Call to Order and Roll Call
The 4th meeting of the Interim Joint Committee on Judiciary was held on Friday, September 7, 2012, at 10:00 AM, at the Department of Criminal Justice Training, Richmond, Kentucky. Senator Tom Jensen, Chair, called the meeting to order, the secretary called the roll, and a quorum was present.
Present were:
Members: Senator Tom Jensen, Co-Chair; Senators Ray S. Jones II, John Schickel, Dan "Malano" Seum, and Robin L. Webb; Representatives Joseph M. Fischer, Kelly Flood, Sara Beth Gregory, Joni L. Jenkins, Thomas Kerr, Stan Lee, Mary Lou Marzian, Michael J. Nemes, Tom Riner, and Brent Yonts.
Guests: Commissioner John Bizzack, Department of Criminal Justice Training; Secretary J. Michael Brown, Justice and Public Safety Cabinet; Ed Monahan, Department of Public Advocacy; Ernie Lewis, Kentucky Association of Criminal Defense Lawyers; Chris Cohron, Warren County Commonwealth Attorney; Jackie Steele, Laurel/Knox County Commonwealth Attorney; Lynn Pryor, Christian County Commonwealth Attorney; Bill Patrick, Kentucky County Attorney’s Association; Mike O’Connell, Jefferson County Attorney; Commissioner Rodney Brewer and Morgain Sprague, General Counsel, Kentucky State Police; Jerry Wagner, Kentucky Sheriff’s Association; Les Russell, Kentucky State Fraternal Order of Police; Guy Howie, Hopkinsville Chief of Police; Mike Bischoff, Executive Director, Kentucky Association of Chiefs of Police; David Leightty, Priddy, Cutler, Miller and Meade; J.D. Chaney, Kentucky League of Cities; Shellie Hampton, Kentucky Association of Counties; Bert May, Dinsmore; Berl Perdue, Jr., and Bill Burch, Fraternal Order of Police; Bob Stokes, Attorney General’s Office; Gerald Ross, Department of Criminal Justice Training; Jan Gould, Kentucky Retail Federation; and Bill Patterson and Charles Horton, Jefferson County Attorney’s Office.
LRC Staff: Norman Lawson, Jon Grate, Joanna Decker, Ray DeBolt, Shane Orr, and Rebecca Crawley.
The minutes of the July 6 and August 3, 2012 meetings were approved without objection.
Senator Jensen announced that Co-Chair Representative John Tilley was recently appointed by Governor Beshear to represent Kentucky at the Service Members, Veterans and Families Policy Academy and was attending a meeting in Washington, D.C., relating to veteran’s substance abuse and mental health issues.
Senator Jared Carpenter and Representative Rita Smart welcomed the committee to Richmond, Eastern Kentucky University, and the Department of Criminal Justice Training.
Secretary J. Michael Brown, Justice and Public Safety Cabinet, welcomed the committee to the Department of Criminal Justice Training and introduced Commissioner John Bizzack. Commissioner Bizzack presented a video on the Department of Criminal Justice Training (DOCJT), the first nationally accredited police training institute in the United States. DOCJT provides basic training for local police, sheriffs, and other law enforcement personnel, and annual certification training for peace officers, training approximately 12,000 people annually. Senator John Schickel said he graduated from DOCJT in 1976 as a member of the law enforcement community prior to being elected to the State Senate. He commended long-time instructor Paul Cleveland and said he still uses things he learned from him years ago. He and Senator Jensen complimented the department on the quality of training provided to the law enforcement community across the state. Representative Riner said his son is also a graduate of DOCJT.
Defense Bar’s Concerns
Ernie Lewis, Kentucky Association of Criminal Defense Lawyers (KACDL) said the mission of KACDL is to ensure fairness and justice for all citizens, while protecting public safety. KACDL supports implementation of 2011 House Bill 463 but several issues need further review, including inconsistent use of the pretrial release assessment by judges, denial of bail credits without specific justification, lack of a clear and convincing evidence standard for pretrial release, inconsistent application of deferred prosecution, presumptive probation, and graduated sanctions by the judicial community, and inconsistencies in issuing citation only misdemeanors by some law enforcement agencies. KACDL’s recommendations include the need to reclassify Kentucky’s many misdemeanor offenses by adjusting penalties and converting some to fine-only offenses, reforming the persistent felony offender and violent offender laws, clarifying parole restrictions, considering converting to a determinate sentencing system, implementing the American Bar Association recommendations on the death penalty, restoring the Criminal Justice Council to the 1998 version, developing a significant system for felony expungement and restoration of civil rights, and rewriting the Kentucky penal code.
Ed Monahan, Public Advocate, Department of Public Advocacy (DPA), made recommendations for improving the criminal justice system in Kentucky, including a presumption of parole for eligible low-risk offenders, expanding DPA’s social worker program to assist courts in addressing the needs of offenders, creating a new classification for gross misdemeanors that would fall between felonies and misdemeanors, reclassifying minor offenses to violations or civil infractions, establishing a legal standard requiring clear and convincing evidence for pretrial release decisions, reforming the persistent felony offender and violent offender statutes to make sure the harshest punishments are used to protect public safety, amending the juvenile code to protect Kentucky’s youthful offenders, expanding judicial discretion on expungement of convictions, expanding post-conviction DNA testing beyond capital cases, and implementing the ABA Death Penalty Assessment Team recommendations.
Prosecutor’s Concerns
Chris Cohron, Warren County Commonwealth's Attorney, noted the recent passing of Martin Scott, a highly respected member of the prosecutorial community, and expressed his deepest sympathy. Mr. Cohron said prosecutors are still assessing implementation of House Bill 463. He recommended creation of a new classification of felony offenses with fifty percent parole eligibility, and elimination of credit for pretrial incarceration. He said it is probably time for Kentucky to consider switching from the current indeterminate sentencing program to a determinate sentencing program, and abolishing the Parole Board. Virginia recently made this change and it has been successful. He said it is very difficult to tell victims how long a person will serve under the current law, because of the many credits which can be applied to a sentence. Inmates are the only ones who can accurately determine their serve out date, which is unfair to victims of crime. Pretrial risk assessments do not always consider the nature of the offense or victim impact when setting the conditions of bail or pretrial release.
Jackie Steele, Laurel/Knox County Commonwealth's Attorney, recommended the statutes relating to aggregate drug sales under House Bill 463 not be limited to repeat sales of the same drug. Drug dealers sell a variety of drugs, and he recommended that law enforcement be able to aggregate different types of drugs over 90 days, and not be limited to the same exact drug for aggregate purposes. He said prosecutors are working on draft language for the change.
Lynn Pryor, Christian County Commonwealth's Attorney, discussed the increasing problem of gangs and gang related activities in Kentucky and recommended passage of criminal gang legislation which would permit prosecutors to tell juries a crime was gang related, establishing a uniform tracking system for gang members and gang activity for law enforcement, enhancing penalties for gang related crimes, forfeiture of gang property, and making gang recruitment a felony.
Bill Patrick, Kentucky County Attorney’s Association, and Mike O’Connell, Jefferson County Attorney, discussed the current statutes on misdemeanor expungement. Mr. O’Connell suggested clarifying the language on second and subsequent offenses, and specifying which offenses should be allowed to defeat an expungement. He said his organization is working with the Kentucky State Police and others to develop a proposal to address this concern.
Mr. O'Connell discussed the confidentiality of juvenile court proceedings. There may be a need to open certain types of juvenile court proceedings for felony public offense cases, but not misdemeanor public offenses. He said 39 states have open juvenile proceedings.
In response to a question from Senator Seum about expungement of felony records, Mr. O’Connell said felonies cannot be expunged and only certain misdemeanor records can be expunged under current law. Senator Webb suggested prosecutors, police, and defense attorneys work on a unified draft of legislation.
Law Enforcement Concerns
Commissioner Rodney Brewer and Morgain Sprague, General Counsel, Department of Kentucky State Police (KSP), suggested the misdemeanor expungement process could be improved by implementing a certificate of eligibility process for submission to the court, vetted by KSP and the Administrative Office of the Courts (AOC), prior to granting an expungement so uniform standards would apply. Commissioner Brewer said KSP processes approximately 12,000 records checks for expungement annually. Senator Webb said there needs to be an appeal process for applicants if a request for expungement is denied by KSP or AOC, so they have an opportunity to challenge incorrect information. Other KSP recommendations include clarifying circumstances for vacating judgments and expungement when new evidence exonerates the defendant, changing the laws on criminal background checks for appointees to boards and commissions to allow periodic checks following their initial appointment, and amending the driving under the influence statutes to specify that refusal to sign a hospital consent form for blood tests is the same as refusal to take the test with the same penalties. Another recommendation is requiring pawn shops to electronically report purchases to law enforcement, and requiring them to maintain paper records of their transactions. Commissioner Brewer said there is an excellent nationwide record management system called LEADSOnline which helps law enforcement track, identify and recover stolen property. The computer program is available to pawn shop owners free of charge. Senator Webb said recyclers and scrap metal buyers need to be held accountable for the items they purchase. She said her area has seen an increasing number of storm grates being stolen and sold to scrap yards, in addition to copper thefts. Commissioner Brewer said the LEADSOnline program has a component which would allow recyclers to report and track their transactions.
Jerry Wagner, Kentucky Sheriff’s Association, agreed with Senator Webb about the need for more accountability for recyclers and scrap yard owners. The LEADSOnline program is very good, and the association supports efforts to expand the system.
Ms. Sprague recommended that administrative subpoena powers now limited to the Attorney General be expanded to the Commissioner of Kentucky State Police, which would allow their crimes against children unit to subpoena computer records to determine internet signal locations. She recommended prohibiting sex offenders from photographing children without the informed written consent of the parent, amending the child solicitation statutes to include internet chatting without actual traveling in furtherance of the offense, and permitting forfeiture of real property on conviction for manufacturing or producing child pornography.
Guy Howie, Hopkinsville Chief of Police, agreed with Commissioner Brewer about the LEADSOnline computer program and said it has made recovery of stolen property easier for law enforcement. Gangs and gang related activity are an increasing problem across Kentucky, and are no longer limited to urban areas. He concurred with the recommendations suggested by Christian County Commonwealth's Attorney Lynn Pryor. Senator Jensen said it appears that many people become gang members while in prison. Chief Howie agreed and said more programs are needed to discourage young people from joining gangs. Mike Bischoff, Kentucky Association of Chiefs of Police, said his organization will be meeting the first week of October to discuss legislative matters and make recommendations.
Police Officers Bill of Rights
Les Russell, Kentucky Fraternal Order of Police (FOP), and David Leightty, an attorney representing police officers for the FOP, discussed KRS 15.520, known as the Police Officer Bill of Rights. The statute sets forth procedures for handling complaints against police officers, requires 24-hour notice, and permits the presence of an attorney if requested by the officer. The FOP believes the statute applies to all complaints, whether citizen generated or department generated. However, recent Court of Appeals decisions have ruled the statute applies only to citizen complaints. Mr. Leightty said most complaints against police officers are departmentally generated, and the FOP disagrees with the court’s decisions. One of the cases has been accepted for appeal by the Kentucky Supreme Court but has not been heard. A 2012 Regular Session legislative proposal to address these concerns did not pass when the parties could not reach an agreement.
J.D. Chaney, Kentucky League of Cities, and Shellie Hampton, Kentucky Association of Counties, said the right of government to control and discipline its employees is set forth in other statutes and they feel it should also apply to police officers. They agreed to work with the FOP and other parties to reach an agreement for consideration by the 2013 Regular Session of the General Assembly. Senator Jensen urged all parties to reach an agreement before the next session.
Senator Webb said she agreed with Judge Caperton’s dissent in one of the cases, which said KRS 15.520 clearly applies to all complaints, not just citizen complaints.
Chief Howie said police officer disciplinary actions do not always merit the presence of an attorney. Many are minor violations such as an officer caught sleeping in his patrol car, maybe the officer is having trouble at home, or just needs a schedule adjustment because he reports late for duty. Mr. Bischoff agreed and said requiring an attorney to be present and requiring 24-hour notice to the officer limits the police department’s ability to deal with minor problems efficiently. He said his organization wants to be part of the discussion to reach a compromise.
The meeting adjourned at 12:50 p.m.