Call to Order and Roll Call
The 3rd meeting of the Interim Joint Committee on Judiciary was held on Friday, August 5, 2011, 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.
Present were:
Members: Senator Tom Jensen, Co-Chair; Representative John Tilley, Co-Chair; Senators Perry B. Clark, Carroll Gibson, Ray S. Jones II, John Schickel, Dan "Malano" Seum, Robert Stivers II, Robin L. Webb, and Jack Westwood; Representatives Sara Beth Gregory, Joni L. Jenkins, Thomas Kerr, Stan Lee, Mary Lou Marzian, Mike Nemes, Tom Riner, and Brent Yonts.
Guests: Melissa Platt, M.D., Ryan Stanton, M.D., Kentucky Chapter, American College of Emergency Physicians; Cynthia Cheek and Dave Rednour, Norton Healthcare; Tom Szurlinski, Florence Police Department and Kentucky Association of Chiefs of Police; Mike Daly, Fort Thomas Police Department; Tony Kramer, Edgewood Police Department and Northern Kentucky Police Chiefs Association; Alan George and Bill Patrick, Kentucky County Attorney’s Association; Linda Robinson, St. Elizabeth Health Care; John Cooper, Kentucky Medical Association; Sarah Nicholson, Kentucky Hospital Association; Jackie Steele, Commonwealth Attorney’s Association; Marylee Underwood, Kentucky Association of Sexual Assault Programs; Marilyn Swinford, St. Joseph Healthcare; Deb Bryant, Saint Joseph East; and Mary Rose Bauer, Kentucky Emergency Nurses Association.
LRC Staff: Norman Lawson Jr., Jon Grate, Ray Debolt, Jr., and Rebecca Crawley.
The minutes of the July 1, 2011 meeting were approved by voice vote.
Discussion of 2011 Senate Bill 22 relating to crimes and punishments
The first speaker was Senator John Schickel who discussed Senate Bill 22, introduced during the 2011 Regular Session. This measure would amend KRS 508.025 to include physicians, nurses, and other emergency health care workers, and make it a Class D felony to assault one of the named persons in the emergency room of a hospital. Senator Schickel said twelve other states have included emergency health care workers in their workplace violence statutes, and they were unintentionally excluded in the Kentucky legislation. He noted emergency room personnel are frequently the victims of assault while performing their duties and still have a duty to continue to render care to the person who assaulted them. He said emergency medical technicians, bus drivers and teachers are protected under workplace violence legislation and emergency health care workers deserve the same protection. He felt the bill would provide a loud and clear message that such conduct will not be tolerated.
Ms. Linda Robinson, RN, St. Elizabeth Health Care, indicated the number of emergency room assaults is increasing, many patients are on drugs or are seeking drugs and are aggressive and combative, and eight percent of emergency room personnel are assaulted with 15 percent receiving physical injury. Some frequent emergency room patients have psychiatric problems and many drug and alcohol programs have been the victims of budget cuts, so these patients have no other place to seek assistance and necessary medications to address their problems. She complained that police cannot arrest the perpetrators because fourth degree assault is a misdemeanor and the police must view the offense before an arrest can be made. Elevating this to a felony would get violent people off the streets and noted many violent patients come to the emergency room repeatedly for care or to get medications. In response to a question from Senator Jensen, Ms. Robinson said security in hospitals is based on square footage, so smaller facilities may not have any on-site security.
Melissa Platt, M.D., President, Kentucky Chapter, American College of Emergency Physicians, agreed that emergency room violence is increasing, drugs and alcohol are frequently involved, and many are prisoners who are being brought to the emergency room by police officers for treatment. Many emergency room patients are mentally fragile, victims of domestic violence, or under the influence of drugs or alcohol. It is not uncommon for a victim of domestic violence to be followed to the emergency room by their abuser, creating a very dangerous work environment for emergency room personnel. The University of Kentucky Hospital has a full security department but it does not prevent violence from taking place in the emergency room. Representative Jenkins felt hospital social workers, nurse assistants, and others should be granted the same protection as doctors and nurses. Senator Gibson said protection should be extended to admissions personnel as well.
Mary Rose Bauer, a University of Kentucky Hospital emergency room nurse speaking on behalf of the Emergency Nurses Association, said this legislation was one of the top three priorities for the association, along with improved incident reporting. Emergency room violence endangers everyone, not only physicians and nurses, but other patients and visitors as well. Senator Jensen asked the speakers if they thought making this offense a felony would be a deterrent to violence in the emergency room. Senator Schickel said this legislation would have a practical application by giving police the authority to arrest on probable cause without actually witnessing the violence. He welcomed suggestions to improve the legislation which he intends to introduce in the 2012 Regular Session. Senator Jones said his wife is a physician, and he did not believe elevating the offense to a felony would fix the problem and could promote a false sense of security. Senator Seum commented on the lack of security at hospitals and noted most hospitals do not have metal detectors to screen for weapons. He suggested mandating that hospitals provide security to protect its employees and Senator Schickel agreed.
Representative Tilley was said not all emergency room violence cases are reported. Ms. Robinson agreed because the assaulted person must go to the county attorney’s office to file a report and many times nothing is done, which discourages reporting. Representative Tilley suggested hospitals should increase emergency room security where violence is most likely to happen to protect their employees.
Tom Szurlinski, Florence Police Department, indicated he was a part-time security officer at two hospitals which are not located in his home county. He did not have misdemeanor arrest power outside the county in which he was a peace officer and wanted the committee to extend his peace officer powers to other counties. He had witnessed the fear in emergency room personnel who must still provide care to the person who assaulted them. Many times the perpetrator follows the victim to the place they are seeking treatment, resulting in danger to other patients and family members in the emergency room area. In response to a question from Senator Jensen, Mr. Szurlinski said he did not think serving a year in jail would be a deterrent because most times they do not actually stay in jail for that amount of time. Senator Jensen was concerned that making assault on emergency health care workers a felony would have unintended consequences because felons are prohibited from holding many jobs and felony records are never expunged in Kentucky. He was also concerned about the impact on counties who must house these persons awaiting conviction.
Dave Rednouer, Norton Health Care, indicated there were 225 assaults in 2009, 285 assaults in 2010, and it is anticipated there will be over 300 this year if the trend continues. Cynthia Cheek, Training Officer for Norton Hospitals, described several situations where her experience as a nonviolent negotiation instructor did not work with violent and assaultive patients. Ms. Cheek cited the instance of a woman who pled guilty to felony assault of a hospital worker and was sentenced to two years probation and told not to go back to that hospital, and another incident where a patient she was attempting to calm turned and hit her in the mouth.
Senator Webb said employers have an obligation to protect their employees as a cost of doing business but she was concerned about mandating private entities to provide security personnel. Senator Schickel said the legislation is intended to protect emergency room personnel and private entities need to protect their employees the same as public and quasi-public entities. In response to a request from Senator Webb, Sarah Nicholson, Kentucky Hospital Association, agreed to provide any KHA hospital security suggestions to Senator Schickel. Ms. Nicholson suggested a possible solution would be to make hospital security law enforcement officers with arrest powers. Representative Riner asked if there was a way to track repeat violent patients and was told this might be a HIPAA confidentiality violation.
Cost-Efficient Adjustments of Kentucky’s Persistent Felony Offender and Violent Offender Laws
Ed Monahan, Public Advocate, was accompanied by Damon Preston, Deputy Public Advocate. Mr. Monahan reported Kentucky has 7,792 persistent felony offenders and violent offenders in prison at a cost of $169,193,925 per year. Mr. Monahan said he recognized that Kentucky law should protect citizens from violent offenders and those who persistently commit felonies, but felt the present law is too broad, provides disproportionally long sentences for relatively minor felony offenses, and said there are 1,441 inmates serving an average sentence of 11 years for an underlying offense which was a Class D felony with a maximum sentence of five years.
Mr. Monahan’s suggestions for amending the persistent felony offender statute included eliminating PFO enhancements for nonviolent felonies, eliminating first and second degree PFO, leaving PFO status only for those with two prior felonies without any substantial break in criminal activity, repealing the 10-year parole eligibility requirement for PFO in the first degree, and prohibiting all double enhancements by eliminating PFO for all offenses already enhanced by a prior conviction.
Suggestions for amending the violent offender statute included limiting it to murder, first-degree rape, first-degree sodomy, first-degree robbery with a firearm, first-degree burglary with a firearm, and first-degree assault, and restricting the 85 percent service of sentence requirement prior to parole eligibility to intentional conduct resulting in death, serious physical injury, or substantial sexual contact, while returning to the 50 percent parole eligibility for violent Class B felonies. Mr. Monahan said federal funding for the 85 percent service of sentence requirement expired years ago, yet we have retained the requirement at great cost to the state.
Mr. Monahan said recidivism drops significantly with age, citing statistics which show 54 percent recidivism for age 21-25 years, 40 percent for age 26-30 years, 35 percent for age 31-35 years, 31 percent for age 36-40 years, 27 percent for age 41-45 years, 24 percent for age 46-50 years, 18 percent age 51-60 years, and 9 percent for age over 60 years. Some prosecutors threaten to use the PFO statute, even for minor felonies, to get defendants to plead guilty for higher sentences when they might have been found not guilty if they had chosen to go to trial. Many times defendants are afraid to gamble on a trial and thus plead guilty. Mr. Monahan also recommended that nonsupport and flagrant nonsupport be decriminalized because while the defendant is in jail or prison they cannot work and pay child support, and when they get out as convicted felons, they cannot get a job, cannot pay, and then go back to prison as persistent felony offenders. Senator Gibson was concerned about a person who owes $5,000 in back child support, is sent to prison at a cost of nearly $22,000 per year, and when they get out they are even further behind in their child support obligation. Mr. Monahan also urged the General Assembly to increase funding for the Department of Public Advocacy social worker program so nonviolent offenders and those in violation of child support orders can keep working, get necessary counseling and training, and pay child support.
Senator Jensen called the attention of the members to a letter received from Mr. James Ritchey of Lawrenceburg, Kentucky on the subject of juvenile status offenders and other juvenile offenders and urged the committee members to read the letter.
The meeting adjourned at 12:10 p.m.