Call to Order and Roll Call
The 4th meeting of the Interim Joint Committee on Judiciary was held on Friday, November 1, 2013, at 10:00 AM, in Room 171 of the Capitol Annex. Senator Whitney Westerfield, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Whitney Westerfield, Co-Chair; Representative John Tilley, Co-Chair; Senators Perry B. Clark, Carroll Gibson, Sara Beth Gregory, Ray S. Jones II, Dan "Malano" Seum, Katie Stine, and Robin L. Webb; Representatives Johnny Bell, Robert Benvenuti III, Jesse Crenshaw, Joseph M. Fischer, Kelly Flood, Mary Lou Marzian, Darryl T. Owens, Ryan Quarles, Tom Riner, Ken Upchurch, and Brent Yonts.
Guests: Marty White, KASS; Sandra Williams
LRC Staff: Jon Grate, Matt Trebelhorn, Alice Lyon, Chandani Jones, Natalie Burikhanov, Dallas Hurley, and Nicole Straus.
The minutes of the June 7, September 6, and October 4, 2013 meetings were approved without objection.
Prosecutorial Bar Issues
Speaking for the prosecutorial bar, Christian County Attorney Mike Foster, Chris Cohron of the Kentucky Commonwealth Attorneys Association, Mitchel Denham of the Office of the Attorney General, and Boone County Attorney Robert Neace testified about concerns of Kentucky’s prosecutors.
Mike Foster discussed six prosecutorial issues concerning juvenile court and law.
1. A defendant’s capacity. If a juvenile lacks capacity, the case is dismissed and no further action is taken. Mr. Foster argued that the state has an obligation to act in the best interest of the child, which would include helping the child transition towards obtaining competency.
2. Risk assessments. By including earlier assessments after adjudication, the state would be able to more immediately provide effective services or adjust a juvenile’s risk level.
3. Parent involvement in treatment. The prosecutorial bar hears most frequently that judges should be able to order parents to participate in counseling. Mr. Foster stated that treatment is more effective if schools and families are involved with children.
4. Juvenile court jurisdiction. The state should examine whether status offenses and mandatory treatment orders should be heard in juvenile court.
5. Complicated internal structure. The juvenile support system needs to be restricted to save money, which is the biggest issue priority. Mr. Foster suggested combining agencies like the Department of Juvenile Justice (DJJ) and Department for Community Based Services (DCBS) as a way to cut costs and increase efficiency.
6. DUI. The prosecutorial bar feels that the current driving under the influence system is flawed due to the refusal law for breathalyzer testing. According to Mr. Foster, there should be greater penalties for refusals in order to make prosecution more successful.
Representative Yonts inquired of Mr. Foster’s opinion as to the legality of status offenses, to which Mr. Foster replied that he felt they were unconstitutional. Representative Yonts asked about changing the blood alcohol content threshold to .05, and Mr. Foster said that the county attorneys believe the current laws are sufficient for prosecuting impaired drivers, but that they would support appropriate judicial adjustments to prevent impaired drivers being on the road.
Chris Cohron presented the Commonwealth Attorneys’ most pressing prosecutorial issues.
1. DNA sampling. In regards to DNA sampling upon arrest, the association believes that it has the possibility of solving and preventing crimes, and making prosecution more effective. Safeguards can be put in place to protect from any negative consequences of DNA sampling, and it has been ruled constitutional by the United States Supreme Court in Maryland v. King.
2. Synthetic drugs and heroin. Even though the recent synthetic drug bill reduced overall use, synthetic drugs are still being targeted toward juveniles and ex-offenders. It is often called “probation weed” because users believe it will not be caught or punished in drug court. Heroin use is also increasing, as prescription opioids become less available.
3. “One-size-fits-none” system. The penalty structure allows equal penalties for unequal offenses, which ultimately affects high recidivism rates in the state.
4. Budget. Because the procedural process is evolving in court, it requires financial investment to maintain prosecutorial effectiveness.
5. DUI. Mr. Cohron stated that the five-year DUI look-back period should be longer to address the issue of dangerous repeat offenders.
6. Competency. Mr. Cohron stated that incompetency is a recurring issue. If a person is ruled incompetent to stand trial but not incompetent enough to be committed, the person re-enters the communities and is likely to reoffend.
Mitchel Denham presented the Office of the Attorney General’s (AG) main prosecutorial issue: opioid abuse and diversion. Previous legislation reduced prescription pill deaths and abuse, but this decrease was being countered by growing heroin use. Mr. Denham mentioned three ways in which opioid abuse can be better addressed. The first is a deterrent-effect, achieved by prosecuting a drug trafficker for a heroin user’s death. The second tool is public awareness, facilitated through legislation, existing agencies, public service announcements, and reward systems like scholarships. Finally, the AG believes in the need for increased treatment availability. This includes proactive treatment services, such as encouraging Medicaid to cover substance abuse treatment. These services also save money, as exemplified by Recovery Kentucky centers, which return $3.50 for every dollar invested. Treatment availability also includes a focus on prevention, which would reduce fiscal and societal costs.
As the AG is working with Senator Stine on heroin use legislation, Senator Stine emphasized a need for a three-pronged approach to abuse, including treatment, education, and intervention. Chairman Tilley observed that heroin abuse is market-driven, with price being a key factor in its availability and use. He commented that recent legislative efforts have begun to have positive impacts on the state’s recidivism rate.
Defense Bar Issues
Speaking for the defense bar, Ernie Lewis of the Kentucky Association of Criminal Defense Lawyers (KACDL) and Ed Monahan of the Department of Public Advocacy (DPA) discussed issues faced by defense lawyers in Kentucky’s courts.
Ernie Lewis emphasized the need for the state to spend more wisely on the justice system. Kentucky has 20,000 people incarcerated at a cost of nearly $500 million per year. With these numbers increasing, it is an unsustainable model. Despite the high incarceration rate, the crime rate has remained stagnant since the 1970s. Mr. Lewis spoke about two specific recommendations from KACDL to help alleviate this financial and societal burden. The first was to reclassify nonviolent crimes to misdemeanors and to reclassify misdemeanors to violations. Not only would this change save significant resources, but it would also address inmate overcrowding. Secondly, KACDL advocates for felony expungement and the restoration of voting rights for convicted felons. Because Kentucky has such a high rate of incarceration, the state has a high number of disenfranchised voters. KACDL believes that this denies convicted felons their dignity and that it can have detrimental effects on communities. Mr. Lewis said that the state should pass a felony expungement law for nonviolent offenders who committed their crimes in the distant past and that the state should restore voting rights to nonviolent convicted felons through a constitutional amendment.
Mr. Lewis also discussed the KACDL position on heroin use legislation. While the organization recognizes that heroin abuse is a pressing problem in Kentucky, KACDL is against charging murder for selling heroin without proof of knowledge of possible death or contact with decedent. According to Mr. Lewis, the death would have to be assumed to be a “foreseeable event” caused by trafficking. Additionally, KACDL was wary of 2013 SB 6, which would have made trafficking cocaine, heroin, and methamphetamine above certain quantities, which they deemed too low, a Class B felony.
Ed Monahan presented nine ways to maintain public safety and reduce costs for counties and states for 2014. These solutions, addressing the defense bar issues, were split into three categories: saving counties money, saving state money, and saving money for both the state and counties.
Mr. Monahan presented two possible ways to save counties money.
1. Create a “clear and convincing” standard for pretrial release decisions for those that seem unlikely to repeat. Mr. Monahan suggested that the state write the goals of HB 462 related to pretrial release into law. As it stands, HB 463 has saved counties $40 million in jail costs, but the pretrial release rates are declining to below the pre-HB 463 level, as already evidenced by three-month data from this fiscal year.
2. Reclassify minor misdemeanors to violations. Mr. Monahan stated that this solution has been supported across party lines and by various agencies. This can be achieved by passing 2013 HB 395, which would reduce jail costs, reduce court times, and increase the General Fund revenue from fines.
Mr. Monahan also presented three ways to save the state money.
1. Create a “gross misdemeanor” classification for low-level felons. Under this classification, gross misdemeanors would include a penalty range from six months to two years, circuit court prosecution, the possibility to house state prisoners in county jail, a conviction that would not lead to felony penalties, automatic or presumptive probation for a two year period, and the possibility for expungement. Benefits of creating this classification would include reduction in prison population and assistance with reentry and reformation.
2. Presumed parole for all eligible low-risk offenders. Mr. Monahan stated that 2013 SB 82 supports a more expansive parole policy. Only 72.56 percent of low-risk inmates received parole from Fiscal Year 12-13, and as of September 2013, only 59.47 percent of low-risk inmates had received parole.
3. Amend violent offender and PFO statutes to ensure Kentucky’s most costly punishments are used to protect public safety. The broad applicability of these statutes catches too many people in an expensive net of prolonged incarceration.
Mr. Monahan suggested four ways that counties and the state can save money from new or amended legislation.
1. Create Class D felony expungement restoration of voting rights for ex-felons. Mr. Monahan commented that 2013 HB 47 and HB 70 would have allowed class D felony expungements and would make 94,645 Kentuckians eligible for expungement. Furthermore, because expungement would promote employment and reduce recidivism, it could provide additional funding to the General Fund and allow people to reenter the workforce. Mr. Monahan stated that with the possibility for employment, the probability of new arrests for offenders would decline and eventually become as low as that of the general population (4-8 years).
2. Limit capital prosecutions. Mr. Monahan claimed that there is a 60 percent error rate in capital prosecutions in Kentucky. However, by limiting capital prosecutions, the margin of error would decrease. He suggested reducing capital punishment sentencing options, statutorily authorizing a judge to eliminate death as a possible punishment when appropriate, and requiring timely, complete open file discovery.
3. Reform juvenile justice. Mr. Monahan suggested seven ways in which the juvenile justice system could be improved: replace status offenders with Child in Need Services model, no longer allow prosecution of a child ten years old or younger, using detention of a child as a last resort, increase opportunities for diversion, expand judicial discretion to allow case-specific and child-specific outcomes, define the role of school resource officers, and enhance protections for children and parents of children who are questioned.
4. Expand DPA alternative sentencing social worker program. Mr. Monahan stated that this was the DPA’s highest recommendation because it was less costly and a more beneficial response to recidivism rates. A University of Kentucky study found that for every dollar spent on the DPA alternative sentencing, the state saved $4.47 to $6.80.
Responding to a question from Senator Seum, Mr. Monahan stated that the figures measuring crime rate were compiled by the FBI and Kentucky State Police through a uniform method.
Indiana’s Expungement Experience
Indiana Representative Jud McMillin of House District 68 presented testimony of Indiana’s new comprehensive expungement law. Until last session, Indiana only had limited expungement statutes; now, it has some of the most expansive. Representative McMillin provided a brief overview of the law, which he supplemented with responses to questions from the committee. The law states that any arrest where there was not a conviction or incarceration can be expunged after a year. However, certain felonies are not eligible for expungement, such as sex offenses. There are two ways in which a felony can be expunged: lower-level felonies can be taken off the public record, while higher-level felonies remain but are marked as expunged.
Responding to a question from Chairman Westerfield, Representative McMillin acknowledged that expungement cannot protect from a felony record remaining as an electronic footprint, but the law does state that this information cannot be used to discriminate against the former felon in employment situations. In response to Chairman Westerfield, Representative McMillin explained that there were many groups who supported the bill, including the Indianapolis Chamber of Commerce, who felt that this bill helped combat unemployment. Following a question from Representative Benvenuti, Representative McMillin stated that the bill grants immunity from liability for businesses and organizations who hire an expunged felon. Responding to a question from Senator Seum, Representative McMillin explained that prosecutors have access to expunged felonies in the case of repeat offenders. Furthermore, if convicted again, the felon returns to their pre-expungement status.
Responding to a question from Senator Seum, Representative McMillin explained that applications for opportunities such as universities and jobs can only inquire about felony convictions that have not been expunged. Representative McMillin stated that it is important to allow felons to return to their pre-offense status, agreeing with Senator Webb that expungements are important for parental rights by allowing expunged felons to participate in their children’s lives in a more involved capacity while also encouraging rehabilitation and integration into communities. Representative McMillin, responding to questions from Representative Yonts, stated that expungement requires a statutory amendment and that it works like a gubernatorial pardon but does not replace it.
An audience member, Sandra Williams, spoke about felony expungements. Ms. Williams shared a personal story about how her niece’s felony conviction negatively impacted her life. Because felony convictions are part of someone’s permanent record, it decreases life opportunities that, in turn, can lead to repeat offenses.
Update on the Activities of the Unified Juvenile Code Task Force
Because of limited time, Chairman Westerfield moved the task force report to the next meeting of the Committee.
The meeting adjourned at 12:13 PM.