Daniel Duane Gilbert v. Dewey Sowders, Superintendent, Kentucky State Penitentiary, Respondent

I concur in the judgment that Kentucky’s incarceration of Daniel Duane Gilbert violates the United States Constitution. I write separately because I believe that the majority misconceives the issue presented by this case.

I

Gilbert was convicted of attempted kidnapping, wanton endangerment in the first *1148degree, two counts of first-degree robbery, kidnapping, and first-degree rape. On December 2, 1976, he was sentenced to 105 years imprisonment. A notice of appeal was filed on December 10,1976. Gilbert, an indigent, was appealing in forma pauperis with the volunteer assistance of trial counsel.

Ken…