the
benefit of working on a case from start
to finish, but does give the intern
numerous opportunities to appear in
front of a judge.
" The program has really helped with
my confidence in front of a judge,'' said
Alan Miller. "Although the program is
not that formalized, once you Jearn the
ropes and take charge, the internship is
invaluable."
Sheryl Smith said her internship with
Legal Aid has been "the next step past
clerking - in this program you actually
represent a client, taking the case from
the initial client interview all the way
through the trial. It has been extremely
good from a procedural standpoint."
The judicial internship offers students
something totally different from the
other three. In this program, you actual­ly
work with a circuit court judge and
your experience depends on the judge to
whom the intern is assigned. David Fer­nandez
is working with Judge Richard
Revell and has mainly observed in court.
"It's been great,'' Fernandez said.
"I'll now be a lot more comfortable
before a court because I realize perfec­tion
isn't expected from the attorney."
Judge Jack Mudd's intern, Paul
Porter, highly recommends the program.
"tsee how ~er}1hing in the trial fits
together, plus since I'm sitting next to
the judge I can hear what the attorney
says when he's called before the bench."
As can be seen, the internship pro­gram
complements the casebook study
of law and offers students an opportuni­ty
to learn how to practice law while still
in school.
CURRENT PUBLICATIONS
SCHOOL OF LAW
UNIVERSITY OF LOUISVILLE
Leibson and Nowka, The Uniform Commercial Code of
Kentucky, The Michie Co..................... .......................... $ 75.00
Merritt, Kentucky Practice (Probate Practice, Vols. I and 2)
West Publishing Co................. .......... .... .... .... .. .. .... . .. ... . $125.00
Petrilli, Kentucky Family Law, W .H. Anderson Co..... ... ........... . $ 50.00
Eades, Wrongful Death: The Law in Kentucky,
Harrison Publishing Co.... . .. ...... ................. . ........ .. . .. ... .. $ 22.00
Knowles and Eades, Law for .Asphalt Athletes: A Legal Guide For
Hikers, Runners, and Bicyclists.... .. .. .. ....... .. ... .. ....... .. .... .. . $ 3.25
Eades, Products Liability: The Law in Kentucky,
Harrison Publishing Co.. .. .. .............. ... ........ .................. $ 22.50
Journal of Family Law, (four issues per year)........ . .... .. .. ....... ... . $ 15.00
Journal of Law & Education, edited by Knowles & Wedlock ,
(four issues per year) .. ..... . .. .... ...... .... ..... ............. .. . .. .... .. $ 33.50
All publications may be obtained through the
OFFICE OF CONTINUING LEGAL EDUCATION
SCHOOL OF LAW
UNIVERSITY OF LOUISVILLE
Louisville, Kentucky 40292
Louisville Law Examiner, December, 1984 3
NIGHT and DAY
Change Is Narrowly Adopted
Faculty Approves Flexible Scheduling Policy
By Winnie McConnell
Beginning next semester, evening and
day students at the University of
Louisville will be able to enroll each
semester in one course in the other
division without giving a reason, thanks
to a policy change approved recently by
the Law School faculty.
According to the revised policy,
evening or day students may take a
course in the other division if (1) there is
a class conflict, or (2) the course in the
other division is not currently offered in
the division in which the student is
enrolled, plus one additional course in
the other division for no reason at all.
The allowance of this additional course
will apply only to second-, third- and
fourth-year law students.
This change was proposed by
Professor Marlin Volz after a brief
discussion among the faculty members
and student representatives, during
which time several revisions of the
current policy were suggested.
The existing policy had allowed a law
student to take a course in the other
division only if he or she had a course
conflict or the course wasn't offered in
the division in which the student was
enrolled.
Dean Barbara B. Lewis's proposal
·would have provided that full -time
students must enroll in more than one­half
of their hours in the day division
and part-time students must enroll in
more than one-half of their hours in the
evening division. The remaining course
could be taken in the other division if the
students decided to initiate this new
option.
"Its appropriate to allow flexibility in
·the courses of day and evening students
and it's necessary that we be responsive
to the students' needs," Lewis said.
Lewis decided to propose a change in
the previous policy to allow maximum
flexibility to students in arranging their
class schedule. The move was made part­ly
in response to a complaint voiced by
Sheryl Kramer Smith, a third-year law
student in the day division. Smith had
stressed the need for day students with
legitimate personal conflicts to be allow­ed
to opt for a night class when offered.
She said her child-care needs took
precedence over class schedules which
precluded her and other law students
similarly situated from taking specific
bar courses offered only at 8 a.m.
At the faculty meeting, Smith urged
the law professors to change the existing
policy.
"If you leave us with some flexibility,
this will decrease the pressure and allow
students to take more bar courses in
order to help us pass the bar exam," she
said. "We need more flexibility and
must have an opportunity to take more
bar courses for legitimate academic
reasons."
Lee Gentry, President of the Student
Bar Association, also requested that the
faculty approve a policy which would
"allow a great deal of flexibility and
help us prepare properly for each class."
There was a general agreement among
the faculty that students should be given
more flexibility in their class schedules
to eliminate personal conflicts, but there
was a diversity of opinions as to how this
should be achieved.
Professor Larry Knowles said he
believed a policy shouldn't be adopted
which would encourage day division
students to transfer into the night
division. He said another solution "such
as offering bar courses in alternate time
slots during the day" would be more
appropriate for day students.
Professor David Leibson agreed with
Knowles that nothing should be done in
the policy which would allow students to
adjust their schedules to the point where
they would be spending less time in law
school. "I belive that Mrs. Smith's case
is a good exception and I am in favor of
flexibility to change class schedules for
legitimate reasons," he said.
Professor Robert Stenger stressed the
need for adoption of a policy to help
students with their problems.
"Although anything might be abused,
it appears the most justifiable problems
victimize the best law students," he said.
"We owe it to these students to adopt a
policy to help them."
The revised policy which now allows
students to each semester take one
additional course in the other division
for no reason, was narrowly approved
by the faculty- 13 voted in favor of the
revision, 12 voted against it and one
abstained.
Law School Teams Dominate U of L lntramurals
By Joel D. Zakem
Law students are not generally known
for their athletic achievements, but this
year the U of L Law School may be
changing that image.
By the middle of November, law
students had won five U of L intramural
championships. Two other Law School
teams had finished second in their
events.
Team titles were won in women's
softball ("The Ballbusters"), 'A' league
co-recreational volleyball ("Forever
Useless"), and men's soccer ("The
Hung Jury"). Law students also
captured two racquetball championships
as second year students Nancy Morgan
and Terry Yenson won the mixed
doubles tournament and night student
Linda Ross finished on top in the
advanced division of the women's
competition.
Second place finishes were recorded in
men's three-on-three basketball ("The
Blues Brothers"), and 'B' league co­recreational
volleyball (''Mr .
Potatohead ").
Law School participation in the team
events was sponsored by the Student Bar
Association. Second year representative
Tom Herold was named Law School
Athletic Director, and coordinated the
participation.
"This year, more law students than
ever participated in intramurals," said
Herold. He estimated that between 60
and 70 people signed up for the various
events. This number allowed the Law
School to field three men's softball
teams, one women's softball team, four
co-ed volleyball teams, one men's soccer
team, two men's basketball teams, and
one men's three-on-three basketball
squad. Law students have also par­ticipated
in individual events, such as
tennis and racquetball.
While the Law School had entered
scattered teams in tht: past, Herold said
that this is the first year in anybody's
memory that an organized effort has
been made to compete.
In softball, The Ballbusters went
through their season undefeated. They
finished 5-0, which included several
come-from-behind victories. Team
members included Vicki Carmichael,
Ruth Coleman, Peggy Heeg, Jennifer
Photo by Rebecca Ward
The Law School's women's softball team swept through their season undefeated
and captured the U of L Intramural Championship.
Hinkebein, Dana Marks, Kathy McCoy,
Judy McDonald, Jennifer Miller, Nancy
Morgan, Bunny Roy, Jennifer Stanfield,
Kathy Thompson, Peggy Timme!,
Christy Watson, Claudette Weaver, and
Peggy Weiner.
After losing the first game of their
first match, Forever Useless came back
to win the match and continued on to
finish the volleyball season without
dropping another game. Forever Useless
consisted of Tom Herold, Kevin Kinney,
Mike Krauser, Corky Malcom, Judy
McDonald, Linda Ross, Kenton Smith,
and Peggy Timme!.
In soccer, The Hung Jury lost one
regular season game, but came back to
capture the season-ending tournament.
During the tournament, no team scored
against them. Members of The Hung
Jury were Howard Barr, Tom Herold,
Zach Kafoglis, Nick Kapur, Ken
Kinderman, Mike Krauser, Mike
Lawrence, Tim Lavender, Corky
Malcom, David McMillen (a med
student who had the good taste to play
on the Law School team), Ward
Richards, Louis Waterman, and Terry
Yenson.
No faculty member has yet
complained to Dean Barbara Lewis that
intramurals take up too much of the
students' time.
"There is more concern about the
amount of students' outside
employment," Lewis said.
"I doubt that students are spending so
much time on any intramural sport that
their studies are affected."
4 Louisville Law Examiner, December, 1984
Brandeis Brief
Kentucky's Persistent Felony Offender Statute:
The Kentucky General Assembly's
Program Review and Investigations
Committee recently agreed to investigate
the effect of the state's Persistent Felony
Offender statute on prison
overcrowding. The committee's action
came in response to a recommendation
from the Governor's Task Force on
Prison Options, a group which was
formed to study Kentucky's current and
future prison population and conditions
and make recommendations to
accommodate those needs. Among the
options discussed was the modification
of the Persistent Felony Offender
statute, KRS 532.080.
Task Force testimony· and prior
legislative research has indicated a
concern that perhaps the statute is being
applied inappropriately in some areas of
the Commonwealth. Specifically:
I) the number of persons convicted
under the PFO statute has increased
from 79 in 1980 to I, 187 by July, 1984;
2) 46% of those incarcerated as of
July, 1984, under the PFO statute were
property or drug offenders;
3) approximately 63% of such
property offenders had no prior violent
offense;
4;- approximately 48% of those
convicted under the PFO statute are
from Louisville comp·ared to 29% in the
general prison population from
Louisville;
5) approximately 42% of those
convicted under the PFO statute are
black compared to 29% in the general
prison population;
6) at a rate of increase similar to past
experience, there will be approximately
2, 734 PFO's incarcerated by 1990 (1,258
of which are non-violent) at an annual
operational cost of approximately
$19,958,200, not including construction
costs necessary for the additional 1,547
inmates which would be approximately
$54,145,000, based on $35,000 per bed.
While the Task Force said this data
wds "indicative," it said it was
incomplete and a more detailed analysis
by the Program Review Committee was
needed. The committee will undertake
that analysis and report its findings to
the General Assembly next year as
legislators are preparing for the 1986
session.
Since the PFO statute will be much­discussed
in the coming months, the
Law Examiner asked two Kentuckians
who are very familiar with the operation
of the law to comment on the issue.
***
David L. Armstrong is the Attorney
General of Kentucky. He is a 1969
graduate of the University of Louisville
School of Law who was elected to the
slate's top law enforcement post in 1983
after serving as Common wealth's
Attorney for Jefferson County.
J. Vincent Aprile II is the Assistant
Public Advocate, General
Counsel/Training Consultant for the
state's Department of Public Advocacy.
He is a 1968 graduate of the University
of Louisville School of Law who has
been with the Public Advocate's office
mce 1973.
***
By David L. Armstrong
In recent months, prison
overcrowding has become a major topic
of discussion throughout the
Commonwealth. This problem is real,
and not one to be taken lightly. We find
ourselves in the unusual and
uncomfortable position of facing, on the
one hand, a federal court order
demanding that the prison population be
decreased and, on the other, facing the
reality that we have no place to house
those convicted of crimes. As a member
of the Governor's Task Force on Prison
Options, I have reviewed carefully the
issues surrounding this critical problem.
Many of the recommendations to
come from this task force are viable
ones, combining both short-term and
long-term approaches . Indeed,
Governor Collins has indicated that she
sees gre«· promise for most of the
informat on and recommendations
provided to her. One solution that has
'Important Tool
in Crime Reduction'
been repeatedly suggested as a method
for reduction of prisoners from our
prisons is not only ineffective, but, I
believe, poses a great threat to Kentucky
citizens. That proposal would alter the
Persistent Felony Offender statute, a
statute which I, as many criminal justice
professionals, view as an important tool
in crime reduction in our country and
our Commonwealth.
Persistent felony offenders are
criminals with previous felony
convictions. They have been found
unresponsive to rehabilitation and,
therefore, are subject to longer sentences
and later parole eligibility. This harsher
treatment imposed upon convicted
offenders who repeatedly victimize
Kentuckians was instituted in 1975 as a
response to a national and state increase
in the crime rate.
As one will understand upon reading
the PFO law in Kentucky (KRS
532.080), a persistent felony offender
conviction does not come easily in this
state. Before a conviction can occur, all
of the following must take place:
(1) The crime must be reported.
(2) The criminal defendant must be
apprehended. (National data shows
fewer than 20 percent of major crimes
result in arrest).
(3) The prosecutor must exercise
discretion to charge the defendant as a
PFO and the grand jury must exercise its
discretion to indict.
(4) The defendant must be over 21
years of age.
(5) Subsequent to becoming age 18,
the defendant must have at least one
(PFO II) or two (PFO I) previous felony
convictions for which he received
sentences of one year or more.
(6) Within five years of the date the
present felony was committed, the
defendant must meet at least one of the
following criteria for any of the previous
felonies:
(a) Completed service of sentence.
(b) Was on probation, parole or other
( form of release.
(c) Was discharged from probation,
parole, or other form of release.
(d) Escaped from custody.
(7) Finally, after a defendant is found
guilty of the present felony in circuit
court, the trial jury is then informed of
the defendant's prior felony conviction
record and must unanimously decide
whether the defendant deserves an
enhanced sentence.
It is very important to note that
multiple convictions, for which
concurrent or uninterrupted consecutive
sentences are imposed, are counted as
only one previous felony . For example,
the thief who commits 50 felonies before
being apprehended will be deemed to
have only one felony conviction. In
other words, offenses must be
committed "progressively" (after
conviction for the previous offense)
before they will be counted as separate
offenses for PFO purposes.
Sentences vary depending upon the
nature of the present offense and the
number of previous felony convictions.
Second degree PFO status requires at
least one previous felony conviction and
permits enhancement of the present
offense to the sentence of the next higher
grade. For a present Class D felony, the
maximum enhanced sentence is five to
ten years. Parole eligibility is the same as
for the first offender, i.e. 20 percent of
the sentence.
First degree PFO status requires at
least two previous felony convictions
and permits enhancement as follows:
Class C or D felonies, sentence range is
10 to 20 years and Class A or B felonies,
sentence range is 20 years to life.
Features of the statute to be noted are
that most property offenses fall into the
Class D category and are subject to less
·enhancement than violent offenses, that
juvenile offenses are not considered, and
that multiple offenses are often deemed
to be a single offense. As one can see,
the Kentucky PFO statute is designed to
take into consideration the nature of the
offense and provides sentences for
property offenders which are typically
lower than for violent offenders.
To those who cry that the PFO law is
too harsh, I would point out that
Kentucky's is extremely gentle when
compared with the habitual criminal
laws of our neighbors. For example, in
Alabama those convicted of three or
more prior felonies and subsequently
convicted of a Class A felony (ranging
from non-capital murder, robbery, rape
and certain types of burglary involving
the use or threat of violence) are
sentenced to life without parole under
the habitual offender statute of that
state. Kentucky already confines the
lowest percentage of convicted adult
offenders of those states which surround
us (Kentucky, 21.4 percent; Tennessee,
47.8 percent; Virginia, 42.4 percent;
Missouri, 29.0 percent, and Indiana 29.9
percent). In addition, based on 1982
statistics, Kentucky paroles prisoners
with the lowest average length of stay of
any state in the cot,~ntry. Our maximum
sentence of a household burglar with
two prior felonies is 20 years, low
compared to other states such as Illinois
where the maximum sentence is life;
Indiana, 40 years; Missouri, 30 years;
Ohio, 25 years, and West Virginia, life.
There are those who maintain that
exemptions should be made for certain
offenders who repeat certain categories
of crime, such as burglary and theft.
However, studies show that career
criminals do not specialize. An habitual
burglar will not likely continue simply
on a theft spree. Instead, studies show
that the burglar is apt to branch out and
commit more serious crimes such as rape
or murder.
In addition, while habitual offenders
are a small part of the prison
population, they commit a large number
of the crimes. A Philadelphia study
showed that chronic offenders
accounted for 23 percent of male
offenders, but they had committed 61
percent of all crimes. While only 53
percent of those with one arrest went on
to a second arrest, 71 percent of those
with three arrests went on to a fourth.
'The Crime Rate
Has Dropped
Significantly'
I believe that the PFO law has been an
effective tool for prosecutors and has
served to protect Kentuckians from not
only property offenders, but from those
who switch to violent offenses as well.
We do know that the crime rate has
dropped significantly. Some say that a
chief reason for the drop has been the
aging of the "baby boom" generation.
But others at least give cursory credit to
changes in the way chronic offenders are
· treated in states across the country.
To lessen the PFO law as a response to
prison overcrowding seems to ask us to
forget why it was implemented in the
first place. We enacted this habitual
offender law to protect the people of
Kentucky, to keep unrehabilitative
criminals off the streets and out of our
homes and businesses. To turn around
at this point and tell Kentuckians that we
have changed our minds, that one more
time, they will have to fend for
themselves, seems calloused and
uncaring. We are placing the citizens of
Kentucky in a strange version of double
jeopardy, where the victim is victimized
twice, once by the criminal and once by
the criminal justice system designed to
protect him or her.
Rather than be unresponsive to the
needs of Kentuckians, it is time to face
the reality that is before us. Rather than
putting career criminals out of jails and
into our communitites, it is time to face
the fact that more prison space is needed
and begin to address that need, not
amend the one effective tool we have in
combating the crime rate.
***
Louisville Law Examiner, December, 1984 5
The State's Attorney General Thinks It's Working,
But a Public Advocate Says Amendments Needed
By J. Vincent Aprile It
Virtually all penal codes in this
country contain special provisions for
the recidivist. Numerous rationales for
enhanced punishment for repeat
offenders have been advanced by
everyone from prosecutors to social
scientists and those philosphical and/or
pragmatic justifications will not be
debated here. Assuming, at least
arguendo, the necessity for some type of
enhancement statute for recidivists, it is
still necessary to examine the results
produced by laws such as Kentucky's
Persistent Felony Offender sentencing
statute.
Studies of the operation of· various
persistent felony offender statutes have
revealed a number of serious
deficiencies. First, the . individuals
actually incarcerated under enhanced
sentences tend not to be the professoinal
or dangerous criminal that the
legislature wanted to remove from
society by these ·laws, but instead are
severely inadequte people whose crimes
are often only petty property offenses.
See Katkin, "Habitual Offender Laws:
A Reconsideration," 21 Buffalo L. Rev.
99 {1971).
Second, because the enhanced
sentences normally bear little or no
relationship to the convicted defendant's
most recent crime - the triggering
offense, grossly disproportionate
sentences are frequently imposed on
persistent felony offenders. See Clinton
v. State, Kan., 502 P.2d 852 {1972),
where a Kansas offender received a
sentence of up to 15 years for the
triggering offense of shoplifting a $69.95
coat; Wilson v. State, Ark., 475 S.W2d
543 {1972), where an Arkansas offender
received a sentence of 24 years for the
crime of forging two checks totaling
$775.46; and Brown v. Parratt, 560 F.2d
303 (8th Cir. 1977), where the triggering
offense of the theft of $17.00 and a
watch produced a 10 year sentence.
Third, penal statutes which mandate
enchanced punishment for recidivists are
frequently invoked by prosecutors who
traditionally have substantial discretion
in the decision to charge a person under
a persistent felon law. As a result, the
threat of charging a defendant under an
enhancement statute often provides the
prosecution with significant leverage to
'Statute . . . Provides
Prosecution With
Leverage'
extract a guilty plea to the current
offense from a recidivist. The repeat
offender's refusal to go to trial on the
current offense if he is prosecuted as a
persistent . felony offender is
understandable when his possible
sentence is increased in some instances
from a maximum of five years to 20
years, or from a maximum of 20 years to
life imprisonment.
Fourth, to the surprise of the
advocates of recidivist statutes, certain
empirical evidence indicates that
habitual offender statutes have actually
diminished the deterrent value of those
laws. For example, the adoption in New
York of very severe recidivist sentencing
laws in the 1970's apparently had the
effect of reducing the likelihood of
imprisonment for the repeat offender
due in part to the court congestion the
tougher laws generated and the
nullifying response of the entire criminal
justice system to these disproportionate
punishments. Ass'n of Bar of City of
N.Y. & Drug Abuse Council, "The
Nation's Toughest Drug_ Law" (1977)._
'Offender Statutes
Have Diminished
Deterrent Value'
These deficiencies in the operation of
recidivist statutes are not catalogued to
demonstrate the need to abolish
enhanced punishment for repeat
offenders, but to demonstrate the
necessity for reforms in persistent felony
offender sentencing. Obviously, more
specific criteria must be employed to
select the recidivist who is dangerous to
society from the repeater who is only a
nuisance to the community. One or
more past felony convictions, standing
alone, without regard to their type or
seriousness, can never be a specific
enough criterion for this purpose.
At present, KRS 532.080, Kentucky's
Persistent Felony Offender sentencing
statute, punishes a repeat offender
regardless of whether his current offense
or his prior convictions are property
crimes or involve violence against
persons. In June, 1983, the United
States Supreme Court held that the
Eighth Amendment to the United States
Constitution "prohibits not only
barbaric punishments, but also
sentences that are disproportionate to
the crime committed." Solem v. Helm.
103 S.Ct. 3001, 3006 {1983). According
to the United States Supreme Court in
Solem, "a criminal sentence must be
proportionate to the crime for which the
defendant has been convicted." I d. at
3009.
In August, 1983, the Commission on
Sentencing and Prison Overcrowding in
Kentucky submitted to the Governor its
report and recommendations.
According to that report, "[t]he records
of persons serving sentences [in
Kentucky] as persistent felony offendrs
[as of July 13, 1983] were examined to
determine the type of offense for which
they were convicted and their
conditional release or parole eligiblity
dates." Commission on Sentencing and
Prison Overcrowding, Report and
Recommendations { 1983), p. 7. "The
purpose of this research was twofold -
first, to determine how many PFO's had
been convicted of property offenses
only, and second, to try to provide some
estimate of how long the current
population of PFO's can be expected to
remain in state correctional facilities."
ld. The Commission "found that almost
one-third of the 345 persons classified as
persistent felony offenders in the first
degree had been convicted of property
offenses." Id. "A similar percentage of
the PFO II's had been convicted of
property offenses." I d. "An additional
seven of the 27 persons classified only as
persistent felony offenders or habitual
criminals had been convicted of
property offenses." Id. The conclusion
is apparent: approximately one-third of
the persistent felony offenders presently
incarcerated in Kentucky prisons were
convicted of property offenses. As a
result of this empirical data, the
Kentucky Commission on Sentencing
and Prison Overcrowding specifically
recommended that "KRS 532.080,
commonly referred to as "the Persistent
Felony Offender Statute' be revised to
insure that the original intent of the
statute is being carried out, i.e., that
only offenders who commit multiple
serious felony offenses are given flat­time
sentences." Id. at p. 23.
To clarify the focus and impact of
Kentucky's Persistent Felony Offender
statute, certain amendments to that law
are necessary. The statute should be
amended to prohibit its application to a
recidivist offender when either the recent
charge against him is a nonviolent
should be revised to conform to the
following minimum standards: (i) [a]ny
increased term which can be imposed
because of prior criminality should be
reasonably related in severity to the
sentence otherwise provided for the new
offense; [and] [g]uidelines should be
adopted fixing presumptive ranges
within the limits authorized by the
legislature ... [with] a limit for extreme
cases [of] twenty-five years . .. [as] a
maximum authorized prison term."
ABA Standards, supra, 18-4.4(b)(i) &
(ii).
These general recommendations of
the American Bar Association should be
the touchstone for an enlightened
restructuring of Kentucky's Persistent
Felony Offender law.
In the final analysis, the myopic view
that the present generic Persistent
Felony Offender statute must remain
unaltered as the prosecution's chief
weapon against the career criminal is
indefensible. Kentucky's current
recidivist statute, with its inherent
inability to focus on the dangerous,
hardened criminal and its propensity to
inflict severe sentences on nonviolent
repeat offenders, is a blunderbuss in the
modern arsenal of Kentucky's penal
code, possessing the same lack of
accuracy and the same unintentioned
destruction as that archaic weapon.
property offense or his prior felony r-----------------.
convictions involve only nonviolent
property offenses. Even this simple
alteration of Kentucky's recidivist
statute would make it a more efficient
tool against the dangerous repeat
offender and reduce substantially the
disproportionate sentences for
nonviolent property offenders who have
one or more prior felony convictions.
"To reduce the disparities" caused by
persistent felony offender laws and "to
ensure that adequate provision is made
for the exceptional offender, it would be
preferable if, in place of a special
statutory extended term for the habitual
offender," the legislature would
{I) "develop more specific criteria by
which to identify the persistent felony
offender who poses a danger to
society," and (2) "promulgate special
enhanced guideline ranges for
exceptional offenders with a single outer
maximum term authorized by the
legislature for the offense." IV ABA
Standards for Criminal Justice {2nd Ed.
1980, Sentencing Alternatives and
Procedures. 18-4.4(l)(i) & (ii).
Under the second prong of the
recommendation, the recidivist's
enhanced sentence would be directly
linked to the authorized sentence for the
specific triggering offenses. Thus, not
only would the recidivist's past felony
conviction be utilized to determine
whether he should be treated as a danger
to society, but his enhanced sentence
would be within the term specifically
designated as appropriate punishment
for his current offense.
"To the extent that existing statutes
prescribing special enhanced terms for
habitual offenders are retained, they
'Brain Death'
Will Be Issue
In Legislature
(continued from page I)
and other supporters of the proposed
standards disagree with such
contentions.
"Many people who undermine the
passage of a 'brain death' statute are
confused as to what brain death actually
means," Watson said. "Some of these
opponents believe that people can return
from brain death to live a normal life
again. This is absolutely not true
because the criteria used insure
'complete and irreversible loss of brain
function' and that is death."
Opponents of the brain death
standards counter such arguments by
citing instances in which they say
'clinically dead' patients were able to
recover. However, Watson said
opponents of the proposed standards are
working to defeat a goal they should be
supporting.
''The people who oppose the statute
don't understand that their efforts are
actually undermining life because people
who could be saved by organ transplants
will not be able to get them," Watson
said.
(For further reference, see "Brain
Death, The Patient, The Physician and
Society", 18 Gonzaga Law Review 429;
and "Guidelines for the Determination
of Death", 246 Journal of the American
Medical Association).
6 Louisville Law Examiner, December, 1984
'49 Graduate Is Top Judge In L.A. County Briefs
Judge Thomas T. Johnson, a 1949
graduate of the U of L School of Law,
has been unanimously elected by his
fellow judges to serve as Presiding Judge
of Los Angeles County Superior Court
in 1985.
Judge Johnson was elevated to
Superior Court in May, 1973, after more
than two years as a Los Angeles
Municipal Court judge. His Superior
Court assignments have included service
as Supervising Judge of the Law
Departments, Central District,
downtown Los Angeles. Also, . Judge
Johnson has been chairman of the
Grand and Trial Jurors Committee.
Johnson practiced law privately in
Los Angeles for 12 years before
becoming a judge. Earlier, he had been
an attorney in the Claims Department of
the U.S. Department of Justice. and
practiced for a year with the firm of
Doolan, Helm, Stites and Wood in
Louisville.
From 1951 to 1957, he worked for the
Southern Gravure Corp., in Oakland
and at its headquarters in Louisville.
Fred Graham to Speak
CBS News Legal Correspondent Fred
Graham will deliver the annual Evelyn Crady
Adams Lecture for the School of Law on
January 23, 1984 at 8:00 p.m., according to
Mary Jo Leugers, President of the Louisville
Law Forum.
Graham will discuss the expected trend of
the Supreme Court during the second term of
the Reagan Administration. The lecture will
take place at 8 p.m. in Middleton Auditorium
on Belknap Campus.
Natural Resources Writing
Competition
Papers on the topic of natural resources,
energy, or environmental law as it applies to
current natural resources issues are eligible for
the Natural Resources Student Writing Com­petition
sponsored by the American Bar
Association's Section of Natural Resources
Law. The contest's first place winner will be
awarded a cash prize of $I ,000; second place
will receive $500. For more information, see
the Moot Court bulletin board.
Mineral Law Writing
Competition
He served in the Navy from 1942 to
1946 in World War II, the final portion
of that time as an officer on the U.S.S.
Lexington. The judge earned a
bachelor's degree in mechanical
engineering at U of L before entering
law school. He was born Feb. 26, 1923.
He and his wife; Marianne, reside in
Pacific Palisades.
Judge Thomas T. Johnson, a 1949 U of L graduate, has been elected presiding
Judge of the Los Angeles County Superior Court.
The Eastern Mineral Law Foundation is
sponsoring a legal writing competition for law
students and offering cash prizes of $1 ,000,
$750, and $500. Any topic pertaining to the
mineral or natural resources area which a par­ticipant
deems appropriate to submit is accep­table.
Preference will be given to topics rele­vant
to natural resources law in the eastern half
of the United States. For more information see
the Moot Court bulletin board.
UNIVERSITY OF SANTA CLARA SCHOOL OF LAW
1985 SUMMER LAW STUDY ABROAD
TOKYO, JAPAN: June 19-August 9
Emphasis on U.S.-Japanese trade. Courses in Japanese Legal
System, International Business Transactions, Comparative Law.
Internships available with Japanese law firms and corporate law
departments. Instruction primarily by Japanese professors and
practitioners. Visits to governmental offices and company legal
departments.
STRASBOURG,FRANCE
GENEVA, SWITZERLAND: June 7-July 27
Emphasis on international human rights and public international
law. Taught by recognized experts from around the world. In
cooperation with International Institute of Human Rights
(Strasbourg) and Henry Dunant Institute (Geneva) .. Courses on
Sources of International Law, International Organizations, Human
Rights. Law of the Sea, Outer Space Law, Civil Law and
Humanitarian Law. Internship possibilities.
ALL COURSES ARE TAUGHT IN ENGLISH.
APPROVED BY THE AMERICAN BAR ASSOCIATION
For a detailed brochure, contact:
Institute of International & Comparative Law
University of Santa Clara School of Law
Santa Clara, California 95053
(408) 554-4162
OXFORD, ENGLAND: July 1-August 11
Students live in 15th century Oxford College and are taught by
Oxford professors in Oxford Tutorial Method. Course offerings
include Jurisprudence, European Economic Community Law,
Legal History, Computers and the Law and various comparative
courses.
HONG KONG: June 9-July 31
Emphasis on Hong Kong as the commercial focus for U.S. trade
with China and the laws of Hong Kong and Asia. Subject areas
include financing and taxation of international transactions
through Hong Kong, Commercial arrangements in Asia, and the
emerging commercial structure of The People's Republic of
China. Internships available with Hong Kong law firms,
corporations, banks and the government.
SINGAPORE: June 1 0-July 31
Focus of the program to be held at National University of
Singapore will be the legal aspects of investment and
development in Southeast Asia. Resources available: Center for
Southeast Asia Studies, Asia Pacific Tax and Investment
Research Center. extensive English language library in a modern
law school with a local faculty of recognized experts on
problems of trade, investment and development in the region.
Internships available with Singapore law offices.
To reserve your place, please Include a $100.00 deposit.
Louisville Law Examiner, December, 1984 7
- -
Sexual Abuse of Children Targeted by Local Unit -
(continued from page 1)
EMCU also runs a background check
on suspected child molestors. Sex crimes
against children have one of the highest
recidivism rates of any crime. In many
investigations, suspected offenders will
have prior sexual convictions and a
background check will reveal them.
If the EMCU team discovers two or
more victims, they will proceed with
prosecution. The unit will never take a
case to court based solely on the
testimony of one victim. When a child's
testimony is pitted aginst the testimony
of an adult supported with dozens of
character witnesses for the defendant,
Hobbs said a good defense attorney can
build a case that will shed more than
enough doubt on the child's testimony
to acquit the defendant.
Armed with the corroboration of
several victims, EMCU then seeks an
indictment against the suspect and at the
same time tries to show probable cause
for a search warrant.
"Pedophiles almost always have
incriminating evidence in their home,"
Hobbs said. "We usually find photos of
his victims, both clothed and naked, and
often times he'll have photos of himself
with the victims.
EMCU arrests and convictions have
revealed that pedophiles are usuaJly
white males between the ages of 35 and
60. The offenders usuaJly come from
middle-class and upper middle-class
backgrounds. They're educated and
highly mobile which makes convictions
even more difficult to obtain.
"We've arrested lawyers, teachers,
counselors, priests and international
businessmen," Hobbs said.
And while pedophilia usually involves
parties of the same sex (men with boys,
women with girls), Hobbs said there are
exceptions. EMCU discovered one
professional woman in her 30's who was
having sex with boys between the ages of
11 and 13.
"When we took it to the grand jury to
get an indictment against her for rape
and sodomy, the jury laughed at us and
said the boys enjoyed it," Hobbs said.
The results might have been different
if the offender had been a 30 year-old
male and the victims had been . young
girls, Hobbs said.
The sexual exploitation of children is
an organized effort on a national scale,
according to Hobbs. Pedophiles have
formed the North American Man Boy
Love Association (NAMBLA).
NAMBLA has a defense fund for
members charged with sexual offenses.
The association publishes books and
newsletters to help pedophiles improve
their techniques for picking up young
boys. One of NAMBLA's publications
lists favorite places to pick up young
children in major U.S. cities, including
Louisville, with the intersection of
Fourth and Park in Old Louisville
included on the NAMBLA list.
Hobbs said another national
organization for pedophiles is the Rene
Guyon Society, a group whose
philsophy is illustrated by the motto:
"Sex before eight or it's too late."
The Louisville and Jefferson County
Exploited and Missing Child Unit has
attracted much national attention for its
efforts to stop sex crimes against
children. In the future, Miami and other
major cities will be working to
implement similar programs in their
communities.
Medical Testimony is Critical in Child Abuse Cases
By Benjamin Johnson
One of California-'s leading pro­secutors
in the area of child abuse ad­dressed
the nation and Louisville's legal
and medical communities recently in a
live teleconference beamed to the
University of Louisville campus.
In a discussion focusing on the eviden­tiary
problems of successfully trying and
convicting child abuse offenders,
District Attorney Jacqueline Conners,
supervising prosecutor for the Sexual
Crimes Program of Santa Monica Coun­ty,
California, emphasized the impor­tance
of expert medical testimony.
"The role of the medical profession is
almost always a critical factor" in bring­ing
cases of physical and sexual abuse in­volving
children to court, according to
Connors. Reasons for this include "the
general legal incompetence of young
children to testify, the climate of pre­judice
and disbelief by adults of
children's claims of physical and sexual
abuse, the normal coping behavior of
children and the absence of clear-cut
physical evidence" of abuse.
Expert testimony often surmounts
these barriers by specifically addressing
the medical and psychological effects of
abuse. While "the areas in whid1
medical testimony has been used vary
with the particular facts of each case of
abuse," Connors said, medical evidence
is especially effective in analyzing signs
of sexual abuse that might otherwise go
undetected. She went on to give "acci­dent"
as an example of a defense that
may be disposed of by physical evidence.
The emotional effects of abuse are
often as telling, according to Connors.
"Psychiatric expertise in conjunction
with medical expertise has also been
widely used to rebut increasingly
creative defenses to charges of child
abuse," she said. Testimony of this sort
can address the child's "emotional re­sponses
to abuse such as bed-wetting,
crying, nightmares, stranger anxiety,
peer play, and so on." Also, psychiatric
expertise has taken on new significance
in interpreting some of the most disturb­ing
evidence of sexual abuse
-photographs that depict children in sug­gestive
postures. Abusers frequently
save these "treasures," Connors said,
underlining their importance as hard
evidence.
Connors concluded her discussion
with remarks on the impact of compell­ing
evidence at the procedural level.
"Due to the unique nature of these
cases, full trials are the exception rather
than the rule," she said. "Jurors are not
sympathetic to child abusers and,
assuming that the evidence is credible,
most offenders prefer to throw
themselves on the mercy of the court at
an early stage."
8 Louisville Law Examiner, December, 1984
DO SOMETHING NOW
TO PROTECT YOUR
FUTURE!
(AND YOUR DAUGHTER'S)
JOIN KENTUCKY CHAPTER
NATIONAL ORGANIZATION
FOR WOMEN
P.O. Box 1801, Louisville, KY 40201
Name--------------------------------~--------------
Address _________________________________________ City, Zip __________________ _
Annualdues:$35
Special ~ues ($11 to $24) for
·those who cannot pay more.
John Ellis is Triumphant
In Moot Court Contest
For the first time in eight years, a male
has emerged victorious in the annual
Pirtle-Washer Moot Court Competition.
This year's competition involved a Title
VII Equal Employment Opportunity
case and was separated into individual
oral advocacy and brief writing
(competitions.
In the oral advocacy competition, the
winner was John Ellis, the runner-up
Terri Johnson, and the second runner­up
Kathryn Callahan and Doug Neagli.
Ellis and Johnson also shared honors as
co-winners in the brief writing
competition and Stauffer "Corky"
Malcom received honorable mention for
his written brief.
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40292
Members of the Moot Court Board
said they were "very pleased" with the
quality of judges who presided at this
year's competition. Former Kentucky
Supreme Court Justice Marvin
Sternberg judged the briefs and also
served on the panel for the oral
competition finals. Others presiding in
the final were Judge Charles M. Allen of
the United States District Court for the
Western District of Kentucky, U.S.
Attorney Richard Dennis and U.S.
Magistrate Harley Blankenship.
Presiding during the semi-final rounds
were Judges Michael 0. McDonald and
Anthony D. Wilhoit of the Kentucky
Court of Appeals, and Justice Calvin
Aker of the Kentucky Supreme Court.
John M. Harlan Louis D. Brandeis ' ·. . tfii· . '
~·
Louisville~-··---
Law Examiner AMERICAN BAR ASSOCIATION A WARD FOR EXCELLENCE, /984
Volume 10
Increasing Numbers of
Heart Transplants will
Make "Brain Death"
Proposals a Major
Issue in Kentucky
..................... page I
Police/Social Worker
Unit Working to
Prevent Sexual Abuse
of Children
..................... page I
Kentucky's Persistent
Felony Law is
Debated by the
Attorney General and
a Public Advocate ·
..................... page 4
Law School Changes
Policy on Day and
Night Classes
............... ...... page 3
December, 1984 Number 3