Call to Order and Roll Call
The 3rd meeting of the Interim Joint Committee on Judiciary was held on Thursday, August 21, 2014, at 1:30 PM, at the Lexington Convention Center in Lexington, KY. Senator Whitney Westerfield, Co-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 Carroll Gibson, John Schickel, Dan "Malano" Seum, Katie Stine, and Robin L. Webb; Representatives Robert Benvenuti III, Jesse Crenshaw, Joseph M. Fischer, Kelly Flood, Stan Lee, Suzanne Miles, Ryan Quarles, Tom Riner, and Ken Upchurch.
Guests: Chris Cohron, Mike Foster, Mitchel Denham, Judge Frederick T. Moses, and Secretary J. Michael Brown.
LRC Staff: Jon Grate, Chandani Jones, Dallas Hurley, and Elishea Schweickart.
Prosecutorial Bar Issues in Kentucky
Speaking for the prosecutorial bar were Commonwealth’s Attorney Chris Cohron, Christian County Attorney Mike Foster, and Assistant Deputy Attorney General Mitchel Denham.
Chris Cohron presented the Commonwealth’s Attorneys’ most pressing issues.
1) ECourts. The Administrative Offices of the Courts will begin to require electronic court filings throughout the state, which will require a substantial investment in technology systems.
2) The Kentucky State Police Laboratory. While the state crime lab does a good job, it is falling behind when it comes to technology.
3) Revamping Sentencing. Prosecutors are unable to accurately predict sentences for crime victims, which puts a strain on the justice system. Mr. Cohron expressed a desire to implement determinate sentencing in Kentucky.
4) Criminal Code. There are currently 15 percent, 20 percent, and 85 percent parole eligibility offenses, and now we are beginning to create 50 percent parole eligibility offenses. There are many examples where crimes that are not equal in severity carry the same parole eligibility, and that an improved parole eligibility structure should be examined.
5) Drug abuse, heroin, and synthetic drugs. Heroin overdose cases are being reported at a record rate, and that synthetic drug use is also on the rise. Drug laws need to continue to be examined and updated.
6) DUI homicide and vehicular assault. There have been several instances where police could not obtain evidence in DUI homicide or vehicular assault cases due to exigent circumstances. Legislation is needed to allow police to collect blood samples in emergency situations if they have probable cause.
7) GPS trackers. There have been instances where private citizens are placing GPS trackers on the vehicles or property of others, which is not addressed by Kentucky law.
8) Safe Harbor Provision. The phrase “affirmative defense” that is used in the KRS 529.170 is not a statutorily defined term in the state of Kentucky. Commonwealth’s Attorneys want to change the phrase “affirmative defense” to “exculpatory defense.”
Mike Foster addressed the most critical issues facing Kentucky County Attorneys.
1) Staffing. The biggest issue that County Attorneys seem to face each year is a lack of sufficient staffing.
2) Drug abuse. There are about 15,000 cases a year handled in Christian County, and about 75 percent of those cases are drug related.
3) Drug Court and Juvenile Drug Court. Christian County has had great success with their Drug and Juvenile Drug Court, but those courts are funded by the county in lieu of state funding, and are in need of more robust staffing.
4) Consumer fraud. Consumer fraud is on the rise. Legislation is needed that targets new forms of consumer fraud.
5) Expungement law. The current expungement law for misdemeanors has unintended consequences. He suggested a simple revision to the current law, stating that if an individual only has one misdemeanor and a five year period has passed without further convictions, that individual’s record should be expunged. If an individual has more than one misdemeanor, a judge should take expungement into consideration if a significant amount of time has passed since the last misdemeanor was acquired. This revision will be limited in the areas in which it applies: it cannot be for violent crimes, there can be no felony convictions, it cannot be a sex offense, and the individual cannot be on probation.
Responding to a question from Representative Tilley, Mr. Cohron stated that despite recent legislation, synthetic drug production continues to evolve and the laws will have to be adjusted accordingly.
Responding to a question from Senator Gibson, Mr. Foster confirmed that many of his defendants are repeat offenders who suffer from substance abuse disorders. Senator Gibson then inquired of Mr. Foster’s opinion as to a solution for repeat drug offenders, to which Mr. Foster suggested effective and extensive treatment.
Mitchel Denham presented the most pressing issues confronting the Office of the Attorney General (OAG) and its staffing structure:
1) Budget cuts. Overall, general funds have been cut approximately 40 percent. This is making it difficult on the OAG in several ways, one of which is the upcoming change to the electronic court filing system. Because this system is expensive, the OAG needs additional funds to update its information technology.
2) The Office of Criminal Appeals. This is the OAG’s largest criminal division. Employees at the Office of Criminal Appeals reply to daily research requests, file U.S. Supreme Court briefs, and sit on the Public Corruption Task force and the Criminal Rules Committee.
3) Office of Special Prosecutions. This office handles complex and high profile cases.
4) Department of Criminal Investigations. This office is divided into two different branches, the Public Integrity Branch and the Drug Enforcement Branch.
5) Cyber Crimes Unit. This unit was created in 2008, and has seized over 500,000 images from the internet and helped achieve 130 child pornography convictions.
6) Office of the Prosecutors Advisory Council. This office is the administrative arm for all state prosecutors.
7) Office of Medicaid Fraud and Abuse Control. This office investigates and prosecutes patient abuse charges and Medicaid fraud.
8) Office of Victims Advocacy. Provides support to local victim’s advocates. This office is also working on a Domestic Violence Fatality Review report which will be released in coming months.
9) Settlement money for drug treatment. In January of 2014, $32 million was recovered from two pharmaceutical settlements. A majority of the settlement money went to the Substance Abuse Treatment Advisory Committee.
Use of Vivitrol to Prevent Opioid Relapse in A Drug Court Setting
Judge Fredrick T. Moses from Hocking County, Ohio spoke about successfully utilizing Vivitrol to treat opioid addiction. The benefits of using Vivitrol include its inability to be abused. It contains no opioids and produces an immediate elevation in mood. Judge Moses addressed the negative impacts of Suboxone, including drug diversion, medical fraud by doctors, and overdoses.
The Hocking County Drug Court, over which Judge Moses presides, is a standard four phase drug court program;
1) Stabilization Phase: Candidates are screened upon entering the program.
2) Engagement Phase: Participants receive intense treatments throughout the program.
3) Action Phase: Participants begin to cut back on the number of appointment they are required to attend.
4) Continuation Phase: Appointments are cut even further back.
There are four graduates from this program, all of which have remained clean since completing their treatments, and 20 individuals are currently enrolled.
Responding to questions from Senator Westerfield, Judge Moses said that the program was funded with state and federal grants. Shots are was administered through a primary care agency. He does not see a downside to using Vivitrol. Responding to a question from Senator Stine, Judge Moses explained that Vivitrol helps stabilize patients in drug treatment, but for it to be effective it must be used with other drug treatment therapies.
Penal Code & Parole Reform
Secretary J. Michael Brown discussed penal code and parole reform and the evolution of Kentucky’s Penal Code. He explained that the last effort to reform the penal code was in 2010 when the Task Force on the Penal Code and Controlled Substances Act was formed. The findings of the Task Force were used to create HB 463 in 2011, substantially reforming Kentucky’s drug laws, but it failed to reform Kentucky’s Penal Code. Secretary Brown said the time is right for penal code reform.
Secretary Brown addressed issues concerning the Parole Board. Kentucky’s indeterminate sentencing structure has led to confusion among crime victims and prosecutors, which undermines the entire criminal justice system. In 2013, the Parole Board claimed to work 21,236 cases, which Secretary Brown said was impossible. He expressed frustration with the definition of “violent offender” in KRS Chapter 439 which arguably omits several violent crimes to the dismay of prosecutors and crime victims.
Secretary Brown said that Kentucky is in a situation of “compression.” There is compression of Kentucky’s felony categories and in parole eligibility, and study and revisions are needed.
The meeting adjourned at 3:00 PM.