Call to Order and Roll Call
The 5th meeting of the Interim Joint Committee on Judiciary was held on Friday, October 3, 2014, 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; Senators Perry B. Clark, Carroll Gibson, Sara Beth Gregory, Jerry P. Rhoads, John Schickel, Dan "Malano" Seum, and Robin L. Webb; Representatives Robert Benvenuti III, Jesse Crenshaw, Joseph M. Fischer, Kelly Flood, Joni L. Jenkins, Thomas Kerr, Stan Lee, Mary Lou Marzian, Reginald Meeks, Darryl T. Owens, Ryan Quarles, Tom Riner, Ken Upchurch, and Brent Yonts.
Guests: Public Advocate Ed Monahan, KACDL Legislative Liaison Ernie Lewis, KSP Laboratory Director Laura Sudkamp, Secretary of the Justice and Public Safety Cabinet J. Michael Brown, Bluegrass Institute for Public Policy Solutions President Jim Waters, Pastor Anthony Everett, and Judge John Simcoe.
LRC Staff: Jon Grate, Alice Lyon, Chandani Jones, Dallas Hurley, Dale Hardy, Matthew Doane, and Elishea Schweickart.
DPA and KACDL Commentary on KY Criminal Justice Issues
Ed Monahan said that House Bill 463 has helped bring reforms and significant cost savings without adverse effect to public safety. However, the full projected amount of savings has not been met due to the discretion exercised by judges, prosecutors, and the Parole Board. The crime rate has declined since 2012, yet incarceration rates have increased. Mr. Monahan suggested that, if the Parole Board paroled all of the individuals who scored low risk on their validated risk assessment, there would be $18 million in savings in the first year, and even more savings in subsequent years. He said this could be done if the legislature modestly adjusted the Parole Board’s discretion in these cases.
Mr. Monahan recommended that adjustments be made for pretrial release. Pretrial release rates have increased three percent across the state, saving millions of dollars, yet there are several low risk individuals in county jails. The Arnold Foundation is conducting a pretrial release study in Kentucky; their preliminary findings have shown that if you have a low risk offender in jail for as few as two days, there is a high correlation with future criminal activity. Mr. Monahan also suggested reclassifying minor misdemeanors to civil violations and creating a gross misdemeanor classification for many current low level felonies.
Mr. Monahan spoke about eyewitness identification issues. The National Research Council and the National Science Academy have issued a report calling for reform because 75 percent of DNA exonerations are a result of eyewitness misidentifications. In Kentucky, there have been 14 documented exonerations, four of which were due to misidentifications.
Jim Waters, President of the Bluegrass Institute for Public Policy Solutions, spoke in support of Mr. Monahan’s recommendations. He said that there should be reasoned and balanced approaches based on fiscal research. Reclassifying minor misdemeanors to violations would bring substantial savings to jails and reduce court time. Fines that would be collected from this would increase revenue for Kentucky. Reducing low level felonies to gross misdemeanors would greatly improve the justice system and would save taxpayers the $46 per day in costs to incarcerate an offender. He also spoke about paroling low risk offenders, stating that the failure to parole more than 600 low risk offenders costs taxpayers nearly $28,000 per day. Mr. Waters said that these policy proposals would save taxpayers money and empower victims of crime and reform offenders.
Pastor Anthony Everett spoke in support of Mr. Monahan’s recommendations. He said about some members in his community who have low level felony convictions from previous years and how this impairs their ability to obtain work. A Class D felony expungment law would allow these individuals the chance to get a job and support their families. Pastor Everett stated that people of color are disproportionately impacted by non-violent Class D felony convictions.
Responding to a question from Representative Yonts, Mr. Monahan said that the use of presumptive parole language in regards to low risk offenders. He said that parole can automatic. Responding to another question from Representative Yonts, he said that the language in the statute will need to be changed for progress to be made. Responding to a question from Representative Benvenuti, Mr. Monahan said that some felonies are not criminal activity but rather are civil wrongs that have been criminalized for first time offenders. Responding to a question from Representative Meeks, Mr. Monahan said that counties would be saving substantial amounts of money by not incarcerating low risk offenders before their trials. If there is room in county jails, state prisoners can fill those empty spots and the jails can receive state funding.
Responding to a question from Senator Webb, Mr. Monahan said that money saved by paroling low risk offenders could be used to provide treatment to drug addicted offenders. Responding to a question from Senator Schickel, Mr. Monahan said that every law has limits on judges, prosecutors, defense lawyers, and parole board members, and the laws need to be adjusted. Responding to a question from Representative Lee, Mr. Monahan said that comprehensive analysis determined the cost of incarcerating an offender. Representative Lee expressed his concern about eliminating deterrents for criminal activity and putting public safety at risk. Mr. Waters responded by stating that other states, like Texas, have achieved positive outcomes when it comes to reducing the crime rate and the costs of criminal justice. Responding to a question from Representative Fischer, Mr. Monahan said that the best way to treat heroin users is to substantially increase the treatment options for the individuals who suffer from heroin addiction.
KSP Laboratories Improving Services: Future Strategies and Solutions
Laboratory Director Laura Sudkamp spoke about Kentucky State Police (KSP) laboratories’ issues. KSP has laboratories in Cold Spring, Ashland, London, Frankfort, Louisville, and Madisonville. KSP employs 130 laboratory staff, including 92 analysts; in one year they have worked 40,000 cases. The largest area within the KSP Laboratories is Drug Chemistry, closely followed by Toxicology. Ms. Sudkamp also pointed out the differences in cases that are received and cases that are completed, noting that DNA cases are coming in faster than can be worked.
Ms. Sudkamp explained that the speed at which cases are turned around is what matters to the courts. The average turnaround in 2013 for the toxicology department was about 75 days, and it has dropped to about 56 days for this year. The DNA department has lost staff, which has slowed its turnaround, but staff at the central lab has increased.
After accreditation, the KSP laboratories realized they needed to overhaul the system, which included changing everything from the chemical processing that’s used to purchasing new instruments. Ms. Sudkamp also expressed concern with the KSP Laboratories’ $1,000 limit for repairs, which is too low to repair any instruments. If an instrument fails, it usually takes four to six weeks before it is repaired. Responding to a question from Senator Westerfield, Ms. Sudkamp said that a $10,000 limit would allow the repair time to be cut to around two weeks. The new equipment that the KSP Laboratories have received has resulted in increased efficiency. Toxicology cases no longer need to be outsourced to other venders, and new equipment now allows KSP staff to test for a wider range of drugs. DNA cases also no longer need to be outsourced, and new Y chromosome test techniques can now be completed in KSP laboratories. The DNA turnaround times could be reduced with a substantial investment for new equipment, which would cost about $5 million. DNA database hits have produced 55 hits to offenders in other states, and 107 to Kentucky offenders, resulting in convictions that would likely not be possible without the DNA evidence gathered by KSP Laboratories.
Ms. Sudkamp spoke about laboratory equipment needs. The trace section is working with equipment that is so outdated that replacement parts are no longer available. New technology analyzes samples faster and provides more information about samples; if KSP Laboratories could acquire this technology, cases could be solved faster. The Intoxilyzer 8000s for DUI cases will replace the 5000s. KSP has 50 of these new Intoxilyzers but needs 150. When equipment breaks down and cannot be repaired at reasonable pace, the cases that are being worked fall behind, which affects other areas in the court process.
Judge John Simcoe explained how the courts are affected when the KSP laboratories cannot get results out at an acceptable pace. Most cases referred to toxicology involve individuals who have already been arrested, which means there can be due process concern when testing takes too long. As required by KRS 189.330, any DUI case that is over 90 days old is to be reported to the Chief Justice and the Attorney General. If the evidence analysis is not completed in this amount of time, judges are left with the difficult decision of what to do with the case. He also spoke of the high expectations of jurors and the public when it comes to laboratory test results, due to what they have seen in the media.
Responding to a question from Senator Schickel, Ms. Sudkamp said that all cases are prioritized, but when the court contacts the laboratory with a critical case they try to get those cases completed quickly. Responding to a question from Senator Seum, Ms. Sudkamp explained that the total operating cost of the KSP laboratory program was $11.5 million. None of this money comes from private entities, and no other state crime labs derive their funding from private entities. Responding to a question from Representative Fischer, Ms. Sudkamp said that the only machines that can detect heroin are located in Frankfort.
Penal Code & Parole Reform
Secretary J. Michael Brown spoke about the Kentucky penal code and parole reform. The penal code is 40 years old, and reform is overdue. He said that House Bill 463 has done what it was intended to do, which was reform Kentucky’s drug laws and not the penal code.
The parole board started in Kentucky in 1956 with three members. It grew to five members in 1976 and seven members in 1992; it now has nine fulltime members. Kentucky has a system of indeterminate sentencing, which can be a problem because once a sentence is given by a judge, the parole board decides the amount of prison time an individual will usually serve. In 2014, the parole board reviewed 21,414 cases. It was impossible for nine individuals to make an informed parole decision under such a demanding caseload. The parole board operates in two ways: two-person panels and file review. The total prison population is well below what the Pew Foundation projected it to be without HB 463 and could be further reduced by changing how cases are reviewed.
Another success of House Bill 463 is Kentucky’s mandatory release supervision program. The program was designed to target those individuals who were more likely to return to criminal activity once released. Because of this program, $37 million has been saved and recycled back into the budget. The Local Jail Assistance Fund allocation has more than doubled in the last budget year, from over $2 million to over $4 million.
Issues within the penal code often involve the parole board and indeterminate sentencing system. Because of Kentucky’s indeterminate sentencing and other factors, it is hard to know a specific amount of time an individual will serve in the system. There has also been confusion within the public on the difference between a violent offense and a violent offender. Secretary Brown said that these terms should be redefined in statute. He said that appropriate penalties and parole eligibility levels might be assigned.
Secretary Brown said that he believed the real issue within the system is compression. This compression comes from felony categories and parole eligibility. Sentence restructuring could result in low misdemeanors being reclassified as violations, and a possible Class E felony category could be considered. He said there are at least 50 felonies that could fall into a 50 percent parole eligibility to further cease the compression that is in the criminal justice system. Transparency in sentencing is needed but is lacking in Kentucky.
Responding to a question from Senator Gibson, Secretary Brown said that the parole board is structured as nine full-time members, and only six can come from one political party. There are five disciplines: law enforcement, penology, education, social work, and law. Each member of the parole board must have at least five years of experience in one of these disciplines. Once a parole board position is open, an individual can apply. Senate confirmation is required. Confirmed individuals serve four-year terms; if they are not confirmed, their service on the parole board stops immediately. Responding to a comment from Senator Schickel, Secretary Brown said that House Bill 463 did not create Kentucky’s drug problem. Responding to a question from Representative Kerr, Secretary Brown said individuals who have served their time but remain in supervisory programs are not incarcerated. They would only be incarcerated again if they violate their conditions during the supervisory period.
The meeting adjourned at 12:08 PM.