Call to Order and Roll Call
The 6th meeting of the Interim Joint Committee on Judiciary was held on Friday, November 4, 2016, 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 Danny Carroll, Perry B. Clark, Carroll Gibson, Ray S. Jones II, John Schickel, Wil Schroder, Dan "Malano" Seum; Representatives Joseph M. Fischer, Kelly Flood, Chris Harris, Joni L. Jenkins, Stan Lee, Mary Lou Marzian, Reginald Meeks, Suzanne Miles, Lewis Nicholls, Tom Riner, and Ken Upchurch.
Guests: Senator John Schickel; Ed Monahan, Department of Public Advocacy; Rebecca DiLoreto, Kentucky Association of Criminal Defense Attorneys; Amy Hannah, President Elect of the Kentucky Association of Criminal Defense Attorneys; Judge Tim Philpot, Fayette County Family Court; and Dee Robinson, Kentucky Citizens Against Animal Abuse and Domestic Violence.
LRC Staff: Katie Comstock, Alice Lyon, Chandani Kemper, Matt Trebelhorn, Dale Hardy, Elishea Schweickart, and Brad Gordon.
Criminal Justice Policy Issues and the State of Kentucky’s Public Defense
Public Advocate Ed Monahan, with the Department of Public Advocacy (DPA), stated that DPA works in a bipartisan manner for common sense, evidence-based criminal justice reform. He expressed DPA’s appreciation for the legislature and to Governor Bevin for the continued support of DPA.
Mr. Monahan also noted that DPA, along with many others nationally, continue to propose a realignment of funds used for correctional purposes. If these funds are restructured, they can be used to achieve better outcomes in Kentucky’s justice system. Two ways to achieve substantial savings that Mr. Monahan proposed were: reducing prison admissions, including revocations to prison from probation and parole, and reducing the length of stay of inmates, including those convicted of serious and violent crimes. For 2016, the number of people incarcerated is above the projected number and funding levels, which will cost Kentucky more money at the end of the fiscal year and is unnecessary.
Mr. Monahan discussed trends in Kentucky. From 1985 to 2015, the crime rate declined by 19 percent, and the violent crime rate declined by 28 percent. From 1985 to 2014 the United States imprisonment rate increased 133 percent, more than doubling; a Kentucky’s imprisonment rate increased 371 percent. DPA suggested several policies to help improve these trends:
· Realign existing correctional resources towards scientifically-informed treatment;
· Lower crimes and penalties;
· Incentivize release of low and moderate risk persons;
· Increase re-entry support;
· Reform penal code;
· Find a way to have a financially unified statewide correctional system;
· Increase theft levels up to even $2,500;
· Modify persistent felony offender (PFO) statutes reach.
Mr. Monahan spoke of DPA’s support in creating a gross misdemeanor. This would be more serious than a Class A misdemeanor but not a felony. The characteristics of a gross misdemeanor could include; sentence up to 24 months, presumptive probation, supervision up to 36 months by the Department of Corrections, expungable, and extraditable. DPA supports modifying mandatory minimum sentences. He recommended exemption of Class D felonies, a single class of PFO, two prior separate felony convictions, eliminating the 10-year mandatory minimum, and giving juries the discretion to decline PFO.
Mr. Monahan discussed the state of Kentucky’s public defense. There are 33 trial offices serving 120 Kentucky counties. This causes logistical challenges for the public defenders given their large number of caseloads. DPA hopes to have at least 57 offices in the next five to ten years, which will allow funds to be spent more efficiently.
Mr. Monahan stated that DPA’s return on investment is high, possibly the highest of any agency in Kentucky. DPA spends $267 per new trial case, $327 per conflict case, and sees a $5.66 return for every $1 invested in the Alternative Sentencing Workers. The social workers focus on clients who may have mental health issue or substance abuse issue.
Mr. Monahan explained that while DPA is grateful for all that the legislature has done for their agency, more help is needed. This includes: reducing workloads, increasing compensation to private attorneys doing conflict representation, increasing defender staff salaries, moving to 57 trial offices, and allowing DPA Attorneys to have cell phones when visiting clients in jails.
Responding to a question from Senator Seum, Mr. Monahan stated that the FBI has a standard set of rules for when criminal cases are reported. This information is sent to the FBI by the Kentucky State Police.
Important Recommendations in Pursuit of Fair and Constitutional Criminal Justice Policies in our Commonwealth, presented by KACDL: the Perspective of the Only All-inclusive Criminal Defense Organization in Kentucky
Rebecca DiLoreto and Amy Hannah, with the Kentucky Association of Criminal Defense Attorneys (KACDL), spoke before the committee. KACDL is the only statewide all-inclusive criminal defense lawyer group in Kentucky. Guiding values for KACDL include: protection of constitutional liberty interests, fairness and justice for all persons accused of crimes in the Commonwealth, comprehensive penal code reform, and sharing the perspective of our clients and their families.
Ms. DiLoreto spoke about how KACDL supports evidence-based, full scale penal code reform. She also suggested that it be funded through taxpayer money for work already performed by highly skilled criminal justice policy analysts, initially prepared by Professor Paul Robinson and vetted through the Kentucky Criminal Justice Council. Ms. DiLoreto suggested that the Penal Code needed to be reformed due to the fact that it was written 42 years ago and many changes have happened since that time. KACDL does not believe this project should be rushed but carefully examined. KACDL also suggested a penal code task force, which should include the Judiciary Committee Chairs and members, along with law professors and criminal policy analysts from Kentucky’s premier state colleges and universities.
KACDL suggested a Young Adult Offender Task Force, to look at offenders aged 18 to 25, who represent 12 percent to 17 percent of the prison population. Ms. DiLoreto noted that a person does not mentally mature until a person is in their mid to late twenties. Class C and D felons, many of whom are young adult offenders and some of whom are youthful offenders, languish in our jails, and that parole grant rates have been steeply declining. Creating a young adult programming element can direct resources to this population in and outside of our institutions. KACDL suggests that Kentucky repurpose its resources, which will help to provide employment, education, substance abuse treatment, and re-entry programming that is essential for the success of our youthful offenders and young adult offenders.
Ms. DiLoreto spoke about KACDL’s belief that community is key, even in institutions. Volunteers are an intricate part of the rehabilitation process. They spend time in the facility providing various services: religious services, pet therapy, mentoring, teaching fly fishing and fly tying, meditation, educational programming, and life skills classes. Those who would like to volunteer go through an application process and must attend four hour orientation training before entering a facility. Studies have shown that connections with well-trained, volunteer-led support teams reduces the rate of recidivism and produces productive community members.
Ms. Hannah discussed KACDL’s position on the proposed bill known as Marsy’s Law. KACDL does not support Marsy’s Law, cautioning that a constitutional amendment is a rare and drastic measure, and that KACDL believes it is unnecessary. Victims have over 150 statutory rights along with having a codified Bill of Rights. Victims also have a right to a victims advocate, which are located all over Kentucky. Reducing the rights of accused persons and labeling them guilty before a trial or plea is abusive of a citizen’s individual rights of our citizens. KACDL is not anti-victim, but that this measure is drastic and KACDL urges members to strongly consider before acting on the bill.
Ms. Hannah spoke about reentry post incarceration supervision, and suggested using evidence-based data. Ms. Hannah mentioned unintended consequences of House Bill 463, including that an offender who receives an escape conviction is now subject to an additional year of post incarceration supervision listed under KRS 532.400, which has not worked the way it was meant. The practical effect of reentry post incarceration supervision is that people who are late or walk away are convicted of Class D Escape Second Degree and cannot earn credits to reduce their sentences.
Ms. Hannah discussed the heroin epidemic, stating that the epidemic cannot be fixed by incarcerating all users and that treatment is the key. Approximately 75 percent of heroin users started on the road to addiction with prescription drugs, and that addiction is a chronic disease and must be treated accordingly. Collaboration is key to winning against this epidemic. There is a need for more treatment facilities in Kentucky. Jails cannot keep being used as treatment facilities, and there has to be better access to treatment programs and medical assistance.
Ms. DiLoreto spoke to the committee about KACDL’s support for the creation of gross misdemeanors. KACDL sees gross misdemeanors as a small step forward and believes it will be promising based on the evidence. KACDL supports Senate Bill 200 and the continued concern about racial disparities. She urged considering legislation to fix racial disparities within Kentucky’s education, child welfare, and justice systems.
Ms. DiLoreto urged fine-tuning Kentucky’s expungement law. Prior to the new law, Expungement on misdemeanor offenses that were dismissed or offenses that were diverted and then dismissed were granted without Kentucky State Police (KSP) certification. Now persons who have never been convicted must pay for the certification and wait to see if KSP will grant them. KACDL, DPA, and legal aid clinics have collaborated to recommend the following to improve expungement for Kentucky:
· Expand the number of felonies covered;
· Permit expungement of felony offenses that no longer exist and thus are not now named: and
· Reduce the $500 fee, which is the 2nd highest in United States, to $200.
Ms. DiLoreto stated that KACDL urges better alignment in the expungement bill. Better alignment would include removing the certification except where it is requested by the court or the prosecutor.
Marriage: Irretrievably Broken?
Judge Tim Philpot, with the Fayette County Family Court, spoke about divorce proceedings in Kentucky. Judge Philpot has been a lawyer for 39 years, served as a Kentucky State Senator for eight years, and has been a family court judge for 13 years. Judge Philpot proposed changing Kentucky’s divorce law in several ways, including extending the waiting period in divorce cases involving children which would take a case length from 60 days to 180 days. Judge Philpot stated that he began researching marriage in order to write a book several years ago, and realized that Kentucky’s divorce laws contain outdated language that needs to be cleared up.
Judge Philpot stated that there are two questions that need to be answered during a divorce proceeding: Is your marriage irretrievably broken? And, is there any reasonable prospect of reconciliation? The current statute reads that after a divorce hearing the court shall make a finding that a marriage is irretrievably broken, and if one of the parties denies that the marriage is irretrievably broken, the court must consider all relevant factors and make a finding. Although this is written in statute, as far as he is aware, no courts except for his hold such hearings. It is the time to clean this statute up and make it clear that if one of the parties in a divorce case wants to pause the divorce to find out if the marriage is irretrievably broken, the party should have that option. He talked of the research conducted by Dr. William Doherty, with the University of Minnesota, that shows 25 to 35 percent of divorcing parents are not certain that the divorce is the best option to solve their marital problems, about 30 percent of divorcing parents have indicated some interest in reconciliation services, and 10 percent of couples both want to reconcile, which he stated only further shows that couples need more time to figure out their choices before anything is final. A respondent in a divorce deserves to have their voice heard if they are uncertain about the divorce.
Judge Philpot proposed that the waiting period in divorce proceedings be increased from 60 to 180 days, for only cases involving children but not when domestic violence or abandonment has been present. Several other states, including California and New York, have a six month waiting period. Judge Philpot proposed that divorce cases involving children have a 15 minute irretrievably broken hearing to ensure that a marriage is over. About 40 percent of divorce cases in his court have involved children and that although he holds irretrievably broken hearings, he believes every family in Kentucky deserves such hearings.
Judge Philpot stated that although some are opposed to his propositions, he believes there is room to put a pause in divorce hearings, and that the words irretrievably broken mean something. This will give those who still have hope for their marriages a chance to have their voices heard and to be sure divorce is in the best interest for their children.
Responding to a question from Senator Carroll, Judge Philpot stated that everything he is proposing would not apply to divorces where domestic violence is present.
Responding to a question from Senator Schroder, Judge Philpot stated that other judges have given him mixed responses to his proposals. However, he hopes that legislators will go back and speak with judges in their districts and gauge their thoughts on this matter.
Responding to a question from Representative Nicholls, Judge Philpot stated that he does not think a reconciliation conference is something judges should do. Judge Philpot has those in his court fill out a survey and if he discovers that one of the parties wants to save their marriage, he sends them to discernment counseling. Judge Philpot stated that there are only four discernment counselors in Kentucky.
Responding to a question from Representative Marzian, Judge Philpot stated that even if the court makes a finding of domestic violence even without an order in place, his proposals would not apply.
Strengthening Kentucky’s Domestic Pet Protection Laws
Dee Robinson, the Administrator with the Kentucky Citizens against Animal Abuse and Domestic Violence, spoke before the committee about pet protection laws in Kentucky. She stated that she is not an animal rights activist, and does not support the Humane Society of the United States. She stated that she does not support any legislation that would deny hunters their legal rights or traditions, and will not support restrictive legislation regarding animal agriculture on good farmers and breeders.
Ms. Robinson talked about how she promotes human and animal welfare and that she promotes them together because research has proven that intrapersonal violence and domestic pet cruelty are connected. About 71 percent of animal abusers will also abuse humans more vulnerable than them. Animal abusers are also five times more likely to commit violent crimes against people. Although most people live in harmony with their pets, there are people who abuse and express cruelty to animals, and that these people do not distinguish between skin and fur. About 80 percent of women who leave a domestic violence situation report there was animal abuse already present in the home, and 65 percent of domestic violence victims stay in their homes in order to keep and protect their pets from abusers.
Ms. Robinson stated that although animal abusers have the intent to inflict pain onto an animal, their crimes are only misdemeanors and often they are allowed to continue to keep animals, and that this needs to change in order to make Kentucky better. Although animal abusers cannot be incarcerated solely because it is believed they will commit future crimes against humans, the severity of punishment associated with domestic animal abuse can be reconsidered. The prosecution of extreme domestic pet crimes and cross-reporting could be a useful tool in Kentucky’s defense against interpersonal violence.
Ms. Robinson proposed legislation that would modify and expand KRS 525.135 and elevate the punishment for domestic animal abuse to a Class D felony. This legislation must include: gross neglect; excessive abuse and torture; and sexual assault. There are no laws in Kentucky that prohibit the sexual abuse of animals.
Ms. Robinson stated that intent is the key and if the abuser intends to cause extreme pain, neglect, sexual abuse, or death to an animal than their crime should be a felony and not a misdemeanor. To do this, the bill must be carefully drafted and special interest groups must be consulted to be sure that the law does not infringe on their hunting rights. The County Attorneys must be on board so that they will be able to prosecute the crimes. Although these crimes can never be stopped, they can be punished appropriately. She asked for support in the 2017 Regular Session.
Responding to a question from Representative Riner, Ms. Robinson stated that the abortion of pet babies is a personal decision between a pet owner and their veterinarian.
BR 111: Operator’s License Testing and BR 215: Arrest Powers for 4th Degree Assault in a Hospital
Senator Schickel presented two prefiled bills for the 2017 Regular Session to the committee.
Senator Schickel stated that six years ago legislation was passed that allowed peace officers to make warrantless arrest if an officer has probable cause in hospital emergency rooms. These charges were left as misdemeanors but gave officers and hospital security the management tools they needed to control situations in emergency rooms and protect the vulnerable people who are often found there. BR 215, which is prefiled and can be found on the Legislative Research Commissions’ website, expands on the statute to extend these powers to cover hospitals in their entirety.
Linda Robinson, Manager of Innovation and Process Transformation at St. Elizabeth Healthcare, Wayne Turner, Police Chief in Northern Kentucky, and Kim Neighbor, Associate General Counsel at the Kentucky Hospital Association spoke in support of BR 215.
Responding to a question from Senator Carroll, Senator Schickel stated the hospital building itself is the designee, not the person. This allows everyone to be on equal footing.
Responding to a question from Representative Meeks, Chief Turner stated that if an assault takes place in a VA hospital it would depend on the mutual aid agreement between that facility and the surrounding jurisdiction as to who can make an arrest in that facility. If there is no agreement in place then these crimes would be done on a case for case basis.
Responding to a question from Representative Harris, Senator Schickel stated that the bill only covers hospitals.
BR 111 is a prefiled bill that Senator Schickel stated was a timely piece of transparent legislation. It is endorsed by the Kentucky State Police and the Chiefs of Police Association. The bill requires the Kentucky State Police to include instructions on what to do when encountering a police officer in the Kentucky driver’s manual and the Kentucky driving exam. BR 111 does not create any additional offenses.
Responding to a question from Senator Clark, Chief Turner stated this bill is an attempt to initiate dialog between officers and the community.
There being no further business, the meeting adjourned at 12:11 PM.