Call to Order and Roll Call
The 3rd meeting of the Interim Joint Committee on Judiciary was held on Friday, August 4, 2017, at<MeetTime> 10:00 AM, in Room 149 of the Capitol Annex. Representative Joseph M. Fischer, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Whitney Westerfield, Co-Chair; Representative Joseph M. Fischer, Co-Chair; Senators Danny Carroll, Alice Forgy Kerr, John Schickel, Wil Schroder, and Dan "Malano" Seum; Representatives Robert Benvenuti III, Tom Burch, McKenzie Cantrell, Daniel Elliott, Stan Lee, Chad McCoy, Jason Nemes, Jason Petrie, Brandon Reed, and Ken Upchurch.
Guests: Representative Lynn Bechler, Ed Monahan, Rebecca DiLoreto, and Jenna McNeal.
LRC Staff: Katie Comstock, Alice Lyon, Chandani Kemper, Dale Hardy, Crystal Allen, and Elishea Schweickart.
Criminal Defense Issues and Concerns
After being recognized by committee members for his years of service and accomplishments at the Department of Public Advocacy (DPA), Ed Monahan thanked the committee for its support of DPA. He stated that the General Assembly has always welcomed DPA’s policy suggestions and has been understanding with the budget. Without the support of the General Assembly, DPA would not be able to do its job.
Mr. Monahan testified about realigning increasingly expensive incarceration costs with more treatment options. This could be done by:
· Reducing admissions, including revocations to prison from probation and parole; and
· Reducing length of stay including the length of stay for those convicted of serious and violent crimes.
Mr. Monahan stated that while there are some people who need life sentences, many people are serving long incarceration sentences, and evidence shows that there is no benefit.
DPA, on invitation from the Justice Cabinet, had an initial meeting with the Justice Cabinet and the Department of Corrections to discover if the alternative sentencing worker program, which is being used as a national model, could assist with probation issues. There are more than 24,000 people in prison in Kentucky, which is the state’s largest prison population ever. The expense for this amount of inmates is greater than what was budgeted.
Mr. Monahan discussed trends in Kentucky. From 1985 to 2015, the crime rate in declined by 19 percent, and the violent crime rate declined by 28 percent. From 1985 to 2014, the US imprisonment rate increased 133 percent, and Kentucky’s imprisonment rate increased 371 percent. When looking at these statistics on a case-by-case basis, there are 45,602 fewer criminal cases and 14,733 fewer DUI cases. This is a decline of over 5,000 cases per year.
Mr. Monahan shared policy suggestions that DPA believed would improve the Kentucky justice system. These suggestions include:
· Realigning existing correctional resources towards scientifically-informed treatment;
· Lowering crimes and penalties;
· Incentivizing release of low and moderate risk persons;
· Increasing re-entry support;
· Reforming penal code;
· Finding a way to have a financially unified statewide correctional system;
· Increasing theft levels; and
· Modifying mandatory minimum for persistent felony offenders.
Mr. Monahan advocated for the creation of gross misdemeanors. A gross misdemeanor would be more serious than a Class A misdemeanor but not a felony. The characteristics could include a sentence up to 24 months, presumptive probation, supervision up to 36 months, expungeable, and extraditable. A gross misdemeanor system would save money and relieve stress on the justice system.
DPA asked the General Assembly to consider making changes to the death penalty. According to a comprehensive 2011 program audit of the administration of the death penalty in Kentucky, there are several areas that need improvement. These areas include a high error rate, excessive caseloads and low pay for public defenders handling death penalty cases, capitol juror confusion, and lack of data for cases. Mr. Monahan stated that not only was this problematic, but it is also a financial burden to Kentucky.
DPA has 36 public defender offices, with some offices covering up to eight counties at a time. Last year, DPA was appointed to 162,485 new trial cases and provided counsel at the cost of $276 per new trial case. DPA handled 4,538 cases that were contracted out to private attorneys for conflict cases, with funding at $319 per conflict case. This is an extremely high case load with no additional attorneys or additional financial relief. Mr. Monahan stated that, although DPA gets its job done, it is a huge stress on the agency. DPA would like the General Assembly to provide help, including reducing workloads, increasing compensation to private attorneys doing conflict representation, increasing salaries for DPA staff, and allowing DPA attorneys to have cell phones while visiting clients who are incarcerated.
Responding to a question from Senator Westerfield, Mr. Monahan stated that the divergence between the increase in incarceration and the decline in the crime rate is that, on one hand, less crime is committed when more people are incarcerated, but on the other, research is that only about 25 percent of the decline in crime is attributable to increase in incarceration.
Rebecca DeLoreto, with the Kentucky Association of Criminal Defense Lawyers (KACDL), presented suggestions and requests. KACDL is the only statewide, all-inclusive organization of criminal defense lawyers. KACDL’s mission includes:
· Protection of constitutional liberty interests;
· Fairness and justice for all persons accused of crimes in the Commonwealth;
· Comprehensive and sensible criminal justice reform; and
· Sharing the perspective of their clients and their families.
Ms. DeLoreto stated that KACDL cares that Kentucky statutes are constitutional and take into account the appropriate role of counsel. KACDL wants the laws to be guided by data and research to ensure the best possible outcomes for everyone. She thanked the General Assembly for its consideration and efforts to improve the justice system.
KACDL appreciates the work that has been done with the juvenile justice system in Kentucky. The savings that come from juvenile justice are important to note. The number of youth placed in out-of-home facilities has decreased by 43 percent over the last two years. Not only are these youth being kept at home and with loved ones, they are also receiving treatment and support with evidence-based interventions. This allows the more costly residential beds to be opened to more serious offenders. This juvenile justice reform is expected to save taxpayers about $24 million in the first five years.
Ms. DeLoreto discussed expungement, which KACDL supports. Although expungement is working well for many, KACDL hopes that the legislature will consider recalculating the fees required.
Ms. DeLoreto expressed appreciation for Governor Matt Bevin’s “Don’t Let Them Die” (DLTD) initiative. As part of this initiative, Governor Bevin’s office will place painted rocks around Kentucky to raise awareness for Kentucky's opioid epidemic. Painted rocks matter because of their personalization, and it is important to remember that people who are incarcerated--many for drug use--are still people. She urged the committee to place money into law enforcement and communities instead of placing so much money into longer incarceration time for many inmates.
Ms. DeLoreto discussed crime offense levels. Kentucky cannot just look at low level offenders. The entire range of offenses and sentence lengths must be examined because it impacts cost. Some suggestions from KACDL include:
· Addressing and reducing expensive locked custodial care of elderly prisoners;
· Redirecting more of correction’s dollars towards noncustodial rehabilitation and residential substance abuse;
· Stop enlarging the pool of 85 percent parole eligibility.
Ms. DeLoreto stated that one area of penal reform that should be targeted to reduce costs is to end the transfer of juveniles to adult court. Evidence-based studies show that children are developmentally different than adults, and the US Supreme Court has urged that punishment for children be different than punishment for adults. She said that, if members will not end transfers to adult court, they should end automatic transfers, which is important because of the racial disparity with the kinds of cases affected.
The second suggestion for penal code reform is the examination of the young adult offender population. Offenders aged 18 to 25 are the most likely to commit offenses, and that Kentucky should be focused on providing treatment for them. Giving them a chance at treatment and recovery, versus placing them in prison with older inmates who can influence them to commit more crimes, is not only beneficial to the children but will also save the justice system money in the long term.
Ms. DeLoreto discussed pretrial release and fine and court costs. KACDL is concerned people are gaining pretrial release based on their wealth and that nonfinancial conditions of release needs to be considered. She asked the committee to consider fines and court costs, which KACDL is concerned is leading to debtors prisons.
Ms. DeLoreto discussed amendments to Kentucky’s constitution. Marsy's Law should be heavily considered since it is coming from out-of-state sources and the impact could be great. Ms. DeLoreto stated that KACDL expects that Marsy’s Law will be interpreted to be against the rights of the accused, and that this will be a problem because courts of law must be balanced. She suggested that, instead of changing the Constitution, the General Assembly could into consideration locations where victims are not being heard. KACDL is not against victims but believes the justice system must remain fair and balanced.
Ms. DeLoreto discussed Kentucky’s sex offender registry. KACDL believes that the registry needs to only be for offenders who need to be placed on it, and that offenders who could be removed should be. KACDL believes this would make the registry more effective.
Senator Westerfield responded that there is nothing in Marsy’s Law that takes away the presumption of innocence for the accused, but the law creates rights for victims.
Representative Benvenuti responded by asking members to support Marsy’s Law because it gives victims a voice.
Senator Schroder responded by stating he has concerns about Marsy’s Law and hopes to hear more from judges, prosecutors, and the defense bar.
Amending Kentucky’s Age of Consent
Jenna McNeal, Commissioner of the Kentucky Multidisciplinary Commission on Child Abuse, discussed a possible bill that would amend Kentucky’s consent laws by outlawing a 16 or 17 year old from being able to “consent” to sexual intercourse with a person who is at least ten years older. Ms. McNeal thanked the committee for its time and told the story of how she is a teenage rape survivor.
Ms. McNeal stated that her proposal to include the ten year age gap is statistically supported nationwide. Mental development between a 16 or 17 year old is scientifically different than that of an adult who is ten or more years older. Teenagers lack full cognitive growth, harm avoidance, and full understanding of lifelong consequences. Teenage decision making is based on motivation by reward, while adult decision making is based on motivation by harm avoidance; this makes the decision for consent extremely unbalanced between the two. Older teenagers are some of the most high-risk for being sexually assaulted, and often their perpetrators are in their late twenties or older.
Ms. McNeal also spoke on rape in the third degree. Rape in the third degree in Kentucky protects people age 15 and under who are victims of people who are 21 years or older and in a position of power, such as a teacher or coach. Because of this, 16 and 17 year olds are not protected and must prove lack of consent in a court. Ms. McNeal stated that cases where lack of consent must be proven are exceptionally difficult, but if Kentucky changes rape in the third degree, teenagers can have a fallback for protection when there is a ten year age difference between the victim and perpetrator.
Ms. McNeal spoke about questions and concerns some people may have about this law. While people might have a fear of over criminalizing teenagers having sexual intercourse with other teenagers, this law will not have any effect on those situations. This law would only criminalize adults having sexual intercourse with a teenager with a ten year or more age difference. Twenty-two states already have a similar protection.
Sanctuary Cities: 2017 RS HB 501
Representative Lynn Bechler testified about 2017 RS House Bill 501, which he sponsored. He said the intent of the bill is to preclude that any political subdivision, such as a county, city, or institution of higher learning, from having a sanctuary policy. This bill established monetary penalties for entities and individuals who chose to have such a policy.
Representative Bechler stated that there are about 50,000 illegal aliens living in Kentucky. This is about 1.1 percent of Kentucky’s total population, 30 percent of Kentucky’s total immigrant population, and 1.7 percent of Kentucky’s labor force. Since 1990, the illegal alien population has risen more than 45,000 people, many of whom are now living in urban metro areas.
Representative Bechler stated that the illegal alien population has had positive and negative impacts. On the positive side, it is estimated that illegal aliens pay a little over $20 million in sales tax, over $11 million in individual income tax, and more than $5 million in property taxes. On the negative side, Representative Bechler stated that one study estimated that the state and local government incur costs of about $124 million in K-12 education, $25 million in limited English proficiency education, $22 million in justice costs, and $54 million in other costs. He stated that there was a less troubling fiscal note produced by the Legislative Research Commission in 2011 that stated Kentucky only spends about $30 million on illegal aliens. Representative Bechler stated that the numbers demonstrate that the negatives outweigh the positives.
Another potential impact could come from offering in-state tuition rates to illegal aliens. Kentucky law requires that illegal aliens shall be charged the in-state tuition rate. Representative Bechler stated that this conflicts with Section 505 of the federal Illegal Immigration Reform and Immigrant Responsibility Act. Representative Bechler said that it is important to note that, while no universities are listed as sanctuary schools, there have been troubling signs.
Representative Bechler discussed crime and illegal aliens. He said that studies of all immigrants have shown the incarceration rate among immigrant males between the ages of 18 to 39 is 1.6 percent. Drugs, physical violence, and gang activity is often prevalent in sanctuary cities and states.
This bill would not be the first of its kind. Seven other states have laws banning sanctuary cities; of these, two include universities in their bans. In 2017, 22 other states introduced legislation banning sanctuary cities.
Responding to a question from Representative Burch, Representative Bechler stated that he is open to making changes in the legislation, but if 2017 version of the bill would have been carried out by the Justice Cabinet if the bill had passed.
Responding to a question from Representative Burch, Representative Bechler stated that he supports immigration but not illegal immigration.
There being no further business, the meeting was adjourned at 12:01 PM.