Call to Order and Roll Call
The 1st meeting of the Interim Joint Committee on Judiciary was held on Monday, June 15, 2015, at<MeetTime> 10:00 AM, at the Hyatt Regency Hotel in Lexington, Kentucky. 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 Danny Carroll, Perry B. Clark, Carroll Gibson, Ray S. Jones II, Alice Forgy Kerr, John Schickel, Wil Schroder and Dan "Malano" Seum; Representatives Robert Benvenuti III, Joseph M. Fischer, Kelly Flood, Chris Harris, Joni L. Jenkins, Stan Lee, Mary Lou Marzian, Suzanne Miles, Darryl T. Owens, Ryan Quarles, Tom Riner, Ken Upchurch, Gerald Watkins, and Brent Yonts.
Guests: Public Advocate Ed Monahan, Judge Tommy Turner, Ashli Watts, Secretary J. Michael Brown, Judge A.C. McKay Chauvin, Judge David Tapp, and Department of Corrections Division of Probation and Parole Director Bob Rodriguez.
LRC Staff: Jon Grate, Matt Trebelhorn, Alice Lyon, Chandani Jones, Elishea Schweickart, Beth Taylor, and Lindsay Huffman.
The Kentucky Department of Public Advocacy
After a brief introduction, Ed Monahan with the Department of Public Advocacy (DPA) began talking about the tasks of the Department of Public Advocacy. He expressed pride in the public defenders across the state of Kentucky, saying they an average 472 clients each year with funding of only $245 per case.
Mr. Monahan said that public defense has important public value; there have been over 14 exonerations in Kentucky of people who have been wrongly convicted. Public defenders also reduce the cost of pretrial detention and post-adjudication incarceration cost. Although these things are being done, Mr. Monahan said that public defenders have important needs that are not being met. The average salary for public defenders is $58,000 which is not enough to attract or retain the people needed for this line of work.
Mr. Monahan said that although he was asking for financial help, he also wanted to share ideas to help generate safe ways to save money in the criminal justice system. This could be done through a 4-point plan:
1. Responsibly reducing unnecessary costs in the criminal justice system – This can be done by reducing the number of cases in the system by reclassifying low level misdemeanors to violations, reducing the waste of taxpayer money by not incarcerating low and moderate risk inmates for longer than is necessary for public safety, and creating more defense-generated community-based alternative sentencing plans.
2. Provide resources to ensure that cases are timely, fully, and fairly resolved - Increasing the time local conflict lawyers spend on conflict cases as recommended by the 2011 KBA Task Force on the Provision and Compensation of Conflict Counsel for Indigents, reducing the average workload of full-time public defenders to ensure cases are addressed more promptly, realigning the 33 DPA trial offices to 57 to match the Commonwealth Attorney’s offices to improve the efficiency of local justice communities, and reducing the costly delays due to high turnover of defenders by establishing defender attorney positions and compensation at sufficient levels.
3. Ensure ethical workloads that allow for the timely processing of cases – Create a statute that states legal representation of indigents accused of a crime is a necessary governmental expense.
4. Ensure full, professional independence - Convert DPA to a cabinet level office in the executive branch organizational structure.
Mr. Monahan also discussed the DPA’s nationally recognized Alternative Sentencing Social Workers Program. This program focuses on cases with substance abuse, mental illness, or juveniles. It promotes evidence based policies and practices that advance public safety and save incarceration cost. There are currently 23 social workers who do an average of 70 individualized plans a year, but could do more if more funding could be acquired. This program is currently being studied by the University of Kentucky and it is showing substantial savings.
Mr. Monahan then presented ten ideas to reduce waste in Kentucky’s criminal justice system and reduce costs for counties and the state:
1. Reclassify minor misdemeanors to violations.
2. Create "gross misdemeanor" classification for low level felonies.
3. Promote employment and reduce recidivism by creating Class D felony expungement.
4. Reduce days in the county jail by creating "clear and convincing" standard for the pretrial release decision.
5. Presume parole for eligible low-risk offenders.
6. Modify violent offender and PFO statutes.
7. Provide alternative sentencing plans for flagrant non-support instead of imprisonment for felony.
8. Create alternatives to incarceration.
9. Increase the felony theft limit from $500 to $2,000.
10. Reduce waste by limiting capital prosecutions.
Representative Brent Yonts testified about several of the bills he filed in the 2015 session. Although these bills were not heard during the session, Representative Yonts expressed his gratitude and hope with the attention the bills had received. The bills included:
• HB 305 - Reduce low level misdemeanors to violations with pre-payable fines, saving jail, prosecution, and defense expenses.
• HB 286 - Permit local jailers to grant limited service credits against an inmate's sentence for good behavior and educational achievement, saving jail costs and encouraging good behavior, and also mandate alternative sentencing for flagrant non-support instead of imprisonment, saving prison costs and better enabling delinquent parents to work to support their children.
• HB 285 - Require parole after a fixed period for nonviolent offenders serving a Class D sentence and release for misdemeanants who have good behavior, saving county and state incarceration costs.
• HB 284 - Adoption of a “clear and convincing” standard for pretrial release decisions and findings specific to the defendant, guaranteeing that defendants who are low-risk and entitled to release are not needlessly held in jail at county expense.
• HB 304 - Modify the persistent felony offender statute, saving prison costs by reserving the highest sentences for violent offenders and career criminals.
Judge Tommy Turner, LaRue County Judge Executive, testified in support of Representative Yonts Bills. Judge Turner spoke about public safety, stating that Kentucky’s crime rate and violent crime rate are lower than that of the national average. Though rates are good, county jail cost in nearly every Kentucky County is the most significant drain on tax dollars. Because of this, any measure taken that would save the counties money should be considered, and this is why he and others support Representative Yonts’ proposed house bills.
Secretary J. Michael Brown, of the Justice and Public Safety Cabinet, also testified in support of Representative Yonts’ recommendations. Secretary Brown stated that the parole recommendations would be helpful considering the parole board has a very large case load. Secretary Brown also touched on the fact that House Bill 463 did not address the Penal Code, but the recommendations made by Representative Yonts’ would address some of the issues.
Ashli Watts, Director of Public Affairs for the Kentucky Chamber of Commerce, also spoke in favor of the bills. She spoke of “leaks” in the state government’s budget system. In 2010 the Kentucky Chamber of Commerce released the original Leaky Bucket Report showing that spending on Medicaid, corrections, and public employee health insurance was growing at a faster rate than the overall state budget. Studies show that students who achieve higher education are less likely to commit crimes and this report showed that the state was failing to invest in education. Because of these findings, the Chamber of Commerce supported House Bill 463, which was expected to save about $422 million over 10 years. The Chamber supported 2014 Senate Bill 200, which was projected to save $ 4 million over five years. Over the last budget, corrections spending grew only 4.2 percent, less than half the rate of general fund spending. The Chamber released an updated report in 2014 which recommended continuing full implementation of the 2011 legislation to control the cost. Legislatures were also encouraged to carefully consider legislative efforts to increase penalties that would result in higher correction cost. The Chamber of Commerce also encourages the legislature to continue reviewing the Kentucky Penal Code with the goal of creating more alternatives to incarceration for low level crimes.
Mr. Monahan acknowledged the new Coalition for Public Safety, which works across the political spectrum to pursue a comprehensive set of federal, state, and local criminal justice reforms to reduce jail and prison populations and associated costs, and end the systemic problems of over criminalization and over incarceration.
Responding to a question from Senator Westerfield, Mr. Monahan said that he had information involving flagrant non-support cases and could provide it. Mr. Monahan also suggested that flagrant non-support violators would have a better chance at becoming productive members of society if they were worked with and not just dealt with.
Responding to a question from Representative Benvenuti, Mr. Monahan said that under the current Kentucky penal code, aggravated DUI is not considered a violent offense. Mr. Monahan urged the legislature to reconsider what are labeled violent and non-violent offenses.
Responding to a question from Senator Jones, Mr. Monahan said the United States Department of Justice is now entering state lawsuits in federal court regarding the adequacy of indecent criminal defense services. He said that DPA needs help from the legislature to handle case loads and keep the system adversarial.
Responding to a question from Representative Lee, Mr. Monahan said that the prison population in Kentucky is far less than what it would have been if House Bill 463 had not passed, but all of the projected savings have yet to be met.
Implementation of SB 192 Appropriation Authority
After a brief introduction, Secretary J. Michael Brown of the Justice and Public Safety Cabinet, and Van Ingram, Executive Director for the Kentucky Office of Drug Control Policy, discussed the appropriation portion of Senate Bill 192. Secretary Brown recommended a funding level up to $1 million to go to the Department of Corrections to provide or to contract for the provision of substance abuse treatment in county jails, regional jails, or other local detention centers that employ evidence-based practices in behavioral health treatment or medically assisted treatment for non-state inmates with opiate addiction or other substance abuse disorders. Secretary Brown recommended up to $500,000 for KY-ASAP programs operating under KRS Chapter 15A in county jails or in facilities under the supervision of county jails that employ evidence-based behavioral health treatment or medically assisted treatment for inmates with opiate addiction or other substance abuse disorders. He recommended funding $1.5 million to the Department of Corrections for the purchase of an FDA-approved extended-release treatment for the prevention of relapse to opiate dependence. Secretary Brown recommended funding up to $2.6 million for KY-ASAP to provide supplemental grant funding to community mental health centers for the purpose of offering additional substance abuse treatment resources. He recommended funding up to $1 million for KY-ASAP to address neonatal abstinence syndrome by providing supplemental grant funding to community substance abuse treatment providers to offer residential treatment services to pregnant women.
Responding to a question from Senator Westerfield, Secretary Brown said that the geographical areas of Kentucky with the most serious heroin threat will be dealt with first when it comes to funding. Van Ingram spoke of the various meetings he has had with different stakeholders on their areas and expressed hope that funding application turn out will be high.
Secretary Brown recommended up to $1.2 million for the Department for Public Advocacy to provide supplemental funding to the Alternative Social Worker Program. He recommended up to $1.2 million for the Prosecutors Advisory Council to enhance the use of rocket docket prosecutions in controlled substance cases. Secretary Brown recommended up to $1 million to provide supplemental funding for traditional KY-ASAP substance abuse programming under KRS Chapter 15A. Mr. Ingram expressed how, in year two of the current budget, KY-ASAP was cut by about $ 700,000. If those funds are restored in 2016, KY-ASAP will offer an additional round of supplemental grant funding to address prescription drug and heroin abuse.
Responding to a question from Senator Schroder, Mr. Ingram stated that the top three counties in Kentucky to experience the highest overdose deaths per capita are located in Eastern Kentucky. He said he could get exact numbers if requested. Secretary Brown said that, the way Senate Bill 192 is written, funds are directed in several categories. He also assured the members that funding will target the areas of biggest needs.
Kentucky’s SMART Court Experience
After a brief introduction, Judge A.C. McKay Chauvin, Chief Regional Circuit Judge, explained the SMART Court experience to the committee members. SMART stands for Supervision Motivation Accountability Responsibility Treatment.
Judge Chauvin explained that SMART is designed to not only be tough on crime, but also smart on crime. Resources are used in a way that not only incarcerates those that need to be incarcerated, but does not incarcerate those who can be helped using alternative methods.
Judge David Tapp, Circuit Judge, discussed the process of the SMART program. The SMART program is a different way of addressing the probation population in Kentucky. There is a substantial difference in the population today than what it has been in the past; probation is no longer reserved for low risk offenders. Much of the prison population comes not from direct sentencing but probation revocations and pretrial diversions. Because of this, those on probation need to be monitored based upon their risk/needs assessment. Judge Tapp stated that at this time, the usual probation approach does not work well for high risk/high need individuals. Because usual probation is not based on one’s criminogenic needs, it is not timely or effective.
The SMART program applies only to high risk/high need probationers and Judge Tapp stated that these principles should not apply to all probationers. Judge Tapp stressed that even though many individuals in the SMART program share the same criminogenic needs that some in Drug Court do, it is not the same program.
SMART has gone from monitoring behavior to modifying behavior. Some of the responsibilities of those in the SMART program are: rigorous initial reporting—24/7/365, candor is emphasized, non-appearance is punished more severely, probationers must progress, and sanctions occur immediately. Responses to violations are not only proportionate and graduated but consistent between defendants. Judge Tapp emphasized that one of the fundamental principles of SMART is the relationship between a judge and a probation officer and the officer having a manageable case load, but it is also one of the biggest challenges for the Department of Corrections.
Results from studies of the SMART program have found the SMART probationers:
• Test positive less often for drugs even though they test more frequently,
• Pay their fines, fees and costs with strict regularity,
• Are far less likely to be re-arrested, and
• Serve less jail time and save taxpayer dollars.
Judge Tapp stated that ultimately SMART is about confidence. It is about making sure that the highest risk/highest need probationers are being supervised effectively while reducing cost to the tax payers.
Responding to a question from Senator Westerfield, Judge Tapp stated that there are currently seven SMART programs across the Commonwealth. Director Bob Rodriguez, Division of Probation and Parole, also replied stating that there are 373 offenders in the SMART program. Director Rodriguez stated that, although supportive of SMART, the Department of Corrections is concerned with the program’s consistency. Responding to Director Rodriguez, Judge Chauvin stated that not all offenders need to be considered high risk/high need. Judge Tapp discussed data that found that the SMART program was less costly than regular probation.
The meeting adjourned at 12:12 PM.