Call to Order and Roll Call
The 2nd meeting of the Interim Joint Committee on Judiciary was held on Wednesday, July 14, 2010, at<MeetTime> 10:00 AM, in Room 171 of the Capitol Annex. Senator Tom Jensen, Chair, called the meeting to order, and the secretary called the roll. A quorum was present and the minutes of the June 9, 2010 meeting were approved without objection.
Present were:
Members: Senator Tom Jensen, Co-Chair; Representative John Tilley, Co-Chair; Senators Perry B. Clark, Carroll Gibson, Ray S. Jones II, Gerald A. Neal, Mike Reynolds, Jerry P. Rhoads, Dan "Malano" Seum, Katie Kratz Stine, and Jack Westwood; Representatives Jesse Crenshaw, Kelly Flood, Jeff Hoover, Thomas Kerr, Stan Lee, Mary Lou Marzian, Darryl T. Owens, Tom Riner, and Brent Yonts.
Guests: Therese Richerson, Kentucky Highway Safety; Jennifer Hans and Bob Stokes, Office of the Attorney General; Michael Meeks, Frankfort Lobbyist; Kelly Davis, Nekton Technologies; Bill Patrick, Kentucky County Attorneys Association; Angela Criswell, MADD; and Bill Doll, Kentucky Medical Association.
LRC Staff: Norman Lawson, Jon Grate, Ray DeBolt, Joanna Decker, Kyle Moon, and Rebecca Crawley.
Global Positioning Monitoring of Offenders-The Tennessee Experience
The first speakers were Director of Field Services Gary Tullock and GPS Program Director Susan Shettlesworth of the Tennessee Board of Probation and Parole, who discussed implementation of the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act enacted in July 2004 which authorized sex offender monitoring using global positioning systems on a pilot basis and which required a study and empirical analysis. Based on the legislative mandate, the Board of Probation and Parole set the long-range goals of the GPS monitoring program as crime prevention, crime detection, condition monitoring, behavior modification, and intermediate sanction. Originally contracted to a vendor, the Board then decided to establish a central monitoring system known as the GO Center using existing state employees to monitor offenders, determine when violations have occurred, and provide for immediate intervention when needed. The pilot group monitored 493 offenders from rural, suburban and urban areas in 11 counties. Lessons learned included existing sex offenders who were on parole considered GPS monitoring as an additional punishment, but new parolees were more accepting of the program; some offenders moved from monitoring counties to non-monitoring counties to avoid GPS monitoring; there were significant impacts on officers including morale problems caused by unpredictable work schedules, increased overtime, quality of life issues (such as having to leave a family event to resolve a GPS alert) and increased staff turnover; GPS monitoring requires more staff resources because knowing about a violation and doing nothing about it is unacceptable; determining a sustainable caseload level for officers was important; developing an on-call officer schedule for after hours alert response was critical, and turnover is to be anticipated.
The 2004-2005 funding was a nonrecurring FY $2.5 million appropriation followed by a $1.235 million increase in FY 2005-2006. Lessons learned included that GPS parole supervision costs more than traditional parole supervision but you know more about what the parolee is doing and increased officer overtime should be anticipated. GPS parole officers need to be on call 24 hours a day 7 days a week.
The current Tennessee GPS monitoring contract is $5.60/day per person which has decreased from the previous $9.00/day per person. The program includes some sex offenders, high risk offenders, victim sensitive cases, sanctioned offenders and gang members. The supervision includes specially trained, dedicated officers working non-traditional hours, risk-based use of GPS monitoring, an intense level of contact with offenders, a high degree of interaction with treatment providers and law enforcement, and close interaction with an offender’s family, friends, and employers. GPS monitoring is used for high risk serious offenders, domestic violence, stalking, behavior modification, as an intermediate sanction for probation and parole violators, and as a component of a comprehensive case plan for the offender.
Passive monitoring requires the offender to download GPS information to a sending device at specified times. Active monitoring sends information by satellite to the monitoring entity and then to the GO Center where alerts are sorted, and determinations are made on whether action is required, because not all alerts are a sign of offender misconduct. All stakeholders need to be informed about types of alerts and what action may be necessary. Technical alerts include low battery warnings, power loss, and phone connect landline failure. Tamper alerts include battery tampering, tracking device housing tamper, and strap tamper. Violation alerts include charger violation, inclusion and exclusion zone violation, cuff leave violation, equipment did not call violation, and GPS blocking violation. Actions taken for serious violations include reporting probationers to the courts, reporting parolees to Board of Probation and Parole, and reporting new offenses to District Attorneys
Benefits of GPS monitoring include monitoring offender daily activities, establishing and monitoring of inclusion and exclusion zones, identifying patterns of offender activity, verifying offender location, deterring behavior, identifying violation of supervision standards, and using GPS data as evidence. An example of suspicious pattern of activity was an offender going to a certain location every day (which was not a violation itself) but when officers checked they found the location was a liquor store and the offender who had been ordered not to possess alcohol was apprehended purchasing it. In other cases GPS was used to identify speeding by the offender.
Questions from legislators involved the time from alert to officer intervention and Mr. Tullock said this is highly variable because of distances officers have to travel or whether local law enforcement can intervene more swiftly, and liability issues if there is no response or a delayed response and someone is injured or killed. Another question related to the total cost per person per day of GPS monitoring, including the GO Center and officer intervention. Following the meeting Mr. Tullock provided information that the cost was $26/day per person. Mr. Tullock said out of 946 GPS monitored offenders, 98 had their parole revoked (28 of the violations being revealed by GPS) and the other violations were discovered through other means.
Ignition Interlock Devices
Robyn Robertson of the Traffic Injury Research Foundation from Canada spoke on the use of ignition interlocks for persons convicted of driving under the influence. Ms. Robertson said ignition interlock devices are designed to protect the public by incapacitating drunk drivers. She said interlocks are not designed to change drinking behavior, and that changes in drinking behavior must be a combined use of the interlock with an appropriate treatment intervention. Evaluation of ignition interlock use shows a 35% to 90% reduction in recidivism, with a recent average of 64%. Recidivism by non-interlock users is higher than for interlock users. Recommended minimum interlock use time is six months and persistent offenders need to be required to retain the interlock device to ensure they cannot drive while drunk. Ms. Robertson said recidivism rates increase when the devices are removed, but the overall net benefit of the device still remains. Cost of device use decreases as the number of users in a given area increases.
The interlock device is designed to prevent a person from starting the vehicle if a preset breath alcohol concentration is exceeded, normally 0.02. The devices also provide for “running retests” while the vehicle is being operated. The device signals the driver they have a specified period of time to pull over and retest or the vehicle’s lights begin to flash or the horn sounds. Older interlock devices with semiconductor sensors are less effective and may be affected by altitude and other factors, but newer devices using electrochemical sensors (fuel cells) are more effective and are more alcohol specific. Some jurisdictions permit or require courts to order interlock use while other jurisdictions permit the licensing agency to order interlock use.
Device installation costs are approximately $70, with a $70 per month monitoring fee. There are problems with indigent drivers who cannot afford to pay the fees and jurisdictions have defined indigency in different manners. Some states have attempted to create funds for indigent drivers by various means including surcharges. Typically, legislation provides sanctions for driving a non-interlocked vehicle, tampering with or circumventing the ignition interlock device, another person providing a breath sample, requesting another person to provide a breath sample, and providing a non-interlock vehicle to a driver required to use an interlock device
Several legislators questioned the availability of interlock devices and maintenance in rural areas, accountability of vendors, chain of custody questions about downloaded violation information, whether an offender could kick start the vehicle to avoid blowing into the device (Ms. Robertson indicated this is recorded as a violation by the device), an offender purchasing and driving a non-interlock equipped vehicle, and whether the state is potentially giving a monopoly to a vendor of the ignition interlock service. Others praised legislation to expand the use of ignition interlock devices in Kentucky which has been introduced in previous sessions but has not passed.
Ed Monahan, Public Advocate, addressed the ignition interlock device issue on behalf of the Kentucky Department of Public Advocacy. He said there are 39,000 DUI arrests in Kentucky each year and DPA defends 20,000 of them because they are indigent clients. Mr. Monahan said if ignition interlock devices become mandatory, many of his agency’s clients will not be able to drive and will possibly lose their jobs and their ability to support their families. He recommended any legislation passed in Kentucky provide fee waivers, lower cost options, and assistance for the indigent. He noted eleven states have passed mandatory interlock legislation and eight of those waive costs for indigent defendants.
Mr. Monahan also observed that interlock devices have limitations by measuring only breath alcohol concentration and that limiting starting a vehicle at 0.02 is at odds with the presumption that a person is not under the influence of alcohol until they reach 0.05 alcohol concentration. Failure of the interlock device to permit a person to start a vehicle, even for a false positive reading, may mean a person loses their job because they are late, or that they could have a health problem requiring immediate transportation and there are no safeguards to prevent a complete loss of transportation. “Designated blowers” will evade the system and any person who is high on drugs but not drunk can operate an interlock equipped vehicle. Interlock devices are already permitted by law but are used in less than 1% of the cases where they are authorized. Recent proposals for mandatory use of interlock devices would apply to thousands of convictions per year. Mr. Monahan also provided information on a DUI case in London, Kentucky where an ignition interlock device was activated by the driver having eaten a bologna sandwich and the case was dismissed.
Department of Public Advocacy Social Worker Program
Mr. Monahan also made a presentation on alternative sentencing social workers who have been utilized by the Department of Public Advocacy for several years. Features of the program include use of the attorney-client privilege to increase candid client participation; improved coordination and cooperation among criminal justice agencies and treatment providers; the large number of criminal defendants represented in the program is well suited to a collaborative effort with prosecutors and probation/parole officers to address alcohol and substance abuse by offenders; and early intervention provides a detailed, evidence-based sentencing and release plan for the courts to consider which increases the likelihood of pretrial release or probation with an individualized sentencing plan.
Alternative sentencing social workers provide judges with relevant mitigating information about a defendant’s physical and mental health, social history, resources available in the community, and identify positive alternatives to incarceration. The program saves on incarceration costs by using community-based treatment and has shown an 18% reduction in recidivism after six months while increasing the client’s economic self-sufficiency through work, paying taxes, paying child support, and paying restitution and court costs.
Mr. Monahan explained the role of the DPA social worker prior to sentencing, at sentencing, and post-sentencing. Savings of the program included 10,000 days of incarceration for each social worker; for each dollar invested in the social worker program, the state saved $3.25 of incarceration costs, for a net savings of $2.25. The projected savings for state-wide implementation of the program is estimated to be $3.1 million per year. Mr. Monahan urged the committee to support funding to expand the DPA social worker program statewide.
Mr. Van Ingram, Director of the Office of Drug Control Policy, discussed his career in law enforcement and noted the failure of the criminal justice system to provide meaningful treatment for persons with alcohol and substance abuse or other behavioral problems while incarcerated. Mr. Ingram strongly supported the DPA social worker program and the department’s request to expand the program statewide. He noted that 30 DPA social workers cost $2 million but save $30 million, which then can be reinvested in more social workers and more community-based treatment programs which are more effective.
The meeting adjourned at 12:30 p.m.