The 3rd meeting of the Interim Joint Committee on Judiciary was held on Friday, December 7, 2007, at 10:00 AM, at Union College in Barbourville, Ky. Senator Robert Stivers II, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Robert Stivers II, Co-Chair; Senators Ray S. Jones II and Jack Westwood; Representatives Derrick Graham and Arnold Simpson.
Guests: Jack Conway, Attorney General Elect; Dana Mayton, Deputy Attorney General; John Rees, Commissioner, Department of Corrections; Tommy Turner, County Judge Executive of Pulaski County, Ky.; Vince Lang, Kentucky County Judge Executives Association; Marshall Long, Kentucky Jailers Association and Ken Schwendeman, Legislative Liaison for the Justice Cabinet.
LRC Staff: Norman Lawson, CSA; Jon Grate; Ray DeBolt; Joanna Decker and Carolyn Gaines.
Senator Stivers called the meeting to order and thanked the President of Union College for providing a location for the Interim Joint Committee Meeting. The roll was taken silently. A quorum was not present.
The first speaker was Attorney General Elect Jack Conway accompanied by Dana Mayton, Deputy Attorney General. Attorney General Elect Conway described Ms. Mayton's qualifications for her position including being Associate Council for the University of Louisville and being former Commissioner of Revenue for the Commonwealth. Attorney General Elect Conway then described his legislative priorities as reorganization of the Attorney General's Office, drug law enforcement particularly relating to prescription drugs, stemming the flow of drugs from the Interet, and increasing the number of investigators assigned to drug investigations. The next program of emphasis will be cybercrime including child pornography, solicitation of children for sex, cyberstalking, cyberharassment, and working with the National Association of Attorneys General on legislation and programs to verify users age and verify parental permission for children to use sites such as My Space and Face book. Attorney General Elect Conway observed that the past two budgets held the moneys allotted to the Attorney General at a flat line and indicated that he would be submitting an increased budget request to meet the needs of the office. Two of the items for increased funding will be additional prosecutors and an updated computer system for prosecutorial use.
Representative Simpson asked if identity theft will be a program of emphasis to which Attorney General Elect Conway replied that it would, that he would assign more investigators to the program and include identity theft in his cybercrime initiative. Attorney General Elect Conway also spoke of a bill by Representative Webb which would place more onus on companies collecting social security numbers and personal data to safeguard the material and control sharing of the information. Representative Simpson also asked about a practice of some Commonwealths and County attorneys to break a case involving multiple charges into separate cases in order to show a higher caseload and then ask for more money. Attorney General Elect Conway indicated that he would be reviewing Prosecutors Advisory Council procedures and would be more active in attending meetings of the council.
Senator Stivers indicated a need for more help in requiring holders of financial information and other data to clear the files of innocent victims of identity theft in a more rapid and effective manner. Attorney General Elect Conway indicated that this is a problem in all states and involves interstate commerce issued and that he will work with the National Association of Attorneys General to seek a nationwide solution to the problem. Senator Jones suggested that the Attorney General work with other states to expand the use of the KASPER prescription drug tracking program to surrounding states to improve sharing of information and to be able to better crack down on "doctor shopping" by persons seeking illegal prescriptions. Attorney General Elect Conway indicated that he would be networking with other states on all illegal drug issues.
Senator Stivers observed that a United States Attorney would be appointed for the Eastern District of Kentucky and observed that he hoped that some of the Attorney General's staff could be cross designated as federal prosecutors to assist in drug and other problems.
Senator Westwood asked about the Attorney General Elect's views about illegal immigration to which Attorney General Elect Conway replied that the problem is largely a federal problem and needs a federal solution. Attorney General Elect Conway observed that the Federal 287G program requires local law enforcement officers to be under the direct supervision of federal officers and that he felt that the program might not work as well as expected. Senator Jones observed that employers of illegal aliens who do not pay taxes, and wages could be prosecuted in state court for tax evasion.
The next speaker was Department of Corrections Commissioner John Rees who reported to the committee on the first months of the implementation of 07 RS HB 191 relating to jail medical programs, jail prescription drug programs, and the catastrophic medical care program. Commissioner Rees observed that counties have see a 35% discount on secondary medical care as a result of participation in the Kentucky Corrections Health Services Network that the ability to audit medical claims resulted in $188,266 in direct savings; the initial projected cost of $6.00 per inmate was reduced to $5.75 per month; and that the $10.52 that the state was paying for inmates in Class D jail programs and halfway houses was reduced to the same amount. This resulted in an additional $152,000 savings. The transfer of pregnant inmates to the state has resulted in not only a cost savings but better prenatal care and counseling for the pregnant women. Similarly, the transfer of catastrophic medical cases has resulted in a 60.55% savings and that when an inmates with a catastrophic illness is transferred to the state the county pays nothing for medical bills and for incarceration costs. Counties participating in the Corrections Pharmacy program receive an average 40& discount from retail drug prices. The Commissioner submitted a detailed county by county report of costs and savings for each of these programs. Representative Graham asked when the Department paid for inmates in a jail to which the Commissioner replied that the county bears the cost for pretrial inmates and for inmates sentenced to the county jail for misdemeanors, the state pays for state inmates after conviction prior to being sent to the state system and pays a per diem for inmates sent to a county jail under the Class D and Class C felon program. When asked about rejected medical bills from providers, the commissioner responded that there is a procedure for negotiating these with the provider.
Commissioner Rees then turned to the state prison system and indicated that there are currently approximately 22,000 inmates in the system with 13,738 in prisons and 8,794 inmates in county jails and halfway houses. Additionally, there are approximately 38,000 persons on probation and parole. Commissioner Rees observed that the prison population which had been flat for a couple of years had grown significantly in the past two years. According to the commissioner, 60 percent of the new inmates are Class D felons, most have drug or alcohol problems, the number of substance abuse beds has been increased from 400 beds to 1400 beds but more are needed. Commissioner Rees observed that the 2,600 inmate per year increase in population is not sustainable. "You need to look at who you are putting in jail." the commissioner observed. The commissioner further observed that we used to look up dangerous people who we were afraid of while now we are locking up nonviolent people we are mad at. Commissioner Rees observed that if the 23,000 inmates, 38,500 persons on probation and parole, and 4,000 staff were all placed in Commonwealth Stadium it would be only 5,000 persons short of capacity. Commissioner Rees indicated that there are 400 inmates serving time for nonsupport who are not only not supporting their family but for whom the state is paying the cost of incarceration and welfare costs as well.
The commissioner suggested that one needed solution is to put more inmates to work and use the money they get to pay child support, restitution, fines, and other costs. This can be done through passage of the Prison Industries Enhancement bill which is a federally authorized program which allows inmate made and repaired goods to be sold in interstate and international commerce. All work is done at the institution and inmates are not released to do the work. The inmates learn a trade which they can use when they are released. The commissioner had other suggestions with regard to the prison problem which included additional drug treatment beds and programs, a comprehensive review of the statutes to reduce the length of stay, to look at the 85% service time for offenders, to "tone everybody down" in the ever increasing demand for more felonies, longer sentences, and other features which have caused the inmate population explosion, build the remainder of the Little Sandy Correctional Complex to its full capacity.
With regard to local jails the commissioner suggested closing smaller jails, increased use of regional jails, a "Certificate of Need" program for building jails, build no jail less than 300 beds, have state supplied jail plans designed for maximum efficiency for various size jails which the counties must use in building jails, redistribution of jail beds where there are most needed, monitor staffing and staffing costs, the state should give incentives for regional jails, the state should encourage quicker prosecution of cases which now create a situation where a person remains in jail for a year or more and the county must pay the cost of incarceration, and that there does not need to be a state takeover of the county jails. Senator Jones indicated that a county in his district built a 300 bed jail and that the capacity was quickly exceeded. Representative Graham indicated that the public needs to be educated about the benefits of drug treatment over incarceration. Senator Stivers indicated that jail population growth is a high priority issue and that corrections is the second highest growth item in the state budget. With regard to immigration issues the commissioner indicated that he and his staff have met with Immigration and Customs Enforcement, have offered training locations for the 287G program, have offered to have corrections and probation and parole personnel to participate in the 287G program and have provided Immigration and Customs Enforcement the names and required information for illegal alien inmates currently within the system but have received little or no response from the federal government.
The next speaker was County Judge Executive Tommy Turner with Vince Lang of the Kentucky County Judge Executives Association and Marshall Long of the Kentucky Jailers Association. Judge Executive Turner observed that jail costs now account for 50% to 80% of a county's budget and that deficits in the jail budget are causing counties to enact payroll taxes, insurance taxes, and cut other county programs to pay for the increasing number of inmates. Judge Executive Turner further observed that the "bed allotment" program begun in 1982 to provide state payments for county jail inmates has not been increased since its enactment and was subject to a 10% cut by the Governor several years ago and that the cut has never been restored by the General Assembly. This is despite the fact that the number of inmates has drastically increased and that the costs of medical care and the costs of incarceration have risen as a result of these increases and the cost of inflation. The Judge Executives Association provided a county by county breakdown of the jail costs and deficits and a proposal for increasing the 2008 county jail bed allotment by $14.8 million and increasing the per diem that the state pays for Class D felons assigned to county jails. Mr. Lang indicated that there are five times as many inmates and that the cost of living has gone up 212% since the bed allotment was initiated and that the total jail deficit amounts to approximately $128.5 million.
Marshall Long of the Kentucky Jailers Association indicated that the jailers and county judge executives have agreed that there should be no state takeover of county jails. Mr. Long indicated that a bill is close to being agreed upon that will call for standardized plans, a certificate of need process, closing of some life safety and smaller jails, increased use of regional jails and redistribution of beds. Senator Stivers observed that counties were having to take money from other county programs to pay jail costs and that all county judges need to come to Frankfort during the session to lobby for their needs. Representative Graham urged the County Judge Executives to speak to the Governor about their jail needs and then asked if regional jails cost less to which the reply was that there is efficiency in the larger size of regional jails and in their operation. Senator Stivers asked what the cost of construction of a regional jail might be to which Commissioner Rees responded that the cost was approximately $60,000 per bed which would result in a cost of $18 million for a 300 bed jail. Commissioner Rees indicated using standard plans would save architects fees and would decrease operational costs markedly. Commissioner Rees also indicated that the Department had recommended closing the jail in Union County which would result in an immediate savings to the county of $600,000.
The next speaker was Mr. Ken Schwendeman, Legislative Liaison for the Justice Cabinet who indicated that the new Secretary of Justice, J. Michael Brown, would be unable to attend the meeting because of scheduling problems. Mr. Schwendeman indicated that several bills which were presented in pervious years would be resubmitted including a bill specifying that juvenile justice facility plans and surveillance tapes were not public records, the prison industries enhancement bill, pretrial drug diversion facilities, permit background checks on cabinet secretaries, prosecutor and defender law school loan forgiveness, permitting persons to do background checks on themselves, custodial sexual misconduct as a felony, the Sudden Infant Death Syndrome definition and procedures updated to match current practice, banning of alcohol vaporizing devices (AWOL devices), and conforming juvenile procedures to match federal law. New proposals involve suspending commercial driver's licenses for drug offenses, defining absent without leave, non offender, and other terms in the juvenile code, prohibit requiring a polygraph examination of victim in sex offense case, increase the number of judges to 20 before a county had to take over a public defender program, provide Department of Public Advocacy expert witness funds for criminal appeals, provide for DNA collection from all felons, and to increase the salary of the Public Advocate to that of a Court of Appeals judge. Representative Graham asked about whether the new Secretary of Justice would support restoration of rights legislation to which Mr. Schwendeman responded that this was a policy matter for the General Assembly. Representative Simpson asked if there would be a proposal to update the Penal Code to which Mr. Schwendeman responded that there are several groups studying the matter but that proposals would be at least a year away. The meeting was adjourned at 12:00 Noon.