The 1st meeting of the Interim Joint Committee on Judiciary was held at the summer meeting of the Kentucky County Judge Executive Association and the Kentucky Magistrates and Commissioners Association on Thursday, July 10, 2008, at 10:15 AM, in Lexington, Kentucky, at the Lexington Convention Center. Senator Robert Stivers, Co- Chair, called the meeting to order, and the secretary called the roll.
Members: Sen. Robert Stivers, Co-Chair; Rep. Greg Stumbo, Vice Chair; Sen. Clark, Sen. Jones, Sen. Seum, Sen. Stine, Sen. Westwood, Rep. Bratcher, Rep. Crenshaw, Rep. Graham, Rep. Lee, Rep. Owens, Rep. Rudy, Rep. Simpson and Rep. Webb.
Guests: Tommy Turner, County Judge Executive, Larue County, Legislative Chairman; Bill Drury, Magistrate, Spencer County, KMCA President; Justice Will T. Scott, Supreme County of Kentucky, accompanied by Laurie K. Dudgeon, Deputy Director of the Administrative Office of the Courts; Secretary J. Michael Brown, Justice and Public Safety Cabinet; and LaDonna Thompson, Commissioner, Department of Corrections.
LRC Staff: Norman Lawson, CSA; Ray DeBolt, Joanna Decker, Carolyn Gaines, Secretary and Andrew Howell.
Senator Robert Stivers called the meeting to order, the roll was called and a quorum was not present. The first speaker was County Judge Executive Tommy Turner, Legislative Chairman of the Kentucky County Judge Executives Association. Judge Executive Turner informed the committee that jails are the primary county problem, that counties are currently funding $130 million in jail costs, which represents a 2000% increase over a period of years. Judge Executive Turner complimented Justice Will T. Scott of the Supreme Court of Kentucky for innovative changes relating to the Uniform Schedule of Bail and increasing the use of bail as a form of pretrial release as an alternative to holding prisoners in jail prior to trial, giving a $50 per day credit for time spent in jail prior to trial against any fine subsequently imposed, and added that the counties would like to see a similar $50 per day credit against any cash bail which has been assessed but which the defendant is unable to pay. Judge Executive Turner urged the state to pay for medical costs for prisoners in jails and prisons at the Medicaid rate rather than the Medicaid rate plus 18% as currently provided for to reduce medical costs for prisoners in county jails, and to reimburse the counties for the entire portion of time spent in jail prior to trial for felony prisoners who are subsequently convicted or plead guilty. At present the counties must pay these costs and County Judge Executive Turner observed that prisoners may spend 18 months to 2 years in jail prior to a felony trial only to be released on time served with the state paying nothing for the prisoner’s incarceration and the county paying for the entire costs.
The next speaker was Spencer County Magistrate Bill Drury who is president of the Kentucky Magistrates and Commissioners Association. Magistrate Drury urged the passage of 2008 HB 398 which would have amended the third degree assault statute to include local public officials. The bill would have made assaulting a public official a Class D felony. Magistrate Bill Drury urged adding school board members, and legislators to the original proposal. Magistrate Drury cited a situation in Montgomery County where a County Judge Executive and a Magistrate were “brutally assaulted” and a situation where a disgruntled county employee killed a public official and another public employee before killing himself. In the assault case the perpetrator received a $500 fine. Representative Robin Webb observed that, as a legislator, she did not feel that she should be subject of special protection not offered to members of the public if she was assaulted. Representative Darryl Owens observed that in the assault case that, under present law, the perpetrator could have received 12 months in jail but that the penalty was not assessed and asked that if the offense was elevated to a felony whether the prison time would be assessed as opposed to a fine. Magistrate Drury responded that public officials need more protection from assaults.
Senator Dan Seum asked Judge Executive Turner whether recent cuts in the budget of the Department of Public Advocacy might increase the 400 day stay in jail prior to trial to which Judge Executive Turner replied that it probably would and that all of those increased costs would have to be borne by the counties. Representative Kevin Bratcher asked what jail costs were in County Judge Executive Turner’s county twenty years ago as compared with today to which the reply was that twenty years ago the cost was $100,000 while the current cost is $1.7 million with medical costs increasing the most rapidly. Senator Ray Jones asked if drugs, methamphetamine, and other factors were increasing the jail population to which County Judge Executive Turner replied, yes, and indicated that increased driving under the influence and child support enforcement were also responsible citing that whenever there is increased enforcement, addition of police, and an increasing public demand for jailing persons all have led to the current problem but that with increases in enforcement increases in jail cost recovery for the counties has not taken place and County Judge Executive Turner advocated use of drug treatment and similar programs to reduce jail expenses. Judge Executive Turner also added that medical treatment is costing $14 to $15 million per year and that the present Correct Care rates need to be reduced to the Medicaid rate.
Senator Stivers cited 2007 enactments by the General Assembly to provide reduced cost pharmacy programs, the use of the state Correct Care program, and the program by which local jail prisoners with catastrophic medical problems could be transferred to the state for further treatment, asked if these programs had helped reduce jail costs, to which Judge Executive Turner replied, yes, but that if the Medicaid rates were used costs could be further reduced. Representative Robin Webb observed that every part of the justice system needs to aid in reducing costs, that state revenues are down, that no new money is available, and that the cost reduction initiatives in HB 406, the state budget, releasing felons from state custody is already being criticized in the press. Judge Executive Turner observed that counties are capped on the amount of occupational tax and insurance tax they can collect and that counties have few revenue options as well. Senator Dan Seum observed that in his community that perhaps we have criminalized too many acts, that there are 60,000 unserved warrants, 15,000 of which are for felonies, that there are 40 judges that the violent crime rate is up, that last year there were 81 murders, and that the local government was interested in a new dog ordinance. Senator Seum further indicated that the community is short 100 police, that “perfect people” cannot be found to be police because of various minor offenses on their records and that former Corrections Commissioner John D. Rees observed at a Judiciary Committee meeting last year that we used to incarcerate people we were afraid of and that now most of the people we are incarcerating are people that we are mad at. County Judge Executive Turner responded that the issue is not overcrowding but money. Representative Stan Lee observed that state general fund revenues are up but what we have is a spending problem, not a revenue problem. Representative Lee then asked Judge Executive Turner if illegal aliens were a cost driver for Kentucky jails to which Judge Executive Turner replied that it is a problem in some counties. Senator Seum observed that we are criminalizing too many things and that he would like the counties help in developing a list of offenses do decriminalize. County Judge Executive Turner responded that we need to educate the public as to the costs of new crimes, increased enforcement, etc. Representative Greg Stumbo observed that in 2004 when Lt. Governor Pence’s drug task force was holding hearings and making recommendations that the group’s report observed that the escalating drug problem was escalating other crime, such as theft and other offenses, related to the use of drugs. Representative Stumbo observed that we have the best prescription drug abuse statute in the country and the best methamphetamine manufacture prevention statute in the country. Representative Stumbo further indicated that the report issued recommended that there be a nine cent per pack increase in the cigarette tax with the proceeds dedicated to drug treatment and education programs. Senator Stivers indicated that Senator Dan Kelly had proposed secure drug treatment programs as an alternative to incarceration for drug offenses but that the bill had not passed.
The next speaker was Justice Will T. Scott of the Supreme Court of Kentucky who reported on the recommendations of the Criminal Rules Committee which he chairs for reforms in the bail and pretrial release process utilizing nonfinancial conditions of release and an expanded Uniform Schedule of Bail which includes approximately 600 of 724 misdemeanor offenses and 10 felony offenses. Justice Scott complimented Senator Ray Jones on his passage of 2008 SB 92 which authorized the Supreme Court to include nonviolent, not sexual Class D felonies in the Uniform Schedule of Bail. Justice Scott indicated that releasing prisoners on bail has political risks. If a prisoner is released from jail and commits new crimes or does not comply with conditions of release that causes a problem for the community and for the judge who released the prisoner. Justice Scott urged that county officials and others need to contact the Supreme Court if they approve of the proposal, object to the proposal, or have suggestions for changes to the proposal.
During the deliberations of the committee, Justice Scott indicated that in 1970 there were 2,800 “mean people” incarcerated in Kentucky prisons while in 2007 there were 22,000 incarcerated in Kentucky prisons. Justice Scott observed that it is a Class D felony for a sports agent to contact a player, that UK law professor Robert Lawson studied 9 jails and found that 7 were overcrowded, with prisoners sleeping on the floor, and that pretrial release of prisoners from jail has declined by 50% since its inception. Justice Scott observed that elected judges are afraid to let people out of jail prior to trial because of public criticism. In detailing some of the changes to the bail program Justice Scott indicated that for many crimes the Uniform Schedule of Bail applies only to the first offense, that violent offenses are not eligible for bail, that driving under the influence second and subsequent offenses and first offenses with aggravating circumstances are not eligible for the uniform schedule, that subsequent offenses where there are addiction indicators are not eligible, that the Uniform Schedule of Bail must be used by every judge in Kentucky but that a judge who feels that the release of a particular person might pose a danger that the judge can deny that person bail under the Uniform Schedule of Bail by giving written reasons for the decision. If a person has some charges which are eligible for the Uniform Schedule of Bail but also has charges which are not on the uniform schedule then the person cannot be granted release under the uniform schedule.
Justice Scott further indicated that under the new bail rules that the sheriff will have the primary responsibility for releasing persons on bail although the clerk can also do so. The county must agree to the sheriff undertaking this new responsibility if the sheriff is to assume the responsibility. The jailer will receive a fee of $5 per person for taking a bond and must include a condition that the person released commit no new offense, not contact the victim of the crime except as authorized, and refrain from the use of alcohol or drugs. The uniform schedule proposes a $1,000 bail for a Class A misdemeanor with a 10% deposit, a $500 bail for a Class B misdemeanor with a 10% deposit, a $5,000 bail for a Class D felony with a 10% deposit, and specified bail for driving under the influence and alcohol intoxication offenses. County Judge Executive Tommy Turner indicated that the County Judge Executive Association applauded the court’s effort and urged county officials to write the Supreme Court of Kentucky expressing their support and further indicated that many first time arrestees have heart problems as a result of their incarceration, need medical care, and increase costs to the county, and that early release on bail might alleviate this problem. Justice Scott was accompanied by Ms. Laurie K. Dudgeon, Deputy Director of the Administrative Office of the Courts who was available for questions but none were asked.
The next speaker was Justice and Public Safety Cabinet Secretary J. Michael Brown who spoke of the history behind the recent moves to reduce overcrowding in Kentucky Prisons as starting with Governor Beshear’s budget address, continued with the Pugh Foundations report indicating that Kentucky led the nation in incarcerating persons for crimes, and resulted in the provisions contained in 2008 HB 406, HB 683 adding two members to the Parole Board, the Penal Code study resolution SJR 80, and the mandate that the Criminal Justice Council study changes to the Penal Code and the controlled substances laws. Secretary Brown observed that 80% of the inmates in the state prison system have been convicted of substance abuse offenses, have substance abuse related offenses, or substance abuse problems and commended the Drug Court program of the Court of Justice and urged its expanded use as effective alternative to incarceration. Secretary Brown observed that decriminalization of offenses is not needed but that what needs to be studied is what punishment fits what crime, and that lengthy incarceration be reserved for “unsafe incorrigibles” which is about 1,900 persons with 100 of them currently serving life without parole sentences.
The next speaker was Ms. LaDonna Thompson, Commissioner of Corrections who spoke of the department’s implementation of the initiatives authorized by the budget act, 2008 HB 406. Commissioner Thompson detailed some of the mandates as: increasing educational good time from 60 to 90 days, substance abuse program good time completion from 60 to 90 days, meritorious good time credit from 5 to 7 days, and a new 7 day credit for exceptional acts; increasing the time which a prisoner can be released on home incarceration prior to scheduled release from 90 to 180 days; decreasing the amount of time prior to parole eligibility for nonviolent, nonsexual Class D felons from 20% to 15% of time served or 2 months whichever is greater, granting prison time credit for a person released on parole who is subsequently returned for a minor violation not a new offense for time spent on release prior to reincarceration; granting release to a prisoner who is on parole upon minimum expiration of sentence; and provisions in 2008 HB 683 authorizing the use enhanced global positioning system monitoring devices for prisoners released on home incarceration. Ms. Thompson indicated that 896 inmates had been released and that the projected cost savings will be $500,114 in FY 08, $7,260, 254 in FY 09, and $2,708, 789 in FY 10. Ms. Thompson indicated that since the changes made in the budget are effective only for the period the budget is in effect that after 2010 additional legislation would be needed to continue the programs. Representative Derrick Graham asked if the department had adequate drug counselors and a follow-up program for prisoners who have been released to ensure that they do not relapse from drug treatment after release to which Commissioner Thompson replied, yes. Ms. Thompson also indicated that when a prisoner is to be released early under HB 106 that the VINE victim notification system is utilized to notify victims who have requested notification of the pending release and that public officials are also released. Ms. Thompson indicated that the Department of Corrections website now details persons released from prison on the previous day, their offenses, and the reason for their release. Representative Robin Webb complimented Secretary Brown on his efforts to reduce costs and implement the General Assembly’s legislation and indicated that public safety is a primary concern both of the Justice and Public Safety Cabinet and the General Assembly.
Senator Stivers indicated that he favored legislation which was introduced in 2008 but which did not pass to move the date that the state pays for prisoners in the county jail from the date of sentencing to the date on which the person pleads guilty, or is found guilty which would save the counties the costs of incarceration for 30 to 45 days but that this cost would now have to be borne by the state.
The meeting was adjourned at 12 noon.