Call to Order and Roll Call
The 5th meeting of the Interim Joint Committee on Judiciary was held on Friday, October 7, 2016, at 10:00 AM, in Ashland, 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, John Schickel, Wil Schroder, Dan "Malano" Seum, and Robin L. Webb; Representatives Joseph M. Fischer, Chris Harris, Joni L. Jenkins, Mary Lou Marzian, Reginald Meeks, Suzanne Miles, Lewis Nicholls, Kevin Sinnette, and Brent Yonts.
Guests: Kay Adkins, President and CEO of Ashland Community and Technical College; Attorney General Andy Beshear; Representative Russ Meyer; Representative Dennis Keene; Police Chief Barry Waldrop, Nicholasville Police Department; Representative Lewis Nicholls; Dr. Jennifer Kersker; Deputy Sheriff Matt Smith, Greenup County Sheriff’s Department; Representative Brent Yonts, Russell Coleman, Kentucky Smart on Crime, James Rodgers-Smith, and Brian Hewlett, Public Defender’s Office.
LRC Staff: Alice Lyon, Chandani Kemper, Matt Trebelhorn, Elishea Schweickart, and Brad Gordon.
Welcome
Kay Adkins, President and CEO of Ashland Community and Technical College (ACTC) welcomed the committee to the technology campus and gave an overview of the school system. Four former AK Steel Corporation workers also welcomed the committee and expressed their gratitude to ACTC for giving them a second chance.
Workable Solutions to the Drug Epidemic
Andy Beshear, Kentucky Attorney General, Representative Russ Meyer, Representative Dennis Keene, and Police Chief Barry Waldrop, Nicholasville Police Department, discussed BR 201, which is prefiled for the 2017 Regular Session. The bill is designed to help fight the drug epidemic in Kentucky. New issues and drugs appear every day, which requires drug laws to be ever evolving.
Attorney General Beshear said that drug overdose rates are on the rise, which is attributed to the influx of more potent drugs being sold on the streets. In 2015, there were 1,248 overdose deaths reported in Kentucky, which is an increase by 177 from 2014. Thirty-four percent of the overdose deaths was due to the opioid known as fentanyl, which was used with heroin or by itself. Fentanyl is 30 to 50 times stronger than heroin, which means a fatal overdose can occur with as little as two milligrams. According to the FDA, there are 830 known fentanyl analogs. A bad batch of fentanyl can be devastating, as was seen in Mount Sterling when 12 overdoses and one death were reported. The use of carfentanil, a drug used to tranquilize large animals and that is 100 times stronger than fentanyl, is also on the rise. Although the General Assembly has passed landmark legislation on the war against drugs, more needs to be done to focus on fentanyl and carfentanil.
Representative Meyer spoke on his prefiled bill, BR 201, which is designed to combat fentanyl and carfentanil. The bill concentrates on drug traffickers and increases the criminal penalties when regarding these drugs. It amends KRS Chapter 218A to provide definitions of fentanyl and fentanyl derivatives and amends KRS 218A.20 to allow the Office of Drug Control Policy to request that the Cabinet for Health and Family Services schedule fentanyl analogs not approved for human use by the US Food and Drug Administration. It amends KRS 218A.142 to create the offense of aggravated fentanyl trafficking and amends KRS 218A.1412 to increase the penalties for trafficking fentanyl. Representative Meyer stated that he worked with Jeremy Triplett at the Kentucky State Police on the bill draft and expressed his gratitude for his help.
Representative Keene expressed his support for BR 201. He spoke of the effects that fentanyl has had on the Commonwealth, specifically northern Kentucky. Some of these effects include 307 deaths in Kenton County, 176 deaths in Campbell County, and 180 deaths in Boone County from 2012 to 2015 due to overdoses. He stressed the need for support and resources when combating these drugs. Police Chief Barry Waldrop spoke of his support for BR 201. He said that possibly 90 percent of crimes in many areas are related to these drugs. He stressed that the police can only do so much, and that all law enforcement and government branches must work together to fight this epidemic.
Responding to a question from Senator Westerfield, Attorney General Beshear stated that it would only require a finding by the court to determine if a person has a substance use disorder. His office is willing to work with others during the 2017 session to improve any problems within the bill.
Reentry Drug Supervision Pilot Program
Representative Nicholls presented his idea for a bill that establishes a reentry drug supervision pilot program, which would be a pilot program that works with the Department of Corrections (DOC) and with the Administrative Office of the Courts (AOC) and with the Drug Courts. This program would increase the capacity of treatment for drug users, substantially reduce prison population, maintain community safety, reduce recidivism, and create substantial cost savings.
Representative Nicholls spoke about the Kentucky All Schedule Prescription Electronic Reporting (KASPER) system, which is the Kentucky prescription drug monitoring program. While this was a major bill that was needed in Kentucky, it resulted in the beginning of the heroin epidemic began. Once KASPER began, drug users could no longer “doctor shop” and the abuse of prescription drugs began to decline, but this is also when heroin usage began to rise.
This Reentry Drug Supervision Pilot Program will begin with no violent offenders, and only take applicants convicted of Class C and Class D felonies. All offenses considered in this program must be drug related offenses arising from a substance abuse disorder, an offender whose probation or parole was revoked due to substance abuse, or an offender with a history of substance abuse disorder. The program will then apply the 10 drug court principles, which include:
1. Integrating alcohol and other drug treatment services with justice system case processing;
2. Using a nonadversarial approach, prosecution and defense counsel promote public safety while protecting participants’ due process rights;
3. Identifying eligible participants early and promptly placing them in the drug court program;
4. Providing access to a continuum of alcohol, drug, and other related treatment and rehabilitation services;
5. Monitoring abstinence by frequent alcohol and other drug testing;
6. Providing a coordinated strategy governing drug court responses to participants’ compliance;
7. Maintaining ongoing judicial interaction with each participant, which is essential;
8. Monitoring and evaluating the achievement of program goals and gauging effectiveness;
9. Continuing interdisciplinary education to promote effective drug court planning, implementation, and operations; and
10. Forging partnerships among drug courts, public agencies and community-based organizations to generate local support and enhance drug court program effectiveness.
This program would be modeled after drug court teams and have its own reentry teams. Each team will include a DOC Reentry Administrative Judge, parole officer, reentry liaison from Division of Probation and Parole, public defender or designated representative, representative from community mental health center, and a Social Services clinician.
The structure of this model includes an assessment of the offender while he or she is incarcerated by DOC, a plan of recovery created by DOC, a referral from DOC’s Division of Substance Abuse Programming to the Parole Board that would who make the decision for parole after detox, reentry drug supervision placement, placement in regular parole after successful completion of reentry drug supervision, and release from parole. All services are provided in existing probation and parole facilities. Electronic monitoring would be used along with GPS, continuous alcohol monitoring, and interlock devices.
Representative Nicholls said the bill will have a March 2018 implementation date for a pilot program, allocate power to DOC to determine if the pilot program should go statewide, a four year trial time, and an annual report by DOC to LRC and Interim Joint Committee on Judiciary by January 1 of each year with information in statute to gauge effectiveness.
Representative Nicholls provided recidivism rates and cost savings if this program is put into effect. Two years after Drug Court, graduates felony recidivism rate 9 percent versus 18 percent for those who did not enter Drug Court. Drug Court cost is $6,069 per year while prison cost is $20,047 per year. For each dollar spent on Drug Court, the state saves an average of $4.14.
Celebrating Families: An Evidence-Based Model to Strengthen Recovery
Dr. Jennifer Kersker, a national trainer for the Celebrating Families program, providing information about the program. Celebrating Families is an innovative program to impact adverse childhood experiences and facilitate whole-family recovery and resiliency. The program is trauma-sensitive, evidence-based, and designed for families with members of all age groups. Each lesson within this program teaches healthy living skills while also addressing addiction and issues that arise from it. The more adverse childhood experiences someone has, the more likely he or she is to have serious mental and physical health issues growing older.
Parental substance use and family violence are the major risk factors that can lead a child and families to experience toxic stress. Without community help, children learn that the world is scary and untrustworthy and do not have helpful coping mechanisms to deal with this stress. Dr. Kersker spoke of different things that Celebrating Families does to help these children and families heal from toxic stress they have experienced. These include utilizing supportive adults to give children a “safe space,” breaking the family cycle of addiction and abuse, and providing parents an opportunity to learn and practice critical skills that facilitate and nurture. Each week children and families also receive weekly lessons that focus on healthy living, which includes physical health, mental health, spiritual health, and social health. The weekly lessons are structured in four parts, including 30 minutes of family/bonding time, 30 minutes of family meal time, 90 minutes for age-specific group sessions, and 30 minutes connecting with the family session.
Dr. Kersker said Celebrating Families is a specialized program because all members in a chemically dependent family need to learn about the disease. Celebrating Families teaches them how to manage and heal. Parents know that they are not alone, and they are taught how to sustain recovery, have positive relationships, and express parental affirmation toward their children. Children are taught understanding of family disease, knowledge that their parents’ drug use is not their fault, and are given time with their caregivers to heal. The entirety of the family is taught anger management skills, communication skills, feelings and defenses, boundaries, problem solving, and nutrition.
Dr. Kersker shared findings on an evaluation done on Celebrating Families. The evaluation found that time to reunify significantly decreased, the rate of reunification increased, there was a large effect on parenting, participants learned and applied new skills, and it is effective with Hispanic families.
Responding to a question from Representative Nicholls, Dr. Kersker stated that she is a psychologist from Ohio and is a national trainer for Celebrating Families. This means she travels across the nation and trains different agencies on how to run the program in their communities. Celebrating Families is on SAMHSA’s evidence-based program list.
Local Law Enforcement & the Drug Epidemic
Deputy Sheriff Matt Smith, Greenup County Sheriff’s Department, discussed the efforts local law enforcement is making to combat the drug crisis in Kentucky. Prior to the 2000, almost all drug cases in the region were associated with marijuana, but then drug use turned toward prescription pills. During this time, law enforcement had focus on drug dealers, especially those who would travel out of state to obtain pills to bring them back to Kentucky to sell. After KASPER went into effect, putting a halt on prescription pill dealings, heroin and other drugs abuse began to rise; law enforcement is combating this epidemic today. Law enforcement is also tackling problems with bath salts, flakka, and methamphetamine. In Boyd County, there were 24 overdose deaths in 2015, and so far in 2016 there have been 25 overdose deaths.
Sheriff Smith also spoke about the amounts of heroin that the department has seized, including 100 grams that had a street value of $20,000. Law enforcement must focus on heroin and “bad” heroin that has been the contributor to so many overdoses in recent months. Bath salts and methamphetamine are gravely affecting communities, and law enforcement is becoming more and more with these cases.
2017 RS BR 22: Gross Misdemeanors
Representative Yonts discussed BR 22, creating gross misdemeanors, which passed the House in 2016 but was not heard in the Senate. This bill is an effort to continue alleviating the issue of people having felonies on their records. A gross misdemeanor would be placed between a felony and misdemeanor. It would classify the three nonviolent crimes of flagrant nonsupport, 2nd degree forgery, and possession of a forged instrument in the 2nd degree as gross misdemeanor charges instead of felonies. BR 22 would save more than $21 million per year.
Russell Coleman, with Kentucky Smart on Crime, spoke in favor of the bill. He stated that Kentucky spends far too much money within the justice system with a poor outcome, but the creation of gross misdemeanors would help. Kentucky Smart on Crime endorses the bill. Mr. Coleman spoke about other concerns that many have brought up regarding charges that could be altered to better the justice system in Kentucky, including elevating the theft threshold and creating a Class E felony with automatic expungement and restoration of rights.
James Rodgers Smith expressed his support for this bill. Mr. Smith fell behind on child support in 2012 and will have to plead guilty and be sentenced regardless of the fact that his support is no longer outstanding. Brian Hewlett, with the Public Defender’s Office and Mr. Smith’s attorney, spoke in support of BR 22, stating that a bill like this would help give a second chance to Mr. Smith and others like him who have turned their lives around.
Responding to a question from Senator Westerfield, Mr. Hewlett stated that Mr. Smith only received a flagrant nonsupport charge.
Responding to a question from Representative Nicholls, Representative Yonts stated that district court would have jurisdiction over gross misdemeanors.
Responding to a question from Senator Carroll, Representative Yonts stated that flagrant nonsupport was raised to $5000 to avoid confusion between a felony and misdemeanor.
Responding to a question from Senator Schroder, Mr. Hewlett stated that the prosecution in Mr. Smith’s case was not considering diversion.
There being no further business, the meeting was adjourned at 12:00 PM.