Call to Order and Roll Call
The 4th meeting of the Task Force on the Penal Code and Controlled Substances Act was held on Wednesday, September 8, 2010, at 1:00 PM, in the Old Laurel County Courthouse, London, Kentucky. Senator Tom Jensen, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Tom Jensen, Co-Chair; Representative John Tilley, Co-Chair; Secretary J. Michael Brown, Tom Handy, Chief Justice John D Minton, Jr., J. Guthrie True, and Hon. Tommy Turner.
Guests: Wayne Ross, Shepherds Shelter; Paul Braden, Circuit Judge, Corbin; Bill Patrick, County Attorney’s Association; Bill Doll, KY Medical Association; Mike Vance; Lucas Vance; Betsy Helm and Bruce McMichael, Louisville Metro Government; Charles George, KY Chamber of Commerce; Janice Steele, Commonwealth’s Attorney, Corbin; Chris Cohron, Commonwealth’s Attorney, Bowling Green; Ed Monahan and Laura Plummer, Department of Public Advocacy; Jenifer Noland, Wescare; Ron Geoghegan, McCarthy Strategic Solutions; and Lawrence Kuhl, Laurel County Judge-Executive.
LRC Staff: Norman Lawson Jr., Jon Grate, Joanna Decker, Ray Debolt, Jr., and Rebecca Crawley.
Chairman Jensen called the meeting to order, the roll was called, a quorum was present, and the minutes were approved.
Presentation on Key Offenses Driving the State Prison Population
The first speaker was Mr. James Austin from the JFA Institute who made a presentation on Kentucky criminal justice statistics and predictions for prison population growth. Mr. Austin said his preliminary projections were based on demographics, crime, arrests, court processing, and correctional policies, presented by gender and various offense groups, and the final projections were subject to changes made by the General Assembly and the actions of state agencies.
Mr. Austin said since 1960, Kentucky’s crime rate has been less than the national crime rate, the U.S. and Kentucky violent and other crime rates peaked in 1991 and 1992, and the Kentucky violent crime rate, although lower than the national average, has risen slightly recently.
Based on Kentucky statistics, he concluded that length of stay is not a significant cost driver because it is declining and below the national average, but the administrative costs of processing inmates in and out of the system is an increased cost; there has been a marked increase in the number of arrests and court cases, most of the arrests are for drug offenses and “other” offenses, there has been an increasing number of adult arrests, an increasing number of law enforcement personnel, and an increase in felony court dispositions with a high prison disposition rate of 60 percent coupled with low use of probation is a significant cost driver; there is a considerable variation in prison disposition rate by county; there is a very high local jail population which is twice the national average; the number of inmates returned to prison for technical parole violations is high; and the non-violent prison population groups are high. He said changes in these trends that meet other state practices would lower the current prison population by 4,000-5,000 inmates.
Mr. Austin said one of the largest cost drivers of the Kentucky prison population is the high adult arrest rate which has increased rapidly in recent years and is currently 900 per 100,000 population, as compared with a national average of 600 per 100,000 population. Since 2001, adult arrests have increased by 32 percent, drug arrests have increased by 70 percent and Part II, All Other Arrests, increased dramatically by 375 percent. He noted there has been a 32 percent increase in the number of law enforcement officers during the same time period, which increases the number of arrests.
Mr. Austin said length of stay is not a major cost driver of the Kentucky prison population because the average is relatively short compared to other states. The average decreased from 1.9 years in 1999, to 1.4 in 2010, which is significantly lower than the national average of 2.5 years. But he said there is a significant cost associated with processing new inmates in and out of the system. He said District Court felony and misdemeanor dispositions decreased from 2000-2008, while Circuit Court felony dispositions increased, averaging 60 percent. There is a wide disparity of prison disposition rates by county ranging from 85 percent in Boyle County to 3 percent in Carroll County in 2009. In 2009 Circuit Courts sent 63 percent of convicted offenders to prison, 12 percent to jail, 23 percent were granted probation, and 1 percent had other dispositions.
Mr. Austin said there has been a dramatic increase in the number of state prisoners housed in the county jail system, one of the highest in the nation. In Kentucky 34 percent of felony offenders sent to prison are actually housed in county jails, second only to Louisiana which houses 46 percent of its state prisoners in county jails. The national average is 6 percent. He noted Louisiana and Kentucky have similar funding structures which pay jails a per diem to house state inmates. The Kentucky jail population increased from 3,850 prisoners in 2000 to 7,347 in 2008, making it a significant cost driver in the corrections system.
Larue County Judge-Executive Turner observed the increase in misdemeanants sent to county jails and the increase in persons arrested, many of whom spend time in jail prior to trial, create a significant financial burden for counties.
Another driver of prison population is the parole grant rate. In FY 2000, the parole grant rate was 25 percent, with 36 percent deferment, and 39 percent serve out. In FY 2010 the parole rate was 53 percent, with 28 percent deferment, and 19 percent serve out. Mr. Austin said the higher parole grant rate has helped lower the prison population. Also, the high number of persons violating parole or probation is a significant cost driver of the prison population. He said approximately 30 percent of the new admissions to prison (2,700) are parole violations and it is estimated another 25-30 percent (2,000-3,000) are probation violations, accounting for 55-60 percent of new prison admissions (14,361 in 2010) yearly.
Senator Jensen asked what constituted a technical parole violation. Mr. Austin said it is a legal definition meaning a person is returned to prison by the Parole Board for violating their parole conditions. He said many times when a parolee commits a new crime, the prosecutor will drop the charges in lieu of the parole violation, effectively transferring the cost of housing the prisoner from the county to the state. He said parole violators generally spend 8-12 months in prison before they are released again. Mr. Austin said further research is needed to determine exactly what constitutes a technical violation of probation and parole under Kentucky law. He said other states have implemented good time credits and incentives for persons on probation and parole and it has successfully helped lower the new prison admissions rate. He predicted Kentucky’s prison population will rise slowly over the next years and the current population of 20,763 will increase to 22,132 by 2020 if present trends continue. Mr. True said the data showing more arrests and lower case dispositions probably reflects charges dropped by prosecutors.
Discussion on Controlled Substances Act Policy Options
The next speaker was Mr. Peter Ozanne of the Crime and Justice Institute who presented recommendations for changes to the Controlled Substances Act. Mr. Ozanne discussed proposals which would give Kentucky opportunities for justice reinvestments in cost-effective corrections strategies which would result in improvement to the state’s justice system and protect the public safety of Kentucky’s citizens. The Washington State Institute for Public Policy observed that one additional dollar invested in incarcerating a drug offender would return $0.37 in terms of reduced crime, while one dollar invested in community-based supervision and drug treatment programs returned between $7 and $10 in benefits. Mr. Ozanne said reserving the most costly sanctions for violent offenders and offenders engaged in commercial drug enterprises, reallocating corrections resources to community-based supervision and treatment programs for nonviolent offenders with abuse problems, using evidence-based practices and assessment of offender danger and needs, and evaluations of programs and program results has reduced recidivism and lowered the crime rate in other states.
Mr. Ozanne presented nine recommendations for changes to Kentucky’s Controlled Substances Act. He said these recommendations are offered as a starting point for the task force and are based on strategies used by other states which have been successful. The recommendations include (1) Review the classification of drug offenses under KRS Chapter 218A, requiring treatment for offenders, expungement of convictions, and evaluation of supervision and treatment programs; (2) Establish specific quantities for drugs under Chapter 218A including lower penalties for possession of smaller amounts and increased penalties for possession of larger amounts; (3) Distinguish between persons who are users selling to support their habit and persons who are large scale commercial drug traffickers. Define circumstances which imply commercial drug trafficking; (4) Reclassify offenses involving less dangerous drugs, trace amounts of drugs, and drug paraphernalia; (5) Refocus the 1,000 yard "school zone" to 1,000 feet, exclude private residences within school zones, increase penalties for adults selling to minors within a school zone; (6) Reconsider sentencing enhancements for second and subsequent offenses either by elimination of enhancements or requiring subsequent offense to occur within "X" number of years from prior offense. This would also avoid double enhancement through use of the drug enhancement and the persistent felony offender statute; (7) Review enhancement for possession of a firearm during a drug offense to require a more specific "nexus" between the offense and the possession of the firearm or eliminate the offense and rely on the felon in possession of a firearm statutes; (8) Account for cost savings in programs and require reinvestment of funds saved for expansion of drug treatment programs; and (9) Account for the fiscal impact of changes in drug laws. Require a fiscal statement for all bills which would result in a net increase of periods of imprisonment and require the sponsor to identify the source of funds for the increased imprisonment.
Other suggestions from Task Force members included restricting the right of police to make arrests for minor offenses and requiring the use of citations which would eliminate the cost of pretrial incarceration for counties. Mr. Ozanne observed that making these recommended changes requires political will. Mr. True asked for more information on projected costs for programs and cost savings and observed that judges would have to agree to send persons to treatment and community supervision programs for the proposals to succeed. Senator Jensen indicated evidence-based decisions are essential for programs and recommendations to succeed. Mr. Handy said federal and private money may be available to support treatment programs. Mr. True observed the "other factors" approach to drug trafficking may be problematic. Secretary Brown and Senator Jensen wanted more recommendations on the quantity approach to drug trafficking. Mr. Handy observed that many persons are charged with drug trafficking and are convicted of drug possession. County Judge-Executive Turner asked what constituted a customer list and questioned how some of the other proposed elements for commercial drug distribution would be proven. Mr. True observed most commercial drug traffickers are prosecuted in Federal Court and not in state courts.
With regard to reducing the drug free school zone to 1,000 feet from 1,000 yards, Senator Jensen recommended an actual sale to a minor and Representative Tilley agreed with the reduction to 1,000 feet. Mr. Chris Cohron of the Commonwealth's Attorneys Association said this matter is being discussed by the Commonwealth's Attorneys. Mr. True opposed double enhanced penalties by use of drug enhancements and the persistent felony offender statute.
With regard to corrections impact statements, both co-chairs indicated they are presently required, but are frequently inconclusive and that a more meaningful fiscal impact is needed. County Judge-Executive Turner said he supports requiring that a source of funding be identified for any additional requirements in criminal bills. Chief Justice Minton said Nevada and other states are utilizing incentives for success on probation by allowing time off the end of the probation. Mr. True noted restitution would be paid more quickly if the deal is sweetened.
Discussion of Additional Meeting Dates for Task Force
A motion was made by Mr. Handy and seconded by County Judge-Executive Turner, to request LRC approval for additional task force meetings. The motion was adopted by voice vote.
Senator Jensen recognized Mr. True on becoming a 2010 Fellow of the American College of Trial Lawyers, a distinctive honor awarded to trial attorneys. The committee offered its congratulations to him for this honor.
The meeting adjourned at 3:25 p.m.