Task Force on the Penal Code and Controlled Substances Act

 

Minutes of the<MeetNo1> 5th Meeting

of the 2010 Interim

 

<MeetMDY1> October 19, 2010

 

Call to Order and Roll Call

The<MeetNo2> 5th meeting of the Task Force on the Penal Code and Controlled Substances Act was held on<Day> Tuesday,<MeetMDY2> October 19, 2010, at<MeetTime> 1:00 PM, at the Capital Plaza Hotel, Frankfort KY<Room>. Representative John Tilley, Chair, called the meeting to order, and the secretary called the roll, and the minutes of the previous meeting were approved by voice vote.

 

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., J. Guthrie True, and Hon. Tommy Turner.

 

Guests:† Caroline Mudd, Kentucky Parole Board; Christy May, Eastern Kentucky University; Bill Doll, Kentucky Medical Association; Morgain Sprague, Kentucky State Police; Rodney Ballard, Department of Corrections; Emily Koyagi, Justice and Public Safety Cabinet; and Carl Boes, Kentucky Association of Retired Persons.

 

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

Jason Newman, PEW Center on the States, presented the results of a PEW Center poll on Public Attitudes on Crimes and Punishment.  The poll was the result of bipartisan policy research by Public Opinion Strategies (a Republican polling organization) and Benenson Strategy Group (which had done polling for Senator Obama, unions and nonprofit organizations).  Following the use of focus groups, the poll was conducted as a national survey of 1,200 registered voters in March 2010.  Twenty percent of those polled were the victim or had a family member who was a victim of violent crime, 48 percent were victims of a nonviolent crime, 17 percent were law enforcement households, 43 percent were conservative, and 20 percent were liberal.  The respondents indicated a strong public safety system keeps communities and people safe, holds offenders accountable and has consequences for illegal activities, and is possible while reducing the size and cost of the prison system.

 

Meghan Guevara, Crime and Justice Institute, gave a presentation relating to performance and accountability in sentencing and corrections.  Ms. Guevara said the absence of measured outcomes handicaps policymakers and others who wish to assess the overall performance of correctional and alternative programs and limits the ability of corrections executives to effectively manage their staff and resources.  A performance measurement system addresses the many tasks that community corrections agencies are responsible for, including tracking performance at multiple levels and examining both process and outcome measures.  Selecting a few key measures allows for transparency of system processes and outcomes on reducing recidivism, reducing risk, and reducing substance abuse.† Costs and savings need to be calculated, and annual reporting on progress toward implementation of goals through evidence-based evaluations is helpful. 

 

Ms. Guevara discussed how similar programs have been effectively used in Texas, Georgia, Ohio, and other states.  One of the more effective tools has been performance incentive funding based on savings from programs.  Prison costs $19,000 per year while probation or parole costs $960 per year, so programs which reduce recidivism and treat criminal needs can save money and increase public safety at the same time.  Incentive funding aids in making the programs work.  Whether the programs have worked depends in large part on evidence-based performance and accountability reviews.

 

Charles Zoeller, a private citizen, commented on a situation in Pennsylvania where a judge with a financial interest in a private organization operating a treatment program ordered defendants to the program and thereby benefitted financially.  He urged transparency and accountability in relationships with programs to ensure there is no conflict of interest.  Rodney Ballard, Department of Corrections, said a portion of savings from community programs should be returned to the Department to strengthen these programs.  Senator Jensen observed the General Assembly must ultimately decide where any monetary savings will be redistributed.

 

Senator Jensen commended task force member Chief Justice John D. Minton, Jr. on being named a 2010 Toll Fellow by the Council of State Governments.

 

The meeting recessed until 9:00 a.m. on Wednesday, October 20, 2010.

 

The meeting was called to order by Representative Tilley, the roll was called, and a quorum was present.

 

Meghan Guevara, Crime and Justice Institute, gave a presentation on evidence-based policy options for pretrial supervision, sentencing, and corrections.  She said a comprehensive approach to evidence-based practices can reduce recidivism up to 30 percent, translating into significant cost savings, and decades of corrections research provides guidance for effectively reducing recidivism and improving public safety.  Incarceration can increase the likelihood of recidivism on release, targeted community supervision and behavioral interventions can reduce recidivism, offender risk can be measured, and interventions help reduce risk, but ongoing measurement and evaluation is essential to insure programs are working.

 

Ms. Guevara said Kentucky recidivism rates and technical parole violations have been increasing. †Kentucky has a high arrest rate and a low rate of probation, an increasing prison population, and current demand for treatment and intervention programs outstrips their availability in prisons, jails, and communities.  The Administrative Office of the Courts has adopted and implemented a validated pretrial release risk assessment instrument, and the Department of Corrections has adopted a nationally accepted integrated risk/needs assessment and case management system.  Recovery Kentucky and expanded halfway house capacity have increased community-based placements.

 

Some policy options for Kentucky include expanding use of the pretrial risk assessment instrument to include the release of mid-level offenders prior to trial with community monitoring and GPS monitoring.† The current pretrial release monitoring program has a 99 percent success rate in that releasees did not commit new crimes while on release and returned for trial, and 85 percent of the releasees complied with the conditions of release imposed by the courts.  Persons released with GPS monitoring are responsible for the cost of the monitoring.  Ms. Guevara cautioned that GPS monitoring may not prevent a releasee from committing a new crime, but allows for easier detection and prosecution, and she recommended consolidating the currently authorized GPS monitoring program under one program with a single statewide vendor.  County Judge-Executive Turner asked whether consideration was being given to granting prison time credit to persons on home incarceration or GPS monitoring.  Chief Justice Minton responded this is not the current practice and jail time credit is given only for time spent in jail prior to trial.  County Judge-Executive Turner urged consideration of giving credit against the defendant's sentence for successful completion of a monitoring program.  Senator Jensen observed that GPS technology is constantly improving and may provide a viable supervision tool in more Kentucky counties in the future.  Mr. Handy urged adoption of criteria for providers of monitoring services to ensure that conflicts of interest do not occur and adoption of monitoring standards.

 

Ms. Guevara said most low risk offenders do well without supervision and intensive supervision is counterproductive and expensive.  Intensive supervision should be reserved for medium and high-risk offenders and should be relaxed upon continued compliance with the conditions of release.  Mr. True asked Ms. Guevara to provide the task force with information on sentence credit for time spent on pretrial release and what other states are doing.

 

There was discussion of utilizing the information in the pretrial release report as a tool for evaluating sentencing options.  Chief Justice Minton observed that courts view the pretrial release reports as confidential.  One problem cited by several persons is that under current practice, most cases are decided by plea bargains between the prosecution, the defense, and the defendant, and most judges approve the plea bargain as a matter of course with little consideration for a presentence investigation or a risk/needs assessment of the defendant.  Mr. True observed a risk/needs assessment can be very subjective depending on the evaluator, and the report should not be used to restrict the judge's discretion.  Mr. True said most judges recognize what a defendant's treatment needs are but the lack of treatment programs is a major problem, so the courtís only option may be to send the defendant to prison.  Senator Jensen cautioned that the risk/needs assessment should not prejudice the defendant's constitutional rights.

 

Ms. Guevara recommended the validated risk/needs assessment currently used by the Department of Corrections be incorporated in the presentence report provided to the judge prior to a defendant's sentencing, and the reports be provided to the prosecution, defense, and the judge when plea negotiations are conducted, to give all parties reliable information as to the defendant's risks and needs, as a guide to which interventions will work best for the defendant and ensure public safety.  She said after an offender is probated, the detailed terms of supervision and monitoring of the probationer should be the responsibility of the Department of Corrections.  Additional recommendations included authorizing the probation and parole officer to use administrative caseloads for low risk offenders, and focusing on the probationer's financial obligations and not committing a new crime, changing supervision levels presumptively or on review, and allowing compliance credits to reduce the level of supervision for good behavior or allowing early termination of the probation.

 

For medium and high risk offenders, more intensive supervision is appropriate with case plans structured to the offender's needs, with the use of motivational and cognitive techniques, and swift and certain administrative sanctions for violations, such as two days in jail ordered by the probation officer after the defendant admits the violation, or a change in the level of supervision and other needed programs and interventions.  Ms. Guevara indicated this change needs judicial support because presently the judge must hold a hearing and determine the sanctions which delays the sanctions and increases judicial supervision time.  Ms. Guevara discussed the Project HOPE program in Hawaii where judges can order immediate interventions for probation violations within 72 hours of the incident.  Violations might include failing a drug test, missing appointments, failure to attend programs or counseling and other similar problems.  Drug treatment is ordered only after repeated drug test failures where short terms of incarceration or other interventions have failed.  The Hawaii program has resulted in a 50 percent reduction in new arrests and failed drug tests.

 

Chief Justice Minton said many judges are frustrated by the lack of community treatment programs and other community supervision options, and that significant judicial education on sentencing practices, monitoring, and other matters will be necessary for these programs to succeed.

 

Ms. Guevara said the Department of Corrections is now using a validated risk/needs assessment prior to parole or release determinations.  Ms. Guevara asked if this should be made a statutory requirement.  Secretary Brown felt this should be an executive branch decision and should not be micromanaged by legislation.

 

Ms. Guevara indicated the same type of earned-time credit used in prison could be authorized for parolees who comply with the provisions of parole.  Credit would be earned to reduce the time of parole supervision and provide an incentive for the parolee to increase the level of program completion and compliance with the conditions of parole.  Also, for most offenders a lesser level of supervision is appropriate which focuses on payment of restitution, no new arrests and no violations of parole provisions, and rewards this behavior with administrative supervision rather than active supervision at higher and more costly levels, which may actually be counterproductive. Options for higher level offenders include increased levels of supervision, use of GPS monitoring, halfway houses, and similar programs.  Representative Tilley observed these measures have worked well in other states.  Ms. Guevara said the Department of Corrections is now using a National Institute of Corrections validated program designed to have a graduated set of sanctions for use with parole violators which focuses on targeted interventions and programs which avoid sending technical violators back to prison and the department's programs are currently being evaluated by Eastern Kentucky University on a continuing basis.  Senator Jensen urged the Department of Corrections to work with the Court of Justice to expand this type of supervision arrangement to persons on probation.  In response to a question from Mr. True, Ms. Guevara said the average parole officer caseload is 92 parolees.

 

Professor Robert Walker, University of Kentucky Center on Drug and Alcohol Research, presented a report on Kentucky's substance abuse treatment capacity, costs, and persons served.  Professor Walker said Kentucky has 1,040 licensed treatment beds, with approximately 600 beds for men, 441 for women, and an average utilization rate of 91 percent.  He said there are 290 inpatient psychiatric beds for adolescent substance abuse treatment, but only 84 non-medical beds for adolescent substance abuse treatment.  There are no recovery center beds for adolescents.  In addition to the licensed treatment beds, there are 1,772 Recovery Center beds, of which 950 are for men and 772 for women.  He said 48 beds are funded by the Department of Corrections for detoxification only.  Professor Walker observed funding for substance abuse treatment programs has not been increased in 14 years.

 

Professor Walker's report detailed each facility's programs, beds, and treatment programs.  In 2009, 28.8 percent of substance abuse clients were served by inpatient centers and 13,671 clients were served by outpatient centers at 130 sites in the state.  Professor Walker observed that criminal justice cases take longer for treatment but generally have more successful outcomes than voluntary admission cases.  If additional state funding is provided, federal matching money could be available.  The cost of treatment nationally is $3,000 to $7,000 per client per episode, but the average cost in Kentucky is $1,860.  Professor Walker said the relationship with the Department of Corrections is sometimes difficult but could be corrected by more concise contract negotiations.  Professor Walker said strict drug court judges who carefully monitor participants have better client outcomes than judges who do not.  Professor Walker's report indicated there is no capacity to increase residential or outpatient treatment at this time.† He said expanding community based services would cost about $2,000 per client, and residential treatment with outpatient aftercare services would cost between $6,000-$7,000 per year per client, which is still far less than the cost of incarceration.

 

Discussion then turned to use of mental health courts, mental health and mental retardation centers, and the number of persons with mental health problems in prisons rather than in a hospital setting.  Professor Walker said mental health facilities feel these persons are criminals and need to be in prison, while corrections officials feel these persons have mental health problems which are best addressed in a hospital setting.  Professor Walker observed that one-third of these persons have traumatic brain injury and others have thought disorders such as depression, post traumatic stress disorder, and drug and alcohol problems.  Programs must focus on the patient's immediate needs but also need to focus on other problems such as unemployment, transportation to treatment programs, and more frequent treatment contacts.  Chief Justice Minton observed there are two successful pilot mental health court programs in the state, but the Courts are unable to implement another statewide court program due to budget restraints.

 

Dr. James Austin, JFA Institute, gave a presentation on preliminary data from the drug offense file case review requested by the task force.  The detailed review involved 233 cases and showed 40 percent of prison admissions are for drug crimes and on any given day, approximately 4,000 prisoners are in the Kentucky correctional system for drug crimes.† He discussed the length of incarceration for drug offenses, demographics of the offenders, level of custody, number with prior misdemeanor and felony convictions, the charges and amount of drugs at the time of arrest, and other statistical information.† In summary, most were white males, unemployed, unmarried with no children, with mental health or medical problems, a large percentage had prior misdemeanor convictions but few felony convictions, most acted in concert with others, violence and victim injury were relatively rare, and the amount of drugs involved in the crime was small in both trafficking and possession cases.

 

Members of the task force requested additional information about charges versus convictions, plea bargaining, the number of persistent felony offender charges, felony enhancements that were dropped to obtain the conviction, and further information relating to the length of sentences.

 

The meeting adjourned at 1:00 p.m.