Call to Order and Roll Call
The 3rd meeting of the Interim Joint Committee on Judiciary was held on Thursday, August 25, 2016, at 10:15 AM, in Louisville, KY. Representative Darryl T. Owens, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Whitney Westerfield, Co-Chair; Representative Darryl T. Owens, Co-Chair; Senators Danny Carroll, Perry B. Clark, Ray S. Jones II, Alice Forgy Kerr, John Schickel, Wil Schroder, and Dan "Malano" Seum; Representatives Joseph M. Fischer, Jim Gooch Jr., Chris Harris, Thomas Kerr, Mary Lou Marzian, Reginald Meeks, Tom Riner, and Kevin Sinnette.
Guests: Andy Beshear, Attorney General of Kentucky; Rob Sanders, President of the Commonwealth Attorneys Association; Chris Cohron, Commonwealth’s Attorney for the 8th Judicial Circuit; Amy Milliken, President of the County Attorneys Association; Bob Neese, Boone County Attorney; Heather Wagers, KSP staff attorney; Lieutenant Larry Newton, Kentucky State Police; Sargent Timothy Moore, Kentucky State Police; and Graham Gray, KSP staff attorney.
LRC Staff: Katie Comstock, Dallas Hurley, Alice Lyon, Chandani Kemper, Matt Trebelhorn, Elishea Schweickart, and Brad Gordon.
Welcome
Andy Beshear, Attorney General of Kentucky, welcomed the Interim Joint Committee on Judiciary to the Prosecutors Advisory Council (PAC) conference. Gina Carey, administrative head of PAC, along with the PAC council puts together the annual conference. Attorney General Beshear noted that the purpose of PAC is to ensure that County and Commonwealth attorneys across the state get the education, training, and resources they need in order to perform their jobs. An example of this training is how to effectively prosecute sexual assault cold cases, which is an imperative skill as kits from the rape kit backlog begin to come back.
Attorney General Beshear thanked the committee for its leadership in the passage of SB 63, also known as the Sexual Assault Forensic Evidence (SAFE) Act. He thanked the entire General Assembly for empowering the Attorney General’s office through the 2016 budget by providing $4.5 million to the Kentucky State Police Crime Lab, $2 million for rocket dockets, and $8 million to fight substance abuse across Kentucky.
Prosecutorial Issues and Concerns
Rob Sanders, President of the Commonwealth Attorneys Association, Chris Cohron, Commonwealth’s Attorney for the 8th Judicial Circuit, Amy Milliken, President of the County Attorney Association, and Bob Neese, Boone County Attorney, presented several issues facing Kentucky’s prosecutors.
The Commonwealths Attorneys Association has several priorities for the 2017 legislative session, the first being protection of Persistent Felony Offender (PFO) laws and making sure that prosecutors have the discretion they need. This includes keeping the 2nd degree portion of the PFO laws, which Mr. Sanders stated is a fair middle ground for defendants. Mr. Sanders also stated that the association is open to discussing Class E felonies, especially helping control the prison population, but urged keeping the extradition power when thinking about anything under a felony.
Parole eligibility and sentence restructuring is another priority for the Commonwealth attorneys. Mr. Sanders expressed concern with the use of the terms “violent” and “nonviolent” when describing parole eligibility, stating that there are many crimes listed as nonviolent that are actually violent. Mr. Sanders suggested removing “violent” and “nonviolent” and instead using a ranking system for parole eligible inmates.
Chris Cohron said DNA on arrest is the single most important potential law enforcement tool. DNA on arrest is a noninvasive procedure that is conducted by using a mouth swab to gather 13 DNA markers from junk DNA. DNA on arrest could be used to prevent crimes. Since 1974, 90 percent of state prisoners have been repeat offenders and 70 percent of America’s crime is committed by 6 percent of the defendants. Twenty-eight states have a DNA on arrest law. Mr. Cohron urged members to study this procedure further and consider it in the upcoming session.
Amy Milliken said that county attorneys handle all traffic cases, misdemeanor cases, public offenders, status offenders, paternity and support cases, guardianships, and family court cases in district court, and represent counties and the fiscal court.
Responding to a question from Senator Westerfield, Ms. Milliken stated that, besides funding, DUI issues are one of the biggest problems county attorneys face. Although DUI cases have dropped over the last several years, these crimes still drive a majority of court dockets.
Responding to a question from Senator Clark, Mr. Cohron stated that in Kentucky a search warrant for a blood draw in a DUI case can only be obtained if there is death or serious physical injury. He said that this may need to be amended to help prosecution.
Responding to a questions from Representative Harris, Mr. Sanders stated that several different crimes can be reclassified to help decrease the cost of incarceration in Kentucky. Funding addiction treatment and mental health treatment would help shift the cost of incarceration and provide help that some individuals need. Kentucky’s penal system is difficult, and currently the best way to reduce the prison population is to triage rocket docket cases immediately.
Updating Kentucky’s Sex Offender Registry: 16 HB 575
Representative Kevin Sinnette began by thanking the committee for listening to 2016 HB 575, explaining the importance of the bill before turning the presentation over to Heather Wagers, KSP staff attorney, Lieutenant Larry Newton, Sargent Timothy Moore, and Graham Gray, KSP staff attorney.
Mr. Gray discussed equivalent offenses, stating that a revision of KRS 17.500(3)(a) is needed to provide equivalent offense from other language similar to that in the sex crime definition. Without this change, some offenders are not having to register on Kentucky’s Sex Offender Registry (SOR). Kentucky has no basis to register a resident that is convicted of a similar offense against a minor victim in another state. Also, because these individuals reside in Kentucky, they cannot be deemed a “move-in resident” and be required to register.
Another concern is move-in offenders with military or federal convictions. Mr. Gray stated that KSP would like to expand KRS 17.510(7) to include federal and military convictions. This would help avoid the cycle of Kentucky relying on a duty to register under federal law, while federal and military courts defer to the states. There is no military sex offender registry or federal sex offender registry.
Mr. Gray discussed collecting palm prints at crime scenes. Offenders often leave as many, if not more, palm prints at a crime scene as fingerprints. Many times these palm prints are more usable than fingerprints. He requested the committee to consider amending KRS 17.500(6) to add palm prints to the definition of registrant information. Over 20 states require palm prints of sex offenders and/or other criminals.
Another suggestion dealt with foreign travel, requiring registrants to provide passports and immigration documents. This information helps law enforcement agencies to locate and apprehend these sex offenders when they are traveling overseas. Given the sensitivity of this information about a registrant, KSP suggested that the information could be exempt from posting on the public website by amending KRS 17.580.
KSP suggested several corrections to statutory references. These corrections include a change to KRS 17.520(2)(a)2 to read “unlawful imprisonment” rather than “unlawful confinement” and a change to KRS 17.545(1) to include playgrounds and daycare facilities. KSP suggested amending KRS 17.545 to place limits on registrants residing with minors. Mr. Gray stated KSP is seeking an annual registration fee of $75. This fee is “day-one forward,” meaning that it would only apply to registrants that committed a registrable offense on or after January 1, 2018. This fee will help to keep the SOR program solvent; the program currently costs the state about $694,028.94 annually. There will be a registration fee waiver exemption for impoverished registrants.
Responding to a question from Representative Gooch, Mr. Gray stated that the registry lists the severity of an offense. Ms. Wagers said that each offender’s actual conviction can be viewed online on the Kentucky SOR website.
Responding to a question from Representative Kerr, Mr. Gray said KSP welcomes suggestions for statute changes that would improve SOR.
With there being no further business, the meeting was adjourned at 11:43 AM.