"Government Has to be Efficient if it is Going to Address the Problems of the Next Century"
Kentucky's newly appointed Secretary of the Justice Cabinet offers his views on the workings of the state's justice system

Robert F. Stephens

Upon his retirement as chief justice of the Supreme Court of Kentucky in May of this year, the Kentucky Bar and Court system lost one of its most influential public servants in Robert F. Stephens. The Bluegrass State wouldn't be without Stephens' service for long, however, as he was quickly appointed Secretary of the Justice Cabinet for the Commonwealth of Kentucky. Stephens began his law career in 1951 as a clerk for the Kentucky Court of Appeals and served in various legal capacities -- ranging from private practice to attorney general to chief justice of the Supreme Court, a post to which he was elected in 1982 and held until his retirement from that position in 1999. In all, Stephens dutifully served more than 19 years on Kentucky's Supreme Court. He is the author of the Kentucky Supreme Court's historic opinion directing the Kentucky General Assembly to re-create the state primary and secondary education system and is an adjunct professor of law at the University of Kentucky Law School.

Governor Patton recently asked you to serve as Secretary of the Justice Cabinet. How is the chief justice position different from Supreme Court justice?

The term on the Supreme Court is for eight years and I was elected in the 5th District, which is basically Central Kentucky. The chief justice is elected by members of the Supreme Court and the term is four years. In October of 1998 I finished 16 full years as chief justice, but I still had two years left to serve on the court.

As one of your first major decisions as secretary of the Justice Cabinet, you asked Gary Rose, the commissioner of the state police, to retire and announced your intention to use a "civilian" head of this department. Why did you make this decision?

There was a policy difference between the executive branch of government and the commissioner. There are certain policies that the governor has been elected to carry out and the final decision is his. Since there was a disagreement, it seemed that the only way to get off dead center and get something done was to ask the commissioner to resign. It was a very difficult decision and had nothing to do with his ability. He was a good commissioner, a good policeman and a good person. The governor and I have talked for some time about putting a civilian in charge, and I know he has considered it for years. There are arguments on both sides, but I think there are two main factors: When your life's work is in an organization and you rise up to the top, you make enemies and you make friends. It is hard to separate those when you are running an organization.

Do you think that Kentucky's state police force is large enough?

No, I don't. We have authorized 1,000 troopers. New duties, like serving emergency protective orders and domestic violence orders, can be very dangerous and you really need to send two officers instead of one. The cabinet is going to ask for more troopers. Our state police force is excellent and I think we will have no trouble getting good applicants for the commissioner position because of the opportunity to make a really fine force even better. That is my goal.

Did your experience on the court help you to better understand how the justice system operates?

I think so. I was attorney general before I got on the court. I helped get the unified prosecutors system started. That gave me additional experience. Serving 16 years as chief justice -- the CEO or chairman of the board or whatever you want to call it -- of the Court of Justice was great experience. The court had 2,700 employees and a $160 million budget. But I am absolutely dumbfounded by the bureaucracy; the level of paper work at the Justice Cabinet is much more tedious than I experienced as chief justice.

The Justice Cabinet oversees the parole board, internal investigation, the state medical examiner, corrections department, private prisons, juvenile justice, criminal justice training and other related services. What areas of the Justice Cabinet need attention? Of all these areas, are there some that may need more attention that others?

I have had a very high learning curve. But we are fortunate to have some top-flight people heading these departments. For example, in the Department of Corrections, Doug Sapp has been there for many years. The governor recruited him out of retirement, and he is a highly skilled administrator. He is very good with people, and knows prisons, parole and probation. He knows the policies and the practices backward and forwards, and is very creative. He is on top of everything. Ralph Kelly heads the Department of Juvenile Justice. He grew up in that field in New York and New Jersey; he is very skilled. In criminal justice training, the legislature has passed a bill requiring that all peace officers have a certain amount of basic training. The state now trains 9,000 people a year. John Bizzack, a former Lexington police officer, is head of criminal justice training and does a really good job. Kentucky State Police is a really fine organization also. There are some problems in other agencies, none of which I consider are major, but problems that need to be addressed.

Do you favor private or state-operated prison systems?

A couple of weeks ago, I finished a tour of all of our cabinet institutions in Eastern Kentucky. I visited 16 private prisons and the ones that the state operates. I like the idea of privatization very much. The per diem rates for private prisons by statute have to be 10 percent less than what it costs the state to operate, which gives a little financial advantage. The private institutions build the prison so we don't have to tie up the state's money. The state is getting ready to build two new prisons in Eastern Kentucky. They are medium-security facilities that will cost close to $200 million. I'm not sure what the capacity is going to be, but approximately 900 prisoners each. You might be surprised to know that Kentucky's prison population has been flat for about 18 months. But the number of persons on probation and parole is increasing at the rate of about 250 per month. It is a lot cheaper to supervise someone who is working than it is to take care of someone in prison. It costs an average of about $15,500 a year per prisoner. The legislature has given a lot of consideration to people who are white collar criminals, who have been rehabilitated, and who can be treated outside prisons. Legislatures all over the country recognize that there are very extensive alternatives to incarceration.

What is Kentucky's prison population?

Approximately 15,000 prisoners are in the state system, not including prisoners in the county jails. About 18,000 persons are on supervised probation or parole and that is increasing at the rate of 200-250 a month. The state is building nine jails for juveniles plus we're going to buy the facility in Louisville -- so that will give us ten. Kentucky is the only state that has a licensed nursing home for senior prisoners; there are over a 100 who are wheelchair-bound.

Would you consider the state's medical examiners to be on the leading edge of science and technology?

Yes, I think so. Dr. Tracey Handy is our new medical examiner, and she is a remarkably talented woman. She is highly competent and a real scholar. The department needs an expert who has specialized training in pediatric pathology. The Cabinet is going to ask the general assembly to fund that new position.

With all of the emphasis on abused children, the state needs a specialist in this area. In your prior capacity as a chief justice, did deficiencies in the Justice Cabinet become apparent to you upon review of cases brought before the Supreme Court?

I was a little bit concerned about DNA evidence. It is so overwhelming in its nature -- 50 million to one and it almost guarantees a conviction. It's the cabinet's responsibility to make sure that DNA evidence is valid, and I think clearly it is.

In your early political career you served as county judge/executive of Fayette County and were instrumental with [former Lexington mayor] Foster Pettit in merging the county and city into an urban government. Do you feel the merger was successful?

Yes, I think so. I am not suggesting that it is perfect and that it doesn't need some modification, but I shudder to think what would have happened in Fayette County if we had continued the political and economic competitiveness that existed between the two governments. The merged government has done a great job. The council has representation now; there are a lot of women and minorities on the council, which was one of my goals. And, the council is nonpartisan. I am satisfied. Lexington has had some very good mayors and council members over the years. The merged government has addressed the problems of Fayette County pretty well.

Kentucky has 120 counties. Would you recommend mergers of smaller counties in order to improve the efficiency of local government?

The political realities are such it will be very difficult to merge counties unless there are pressing reasons for county officials to give up their positions. It is going to take a lot to move elected politicians to do that. Do you think offering some type of financial incentives to counties that agree to merge would help? I haven't really thought about it, but some politically astute people could come up with plans and alternatives and incentives to promote mergers. That might be a way to get it done. Government has to be efficient if it is going to address the problems of the next century as this state grows. There are a lot of problems that need to addressed. Our citizens would be much better served and problems would be more easily solved if we had less counties, less political conflicts and less special interests. This concept is hard to sell on political science-type principles. The politicians that are in office are interested in staying there; it is going to take a skilled leader to marshal the arguments, use the incentive packages and political talent to get mergers done. I think it needs to be done.

One frequent complaint is the inability of judges to make timely decisions on cases -- justice delayed is justice denied. Are there judges who consistently fall into that "slow decision" category?

Of course there are. The solution is to elect judges who feel a strong responsibility of getting their work out. Pay is very good now; a lot of judges in the state get their work out in a hurry. There was one judge who did not like and would not try contested divorce cases. He said 'You settle those things.' That is wrong and there are not many judges like that, but I always use him as an example of what was wrong with the system.

The solution is called 'time standards.' The American Bar Association has come up with a recommendation and many states have adopted it. And it works like this. There are three different categories of cases -- simple, medium and complicated. The rule says a judge has to dispose of all of his or her cases in the simple category in six months. The middle category is a year and the more complicated case is 15-18 months, with the understanding that if there is some extremely complicated case, with a huge amount of plaintiffs and lawyers, the judge could get permission for more time. If the judge doesn't adhere to the time guidelines, then he or she is subject to sanctions by this judicial commission. I think those rules ought to be statewide.

Would you recommend that individuals file a complaint with the court when a judge takes a long time to rule on a pending matter?

I would prefer that they would call the chief justice and let him deal with it, if he can without embarrassing the judge. If it doesn't work, then refer the complaint to the Judicial Discipline Commission. The costs of legal fees are high and if one party to a case is litigating and unwilling to equitably resolve the matter, the costs can be staggering.

Do you favor a rule, in certain cases, requiring the losing party to pay the other party's legal expenses?

There is in existence in Kentucky and in the federal rules for which judges, under proper showing, can punish lawyers and/or litigants for filing spurious claims or for excessive or improper delays. The only problem is that we have elected judges in this state and it is not very popular to discipline lawyers. Lawyers are the ones primarily interested in financing judge's campaigns and judges don't like to punish lawyers that they may get some money from the next time.

During your leadership, what improvements did the judicial system make in automation, document storage and retrieval and security?

We made a lot, but probably not enough. The most prominent thing was to get rid of court reporters and to use video taping. That innovation received national awards. We tried to focus automation initially in the areas that had the highest volume in order to speed up the process. The court has a statewide computer. Every circuit clerk in the state has access -- it can be used as a management tool by the judges and as an informational tool by the public and the press. You can find out the status of any case in the state. We have never been able to convince the general assembly to make a blanket appropriation for all courts, so we have had to implement improvements on a very slow basis. I don't know how many counties have security in the courthouse. When a court without security has a high profile case, like the Carrollton bus crash, the court has portable equipment. At one time we had six or seven retired state police who planned and provided security for the court. As new courthouses are built, security systems are designed into the building.

When you retire, what will you want the pundits to say about your years of service?

That I tried to make a difference in the judicial system. Recently I was asked to describe myself and I said 'aging idealist.'

Do you have a closing comment?

A lot of people think I should have retired and done nothing, but I am very fond of Governor Patton. I respect him. He is breath of fresh air for Kentucky. This job has certainly re-energized me. I turned 72 on the 16th of August and I probably ought to be out growing roses somewhere, but I have never grown a rose in my life.

Ed G. Lane is chief executive of Lane Consultants Inc. and publisher of The Lane Report.

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