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Judges' Justice: A review of Kentucky's shock probation laws

Published: May. 11, 2011 at 10:55 PM EDT|Updated: Jul. 18, 2011 at 7:30 PM EDT
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Susan Lukjan
Susan Lukjan
Thomas Clay
Thomas Clay
Thomas Knopf
Thomas Knopf
Debbie Moskwa
Debbie Moskwa

LOUISVILLE, KY (WAVE) - Kentucky believes in second chances - at least when it comes to some people convicted of crimes, some of them serious. It's one of only a handful of states in the country, along with Indiana, that has a shock probation system.

"It was a shock," said Susan Lukjan, one of the beneficiaries of the system. "I mean, it's a whole different world for somebody like me."

In Lukjan's whole life, she'd had a couple of traffic tickets. Then a jury convicted her of burning down her business, Campbell's Gourmet Cottage, and a judge sentenced the mother and businesswoman to prison, to serve 12 years alongside violent criminals. Lukjan says the inmates and the guards realized she didn't fit in right from the start.

"There was a 19-year-old in there for kidnapping/murder for $1,200," Lukjan said, who spent her birthday, Thanksgiving and Christmas all behind bars. She said the toughest part was, "the isolation away from everybody that I knew."

Then this January, after serving six months, she was released and given a second chance, thanks to Kentucky's shock probation law.

"In the case particularly of Susan Lukjan, I think she was an ideal candidate for the notion of shock probation," said defense attorney Thomas Clay. "She'd never been incarcerated before. She was down in woman's facility and she was, in fact, truly shocked."

Clay represents Lukjan. She's one of around a hundred clients he's asked a judge to "shock," or rule they've had enough of a taste of the justice system to be scared straight, but the current shock probation system, to Clay, is what's really stunning.

"Once a judge makes a decision to either grant or deny shock probation, there's no review from that decision," Clay said. "The judge has the final say on it. That's kind of unusual in our system of justice because usually a judge's decision is subject to review by an appellate court."

The lack of accountability when it comes to shock probation does not end with lack of judicial review.

Our WAVE 3 investigation into shock probation court records over a five year period in Jefferson County shows circuit judges grant the request between 38 and 51 percent of the time. What we can't tell you - and what those judges don't know - is how often those given a second chance go back to a life of crime. The Administrative Office of the Courts does not keep track of those numbers.

"There are some statistics that the Administrative Office of the Courts won't consider, but yes, I'd like to know whether it was right or wrong," said Thomas Knopf, a former District and Circuit Court judge. "Usually you find out."

In his over 25 years on the bench in Jefferson County, Knopf was asked a number of times to give defendants shock probation.

"I think it's one of the more difficult decisions because when make a bad decision you let someone out that would cause other havoc or crimes, you'll answer for it," he said.

Cases, like the Moskwa family's, prove that point. Knopf was not the judge on the case, but it was a shock probation decision that went horribly wrong.

"Families are being re-victimized unduly," said Debbie Moskwa. "It's unnecessary and it has to stop."

Moskwa's son and husband were passing through Kentucky in 2002, when a drunk driver slammed into their van. Her husband was hurt. Her son, Ricky, died.

Moskwa has lobbied lawmakers for the last five years to change the shock probation system and make defendants who have killed someone in a drunk driving crash ineligible for shock.

The man responsible for her son's death and the death of another woman, Vincent Rutledge, was shocked just months after getting his sentence. In 2009, a second man convicted in connection with the death and who served 3 years of a 7 year sentence, Matthew Burton, went back to prison for another crime.

That story has failed to get lawmakers' attention. For each of the last five years, the bills Moskwa supported have died in committee.

"I don't want another citizen of Kentucky or another citizen of this country who use these highways to suffer what we've had to suffer," she said.

Clay would also like to see some changes to the law, but is sympathetic to how tough it is for judges in those kinds of DUI homicide cases.

"Judges who make these kind of decisions on probation for these defendants have a very difficult task to perform and they're damned if they do and damned if they don't," he said.

But he sees another side: The clients, like Susan Lukjan, who get a second chance and who really are shocked into a better life.

"People who are granted the privilege of shock probation get the message," Clay said. "They recoil from anything that might result in their being re-incarcerated."

Clay and Lukjan are appealing her conviction. Lukjan says she is also trying to find a job, something that has been a struggle since her release.

The efforts of Moskwa and others working to change the shock probation laws, especially in the case of deadly DUIs, will continue next year. You can learn more about how to join those efforts, by clicking here.

Knopf, however, says while he's not in favor of a judge granting shock in those cases, you can count him amongst those who hope the legislature will continue resisting taking that discretion out of a judge's hand.

Copyright 2011 WAVE News. All rights reserved.