Task Force on the Penal Code and Controlled Substances Act


Minutes of the<MeetNo1> 3rd Meeting

of the 2010 Interim


<MeetMDY1> August 11, 2010


Call to Order and Roll Call

The<MeetNo2> 3rd meeting of the Task Force on the Penal Code and Controlled Substances Act was held on<Day> Wednesday,<MeetMDY2> August 11, 2010, at<MeetTime> 12:00 PM, in<Room> Room 171 of the Capitol Annex. Representative John Tilley, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Tom Jensen, Co-Chair; Representative John Tilley, Co-Chair; Secretary J. Michael Brown, Tom Handy, Chief Justice John D Minton, Jr., and Hon. Tommy Turner.


Guests:  Richard Jerome and Jason Newman, PEW Center for the States; Peter Ozanne, Crime and Justice Institute; Colorado Deputy Attorney General Tom Raynes; Colorado District Attorney Don Quick; and Christy May, Lexington Rescue Mission.


LRC Staff:  Norman Lawson Jr., Jon Grate, Joanna Decker, Kyle Moon and Rebecca Crawley.


The meeting was called to order by Representative Tilley, the roll was called, a quorum was present, and the minutes were approved by voice vote.


Presentation on the Prison Population Projection

The first speaker was Jason Newman of the PEW Center on the States who spoke on the Preliminary Kentucky Prison Population Projections prepared by James Austin, Wendy Naro, and Roger Ocker of the JFA Institute.  He described the projections as being influenced by external factors such as offenders coming into the system and internal factors such as who goes to prison and how long they stay.  Factors include demographics (the size of the at risk population--males 15-25), crime, arrest, court processing, and correctional policies and the report is disaggregated by gender, and various offense groups such as property, drug, and violent offenses and the return of parole violators to prison.


Some of the information from the report included  Kentucky's crime rate is lower than the national average, has remained flat for several years with a recent increase in property crime and rape; Kentucky's incarceration rate is higher than the national average; Kentucky's rate of incarceration of females is the 6th highest in the nation; Kentucky courts send offenders to prison at a higher rate than the national average with 59.63 percent for Kentucky against a national average of 41 percent; admissions doubled between 1999 and 2010; from 2000 to 2008 there was a 45 percent growth in prison population; and there has been a population decline from 2008 to the present due to a higher parole rate.


Mr. Newman observed that prison admissions are difficult to predict, the current estimates include a 1,000 inmate increase to 21,854 inmates in the next 10 years if current trends continue and an increase to 27,209 inmates if prior trends are reinstated.  Mr. Handy asked several questions about recent South Carolina statutory changes, and Mr. Richard Jerome of the PEW Center on the States responded.


Controlled Substances Act Legislation in Colorado

The next speakers were Colorado Deputy Attorney General, Criminal Justice Section, Tom Raynes and Colorado District Attorney, 17th Judicial District, Don Quick.  Mr. Raynes and Mr. Quick alternated presenting various points of recent controlled substances legislation in Colorado and the process that was used to enact the legislation.


Several years ago Colorado was faced with declining revenues and a prison population which was doubling every nine years, recidivism was high, and drug abuse and drug related offenses were a major problem.  In 2010, Colorado spent more on corrections than it did on higher education.  In 2008, the legislature created the Colorado Commission on Criminal and Juvenile Justice (CCCJJ) consisting of 25 members representing major stakeholders which was supplemented by various work groups to assist in the creation of various proposals to be presented to the commission.  The commission's mission is to enhance public safety, to ensure justice, and ensure the cost-effective use of public resources. The commission used an evidence-based approach to the new legislation. 


HB 1352 created a new crime of simple possession, increased the threshold amounts on controlled substances for personal possession, eliminated aggravators for second and subsequent offenses, increased thresholds on marijuana offenses, increased the penalty for dealing to minors, increased the penalty for possession of date rape drugs and directed the immediate savings of $1.4 million to treatment programs; HB 1081 expanded the offense of money laundering from drug activity to all criminal activity; HB 1347 created minimum mandatory sentences for multiple DUI offenses and increased potential jail time for probation violations as an intermediate compliance based sanction; HB 1338 provided eligibility for probation for offenders with two or more prior felonies; HB 1373 created sentencing changes for the crime of escape and defining inmate status; and HB 1374 changed parole by clarifying eligibility, increasing ability to get earned time on lower level felonies and required use of use of intermediate sanctions if there is no threat to public safety.


Two task forces were established, a sentencing policy task force and a drug policy task force.  Factors which made the task force successful included working groups were appointed with an eye toward reasonable but strong personalities on all sides of the various issues; chair positions were carefully assigned; clear expectations of participation, results, and concrete proposals were set; and frequent and intense working group meetings were held.  Battles over ideas were vigorously fought at the working group level first; more issues were argued and resolved in the task force meetings one by one as presented; by the time ideas are presented to the CCCJJ for formal vote there is significant buy in; and proposals recommended by the CCCJJ move toward bill paper with strong support and a high level of credibility.


The bills passed easily in the legislature.  The end result was to include juvenile programs, expand community corrections, and programs for the mentally ill as well as drug offenders.  Senator Jensen asked why several proposals were used rather than one proposal to which the reply was that it permitted focusing on specific topics in each bill.


Task Force Discussion of the Controlled Substances Act

The next speaker was Mr. Peter Ozanne of the Crime and Justice Institute who spoke on the process being used to review and make recommendations for change to Kentucky's Controlled Substances Act with goals of reducing crime and risks to public safety, increasing the cost-effectiveness of the state's corrections system, and freeing-up resources to reinvest in evidence-based practices.


Some of the questions to be answered include whether the right drug offenders are in prison, considering risks and needs; and whether the penalties are consistent with research on drug abuse and addiction (e.g. the "disease of relapse").


Mr. Ozanne presented Kentucky statistics on Drug Offense Admissions in FY 2010 and Drug Offenders in Prison as of June 30, 2010.  He discussed nine options for consideration in Kentucky, including Option 1. Review the classification of drug offenses under the Controlled Substances Act (Chapter 218A); Option 2.  Establish specific quantities for drugs under KRS Chapter 218A, including lower penalties for possession of small amounts and increased penalties for possession of larger amounts; Option 3.  Refine the statutory definition of "trafficking" for commercial trafficking by dealers as opposed to street-level "peddling" by users; Option 4.  Reclassify offenses involving less dangerous drugs, trace amounts of drugs and drug paraphernalia; Option 5.  Refocus the scope of "drug free zones" so that it is aimed at sales to minors; Option 6.  Reconsider sentencing enhancements for second and subsequent offenses; Option 7.  Limit multiple offenses arising out of the same criminal episode; Option 8.  Review enhancement for possession of a weapon during a drug offense; and Option 9.  Account for fiscal impacts of drug laws.


The task force recessed at 1:50 PM to attend a press conference announcing PEW Public Safety Project assistance to the Task Force.


The meeting reconvened in the Supreme Court Conference Room following the press conference.  The members discussed having work groups consisting of jailers, judges, prosecutors, law enforcement, treatment programs and other stake holders to assist the task force in its deliberations.  Chief Justice Minton recommended considering Controlled Substances Act changes first.  Various other members suggested topics to be considered and there was a general consensus not to attempt to amend the entire Penal Code.

The meeting adjourned at 4:00 p.m.