Call to Order and Roll Call
The 4th meeting of the Interim Joint Committee on Judiciary was held on Friday, September 15, 2017, at 10:00 AM, in Room 169 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; Representative Joseph M. Fischer, Co-Chair; Senators Danny Carroll, Alice Forgy Kerr, John Schickel, and Wil Schroder; Representatives Robert Benvenuti III, Larry Brown, Tom Burch, McKenzie Cantrell, Daniel Elliott, Angie Hatton, Joni L. Jenkins, Stan Lee, Chad McCoy, C. Wesley Morgan, Kimberly Poore Moser, Jason Nemes, Jason Petrie, Brandon Reed, Kevin Sinnette, and Ken Upchurch.
Guests: Secretary John Tilley, Commissioner Carey Cockerell, Steven R. Gold, Stacy Tapke, Mike Foster, Chris Cohron, Rob Sanders, Robert Silverthorn, Stephanie Hold, and Dave Hopkins.
LRC Staff: Katie Comstock, Alice Lyon, Dale Hardy, Matt Trebelhorn, and Elishea Schweickart.
Prosecutorial Issues and Concerns
Chris Cohron, Commonwealth’s Attorney, and Rob Sanders, Commonwealth’s Attorney, testified that Commonwealth’s attorneys recently received a request from the executive branch for a 17.4 percent budget cut. Mr. Cohron stated that a 17.4 percent cut is approximately $8.5 million dollars, and that it would have a sufficient negative impact on all 57 Commonwealth’s attorney offices. The total operating budget for each office is $77,000. The salaries of elected prosecutors cannot be reduced due to percentile law, therefore the cut must occur from the remaining 61 percent of their budget. A Commonwealth’s attorney is a constitutional officer, which means there are Court of Appeals decisions that address the issue of compensation. Kentucky’s Constitution prohibits change in compensation midterm, notwithstanding reduction of duties.
Mr. Cohron stated that, when it comes to the budget, realistically, Commonwealth’s attorneys would have to cut about 43 percent of their staff, which is not doable. Many of the offices are already extremely underfunded, which has been challenging. Another option is to close the Commonwealth’s attorney offices until the beginning of the next fiscal year.
Mr. Cohron testified about the Kentucky State Police’s 2016 Crime Report, which indicates the following:
• 280,581 serious crimes;
• Serious crime committed every approximately every 2 minutes;
• Homicide offenses committed approximately every 18 hours;
• Motor vehicle thefts committed approximately every 49 minutes;
• Robbery committed approximately every 2 hours;
• 45 percent of violent crimes cleared by an arrest;
• 1,732 police officers assaulted;
• Arrests for totaled 395,695 counts;
• 23,443 counts of DUI violations; and
• 75,710 counts of drug violations in 2016.
Mr. Cohron and Mr. Sanders praised the legislature for funding the rocket docket program. The rocket docket program is a method of taking cases, triaging them immediately, making treatment available as soon as possible, and trying to make sure offenders do not reenter the criminal justice system. The rocket docket program has been successful. Estimated rocket docket savings from the inception in July 2015 through the end of fiscal year 2018 will approach $50 million, this is direct savings to local jails. Mr. Sanders encouraged members to consider making the rocket docket programs a permanent part of the budget, as well as expanding them to all 57 circuits in Kentucky.
Mr. Cohron spoke about the impact of reducing the staff in prosecutor’s offices. The funding of Commonwealth’s and County Attorney staffs under the Unified Prosecutorial System is devoted exclusively to criminal prosecution. Fewer staff would impact court appearances and timely prosecution. The impact of the cuts would be felt by vulnerable citizens and victim advocates. Proposed changes in victim’s rights, such as Marsy’s Law, will further add to the responsibilities of prosecutors. Reduction of staff would make ensuring victims’ rights difficult if not impossible.
Mr. Cohron stated that a reduction of full time employees results in reduction in pension contributions. For the approximately 200 possible employees lost, $2 million of the employer share would also be lost in fiscal year 2018. The Unified Prosecutorial System must be fully funded for the employer share if not retirement cost in the next biennium, or a similar negative impact will result.
Responding to a question from Representative Petrie, Mr. Sanders stated that Commonwealth attorneys cannot afford to take any budgets cut because they are already short on funds. Responding to a follow up question from Representative Petrie, Mr. Sanders stated that the current caseloads are excessive compared to the American Bar Association’s recommendation.
Responding to a question from Representative Nemes, Mr. Cohron stated that, Kentucky’s crime rates are at a high, and that, with all due respect to the FBI, he does not believe the FBI’s statistics are accurate.
Responding to a question from Representative Moser, Mr. Sanders stated that he supports reinvesting the funds that come from the rocket docket program.
Responding to a comment from Representative Benvenuti, Mr. Sanders stated that he fully supports more funding for state troopers and the justice system as whole because the system is grossly underfunded.
Steven R. Gold, Henderson County Attorney, Stacy Tapke, Kenton County Attorney, and Mike Foster, Christian County Attorney testified that there are 120 county attorney offices in Kentucky, with 538 employees and 120 elected officials. County attorneys are involved in 100 percent of all criminal cases, and as of fiscal year 2016, the caseload data includes:
• More than 120,000 misdemeanor cases filed;
• Nearly 300,000 traffic cases filed;
• Almost 17,000 juvenile cases filed; and
• Over 41,000 family court cases.
More than 515,000 cases were filed in 2016. Over the years county attorneys have received additional responsibilities, including the expansion of EPOs and DVOs.
Mr. Gold discussed Marsy’s Law, a proposed bill for the 2018 Regular Session. County attorneys support the motive for the bill, and supporting victims is a core job of prosecutors. However, they worry about the success of its implementation, especially if funding is cut.
Mr. Foster spoke about how the proposed budget cuts would affect county attorneys. The annual operating budget for each office is $3000, and this does not include employee salaries which makes up 99.4 percent of the county attorney salaries. The proposed budget cut for county attorneys would equal to $7.4 million dollars, and would only be open to personnel cuts. This would mean 48 percent reduction in staff budgets, or:
· $61,800 per office;
· 12 offices have an annual staff salary budget including FICA/retirement and Health Insurance under $60,000 annually;
· 29 more offices would have to lay off all staff on October 1, 2016 to meet the $61,800; and
· Lost contributions to KERS of approximately $1.9 million for fiscal year 2018.
Mr. Foster stated that the budget cut would have an impact on the justice system, including:
• Delays in court proceedings;
• Docket backlogs and longer jail stays;
• Delay in fines and fees collected currently contributing to the General Fund; and
• Loss of Rocket Docket and other programs as resources are reallocated to meet most immediate needs.
Ms. Tapke spoke about the concerns many county attorneys have about the proposed budget cuts. The proposed cuts are causing stress. Many county attorneys have begun to consider finding employment elsewhere because they are uncertain of their futures.
Responding to a question from Representative Morgan, Mr. Gold stated that the county attorneys cannot take a budget cut without cutting their employees, and that they are already understaffed.
Responding to a follow-up question from Representative Morgan, Mr. Gold stated that their other forms of raising revenue include collecting on bad checks, delinquent taxes, and traffic safety programs. This percentage of income is determined office by office.
Responding to a question from Senator Schroder, Mr. Gold stated that county attorneys do not receive any federal money for heroin cases or the rocket docket.
Responding to a follow-up question from Senator Schroder, Mr. Foster stated that employee furloughs would be damaging to the justice system and that they would lose all of their prosecutors.
Department of Juvenile Justice: Population Reductions, Facilities Closures, Youth Advocacy Programs, and Incentive Funds
John Tilley, Secretary if the Justice and Public Safety Cabinet; Carey Cockerell, Commissioner of the Department of Juvenile Justice (DJJ); and Jason Reynolds, Legislative Director; presented before the committee.
Secretary Tilley stated that Kentucky has tried to incorporate juvenile justice strategies from Texas, a state that has had great success with their juvenile justice system. Much of Kentucky’s success came from the passage of Senate Bill 200 in 2014.
Secretary Tilley stated that these changes are not only bettering Kentucky’s youth, but also producing savings that are able to be reinvested into the system and into their frontline workers. This has been done with no threat to public safety.
Commissioner Cockerell, who has been with DJJ for a year, spoke more in depth about the changes. These changes include:
• Development and administration of risk and needs assessments on all youth following adjudication on public offense;
• Statutory limitations for commitment eligibility;
• Probation and commitment length capped for youth adjudicated on misdemeanors and Class D felonies, excluding sexual offenses and offenses involving a deadly weapon;
• Limits for how long youth committing misdemeanors and Class D felonies can be placed out-of-home, excluding sexual offenses and offenses involving a deadly weapon;
• Misdemeanors now have a max of four months out-of-home treatment for a 12 month commitment;
• Class D Felony offenders now have a max of eight months out-of-home treatment for a 18 month commitment; and
• Use of risk assessment, graduated responses, evidence-based programming, and changes to treatment planning process.
Commissioner Cockerell also explained the Risk and Criminogenic Needs Assessment (RCNA). RCNAs are done for every juvenile that is adjudicated in Kentucky, and the results are done on a bell curve. RCNAs from November 2015 through September 2017 show 2221 juveniles as low risk, 3603 juveniles as moderate risk, and 968 juveniles as high risk.
Secretary Tilley thanked the committee, legislature, and stakeholders for making everything DJJ has done possible.
Commissioner Cockerell also spoke about RCNA disposition outcomes, these include:
· 14 percent of youths sentenced to DJJ are low risk;
· 48 percent of youths sentenced to DJJ are moderate risk;
· 38 percent of youths sentenced to DJJ are high risk;
· 14 percent of youths committed to DJJ are low risk;
· 37 percent of youths committed to DJJ are moderate risk;
· 49 percent of youths committed to DJJ are high risk;
· 15 percent of youths probated to DJJ are low risk;
· 70 percent of youths probated to DJJ are moderate risk; and
· 15 percent of youths probated to DJJ are high risk.
DJJ shows an approximate 60 percent reduction in total population from Fall 2013 through May 2017. The total population includes detained youth, probated, probated/suspended commitments, commitments, and sentenced cases. In fiscal year 2013, there were 5,317 admissions to the detention centers. In fiscal year 2016, there were 3,247 admissions to the detention centers. In fiscal year 2013, there were 493 new commitments to DJJ. In fiscal year 2016, there were 253 new commitments to DJJ. Also, excluding youth who are committed as juvenile sexual offenders and youth with offenses involving a deadly weapon, DJJ has seen a 73 percent reduction in youth development center placements for low level offenders who were impacted by Senate Bill 200. The current residential length of stay has also seen a reduction.
DJJ has begun using evidence-based practices as mandated by Senate Bill 200. These include:
· Utilizing the Correctional Program Checklist;
· Staff training on the Principles of Effective Intervention (PEI);
· Piloting Aggression Replacement Training (ART) in two settings: residential and day treatment programs;
· Utilizing Cannabis Youth Treatment (CYT) in its residential programs;
· Using motivational interviewing (MI) in both community and residential programs for both mental health and substance abuse needs; and
· Using Seven Challenges, which is a practice for substance abuse.
Commissioner Cockerell spoke about fiscal reinvestment. Savings achieved by DJJ as a result of a reduction in the population are reinvested into community supervision and aftercare services, day treatment centers, and the fiscal incentive program established in KRS 15A.062. In July 2017, $1 million was transferred by DJJ to the Justice and Public Safety Cabinet for the Fiscal Incentive Fund. This will allow judicial districts to apply for funds through a competitive bid process to implement community-based, evidence-based programming to meet needs in local communities.
Commissioner Cockerell finished the presentation by speaking briefly about challenges still faced by DJJ. These challenges include: maintaining qualified and trained staff with 100 percent turnover of front-line youth workers, competing with higher local minimum starting salaries of jails, recruitment and retention of qualified licensed mental health staff, lack of applicants due to low pay grade and competition with the private sector, and addressing disproportionate minority contact (DMC) within the juvenile justice system.
Overview of KASPER
Robert Silverthorn, Inspector General, Stephanie Hold, Director of the Division of Audits and Investigations within the Office of the Inspector General, and Dave Hopkins, KASPER Administrator with the Office of the Inspector General, presented a KASPER overview.
Kentucky All Schedule Prescription Electronic Reporting (KASPER) is Kentucky’s prescription drug monitoring program (PDMP). KASPER tracks schedule one through schedule five controlled substance prescriptions dispensed within the state as reported by pharmacies and other dispensers. It is a real-time web accessed database that helps address the misuse, abuse, and diversion of controlled pharmaceutical substances. KASPER data is one to three days old, and dispensers have one business day to report. Reports are available to authorized individuals typically within 30 to 45 seconds. KASPER tracks:
· Retail pharmacies dispensing into KY (in-state, mail order, Internet);
· Hospital emergency departments dispensing controlled substances to an ED patient;
· practitioners administering or dispensing a controlled substance in the office; and
· Dispensing from Department for Veterans Affairs pharmacies.
Mr. Hopkins said that KASPER does not track:
· Methadone administered at a federally regulated methadone clinic;
· Controlled substances dispensed for administration to a patient in a hospital, long-term care facility, jail, correctional facility or juvenile detention facility;
· Pseudoephedrine (tracked separately via NPLEx);
· Dispensing by military pharmacies; and
· Schedule I or other illegal drugs.
Mr. Hopkins spoke about how a KASPER report is requested, which is available 24 hours a day, seven days a week. A KASPER report includes:
· Patient name and date of birth;
· Drug name, dosage, days’ supply, date prescription written, and date prescription filled;
· Prescriber name and city;
· Dispenser name and city; and
· Morphine milligram equivalent data.
Ms. Hold spoke about several changes coming to the KASPER program in 2018. Authorized practitioners and pharmacists will be able to access available positive drug toxicity screen results related to a patient’s suspected drug overdose. KASPER will allow authorized users to access data on a patient’s drug convictions as provided by the Administrative Office of the Courts.
Responding to a question from Senator Westerfield, Mr. Hopkins stated that there is no training required for a judge, law enforcement officer, or prosecutor to access a KASPER report.
Responding to a question from Representative Cantrell, Mr. Hopkins stated that an individual must provide a social security number to receive scheduled drugs.
Responding to a question from Representative Benvenuti, Mr. Silverthorn stated Narcan would be difficult to track and report because there is so much of it. The Office of the Inspector General is trying to find a way to add Narcan to the KASPER system.
There being no further business, the meeting was adjourned at 12:27 PM.