Task Force on the Penal Code and Controlled Substances Act


Minutes of the<MeetNo1> 6th Meeting

of the 2010 Interim


<MeetMDY1> November 16, 2010


Call to Order and Roll Call

The<MeetNo2> 6th meeting of the Task Force on the Penal Code and Controlled Substances Act was held on<Day> Tuesday,<MeetMDY2> November 16, 2010, at<MeetTime> 9:00 AM, at the Administrative Office of the Courts Conference Room, Millcreek Park, Frankfort, KY. Senator Tom Jensen, Chair, called the meeting to order, the secretary called the roll, a quorum was present, and the minutes of the October 19, 2010 meeting were approved.


Present were:


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


Guests: Charles Zoeller; Commissioner LaDonna Thompson, Rodney Ballard, and Tammy Lou Johnson, Kentucky Department of Corrections; Travis Fritsch, Mary Byron Project; Gary Gilkison and Marshall Long, Kentucky Jailers Association; Jenifer Noland, Westcare; Sherry Currens, Kentucky Domestic Violence Association; Ray Sabbatine; Emily Koyagi, Mark Mangeot, Justice and Public Safety Cabinet; Carl Boes, Kentucky Association of Regional Programs; Chris Cohron, Warren County Commonwealth’s Attorney; Ernie Lewis, Kentucky Association of Criminal Defense Lawyers; Chad Harpole, Kentucky Chamber of Commerce; Gay Dwyer, Kentucky Retail Federation, Dan Smoot, UNITE; Bill Thompson, CRCCC; Roger Crittenden, Franklin County Circuit Judge; Mike Simpson, Oldham County Jailer; Bobby Waits, Shelby County Jailer; Diana Taylor, Taylor-Gray Associates; Lindsay Crawford and Virginia Woodward, Crime Victims Compensation Board; and Joe Williams, Kentucky State Police.


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


Presentation on the Department of Corrections’ New Risk and Needs Assessment Tool

The first speaker was Dr. Elizabeth McKune, Assistant Director for Psychological Services, Division of Mental Health and Substance Abuse, Kentucky Department of Corrections. Dr. McKune testified about the Level of Service/Case Management Inventory (LS/CMI) risk/needs assessment tool used by the Department of Corrections, based initially on a federal grant to provide services for female offenders reentering the community. The LS/CMI is a peer reviewed and professionally validated comprehensive risk/needs assessment tool designed in Canada and used throughout the world. It is divided into eleven sections designed to supply a complete picture of an offender's criminogenic needs in order to provide for treatment needs and details for successful completion of probation or parole, as well as institutional treatment.


Principles of effective treatment include measurement of risk to assist in the level of service needed, need for assessing targets of change in a defendant’s attitudes, and responsivity which identifies the strategies to be used for treatment. The goal is to match the level of services to the level of risk and to prioritize supervision and treatment resources for high-risk offenders. Studies have indicated low-risk offenders need less supervision and may not need treatment programs, while medium and high-risk offenders may need more supervision and targeted treatment.


Dr. McKune indicated traditional punishment increased recidivism by seven percent and inappropriate treatment increased recidivism by six percent, while appropriate treatment reduced recidivism by 30 percent. Programs used deal with dynamic items relating to pro-criminal attitudes, criminal associates, dysfunctional family relations, alcohol/drug problems, low self-control, education/employment, and leisure/recreation and use active listening skills, and advanced motivational techniques to lessen the offender's risk of reoffending, thus improving public safety.


Dr. McKune said the Department of Corrections is in the process of training 842 probation and parole officers and institutional staff to use the LS/CMI assessment tool and design appropriate treatment programs for offenders. The training began in August 2010 and so far, 400 employees have completed the training. All staff will be trained by April 1, 2011. Presently, the program is targeted at offenders scheduled for parole and who are released on parole. It is the department's long-term goal to use the program much earlier in the criminal justice process so a judge will have the information during sentencing or when making during decisions for pretrial release. In response to a question about whether the LS/CMI information is shared with the prosecution and the defense, Dr. McKune responded at this time the information is provided only to offenders eligible for or on parole. She said the department hopes eventually the LS/CMI will be used as a supplement to or replacement for the presentence investigation report currently prepared by probation and parole officers and presented to the court prior to sentencing.


Senator Jensen questioned the use of some of the information in the LS/CMI during pretrial release decision making because the rights of the defendant could be compromised. He said he normally cautions defendants not to speak to anyone during the pretrial phase of proceedings. Mr. True asked about the educational level of probation and parole officers and the training they receive on the LS/CMI, and Dr. McKune responded all probation and parole officers have college degrees, and as a part of training have to complete written and practical testing involving the LS/CMI assessment. If the officer fails the first time, there are two weeks of remediation, and if the officer fails again, the entire training program must be repeated. The department anticipated a 20 percent failure rate but so far only a handful of the 400 employees have had to repeat the training. Mr. Handy asked what happens when the offender does not want to change and does not make progress. The response was that the officers and institutional staff are trained to look into the cause of the problem and develop strategies to help the offender change their behavior. Tammy Lou Johnson, Department of Corrections, described various techniques used to motivate the offender. Lisa Howard, Division of Probation, DOC, said use of the LS/CMI could reduce recividism by 40 percent, and over time could reduce the prison population by 3,000 to 4,000. Chief Justice Minton offered the cooperation and assistance of the court system in expanding use of the LS/CMI to earlier in the trial process.


Presentation of New Ideas for the Draft Policy Framework

The next speakers were Jason Newman and Richard Jerome, PEW Center on the States, and Peter Ozanne, Crime and Justice Institute, who discussed PEW's recommendations to the task force and indicated PEW will be conducting cost assessments for each of the recommendations. The recommendations include (1) Require the Parole Board to hear cases 90 days prior to the parole eligibility date; (2) Improve the Parole Board's deferment process; (3) Codify the budget provision that allows parolees to complete programming in the community; (4) Define success as recidivism reduction; and (5) Require a certificate of need on new jail cells. Mr. Newman said other suggestions under consideration were to reform the nonsupport and flagrant nonsupport statutes. Warren County Commonwealth's Attorney Chris Cohron commented on a successful partnership between the County Attorney and Commonwealth's Attorney to increase child support collections and reduce the number of persons jailed or sent to prison for nonsupport. He said the Commonwealth's Attorney does not have jurisdiction to collect child support and must support the civil collection efforts of the County Attorney.


Mr. John Hicks, State Budget Office, said statutory changes would be needed to accomplish these goals because the language in the budget suspended present statutes. Mr. Handy said many of the recommendations required use of the LS/CMI risk/needs assessment to measure success.


Judge-Executive Turner discussed the use of incarceration for failure to pay fines and court costs. He suggested a credit of $50 per day be used for each day of incarceration toward satisfying the fine or costs. Mr. Handy observed that it goes against logic to spend more money to collect less money.


The members discussed the following recommendations:


(1) Expand medical parole to release terminally ill inmates or disabled inmates from prison who pose no risk to society and place them in other settings, and Judge-Executive Turner suggested using similar programs in county jails both prior to trial and for sentenced inmates to reduce medical costs for counties.


(2) Use a web-based portal to provide key information to courts regarding the offender risk/needs assessment, the expected time to be served by the offender as indicated by statistics for other offenders, and the likelihood for reoffending attendant to the use of various sentencing options.


(3) Centralize restitution information and providing incentives for the collection of restitution. Mr. Newman said the Administrative Office of the Courts is developing a program to collect and centralize restitution orders and collection information.


(4) Require the Department of Corrections to implement mandatory reentry supervision for inmates who would otherwise be released without supervision or oversight because they have completed their sentences. Members discussed the benefits and detriments of whether this supervision should occur prior to or following the serve out of the offender's sentence. Supervision for persons who had already served their sentence could only be applied to persons who are convicted after a change in the statutes while supervision prior to release could be implemented at any time. Discussion centered on the length of time the person would be released prior to the expiration of sentence, potential penalties for failure of supervision, and reaction of the public to releasing potentially violent offenders prior to the end of their sentences.


(5) Allow the Department of Corrections to conditionally discharge offenders through local jails. Secretary Brown cautioned it might not be a good idea to send potentially high risk long term inmates to county jails to mix with lesser risk inmates.


(6) Ensure that probation revocation hearings are held within a reasonable amount of time after the offender is placed in jail.


The meeting recessed at 12:15 p.m.


The meeting reconvened on Wednesday, November 17, 2010. Representative Tilley called the meeting to order, the roll was called, and a quorum was present.


Presentation and Discussion of Draft Policy Framework

Richard Jerome and Jason Newman, PEW Center on the States, and Peter Ozanne, Crime and Justice Institute, discussed the Draft Policy Framework for the Task Force on the Penal Code and Controlled Substances Act. The recommended policy options are designed to accomplish several goals. The first goal, strengthening probation and parole, would be accomplished through more informed decision-making based on the scientifically assessed risks and needs of the offenders. The second goal is to boost the chances that inmates will successfully transition to the community. This would require mandatory re-entry supervision for some inmates as well as the increased availability of community-based programs and transitional housing for those released from incarceration. Third, the recommendations included provisions to improve parole and probation supervision, including the expanded use of electronic monitoring, required use of evidence-based practices and programs to supervise offenders, reduced caseloads for probation and parole officers to place more focus on high-risk offenders, and increased offender accountability for violations of probation or parole. The fourth goal is to adopt common sense sentencing reforms by modernizing the Controlled Substances Act to focus resources on high-level offenders and provide effective alternatives for non-violent offenders. The fifth goal, to support and restore victims, would be accomplished by providing more information to the courts and victims at sentencing regarding the offender and the expected length of actual time to be served. The policy options also included improved methods of tracking restitution. The final goal, improving government performance, includes recommendations to establish mechanisms to measure, incentivize, and ensure results in reducing recidivism and criminal behavior. Another recommended policy to accomplish this goal is to require a certificate of need from the state before a county could build new jail cells.


Mr. True said the proposal for post-incarceration supervision would have legal problems and recommended releasing inmates prior to the end of the sentence and providing for reentry supervision. Other members commented that the victim community is not in favor of releasing high risk felons prior to the end of their sentence. Mr. Handy suggested if high risk felons are released prior to the expiration of their sentence, GPS monitoring should be mandatory. Mr. True suggested felons be paroled prior to release, and that if they violate the conditions of parole, they should be returned to prison for the remainder of their sentence. Secretary Brown said supervision would benefit high risk inmates who serve out their sentences, but it may be contraindicated for low risk inmates who serve out and do not need a high level of supervision. A comment was made that Illinois uses a day reporting system for inmates released prior to the end of their sentence for a period of 6-12 months, and recidivism has been reduced by 40 percent.


With regard to supervision, use of the risk/needs assessment tool was favored by the members, and some members suggested GPS supervision for medium and high risk offenders, with accountability for violations with immediate sanctions such as used in Hawaii’s Hope program.


Chief Justice Minton said probation and parole does not supervise misdemeanants in District Court except in rare instances. He asked how misdemeanant supervision would be accomplished, particularly if probation and parole officers were utilized and given authority to use intermediate sanctions. Under the current system, misdemeanant probation is under the jurisdiction of the sentencing judge and is the sole province of the court system. He said the suggestions presented become a separation of powers issue. The Chief Justice further observed that the proposed program would require a tremendous judicial education effort, and some judges could resist transferring this responsibility to the executive branch. Judges would have to develop a trust in the probation and parole officers and would also have to become experts in evidence-based practices.


Several members observed that a tremendous investment would be needed on the front end in order for assessments and programs to work, and it is important to develop a cost estimate for each proposal. Secretary Brown commented that intermediate sanctions by probation and parole officers could be problematic. The need for probation incentives for compliance perhaps should be administered by the courts. The Chief Justice expressed his support for the probation and parole supervision proposal.


With regard to common sense sentencing provisions, it was recommended by the members that violent offender and persistent felony offender statutes be retained. With regard to quantities of drugs for presumptive drug peddling, some members felt the proposed quantities were unworkable. Mr. Handy said he favored presumptive for 1st and 2nd felony drug possession. He said it must be recognized that there is an addiction problem. Judge-Executive Turner observed that the six months that persons spend in jail prior to many trials is detrimental to the arrestee and does not comport with the risk/needs assessment and level of supervision proposals that have been presented. The members indicated they were not interested in general penal code reform.


Mr. Handy questioned the accuracy of the drug offense data presented to the task force and hoped a more thorough review of the case data would provide better information. He suggested using a circumstances test to better show trafficking versus peddling, including amount of drug purchased, number of purchases, possession of drug records, drug manufacture, willingness to accept treatment, willingness to identify drug suppliers, and other factors, and suggested the use of the rocket docket where early plea bargains are encouraged to reduce pretrial incarceration and make treatment available to addicts earlier. Secretary Brown indicated a need for long term treatment to break the cycle of addiction and suggested looking at the definitions and penalty for trafficking. Representative Tilley observed that existing programs are full and that more resources and seed money are necessary and additional capacity is needed for both supervision and treatment.


Representative Tilley told the members that a bill relating to making pseudoephedrine a prescription drug has been prefiled, and other legislation relating to a precursor block list may be filed. He suggested that the task force not address these issues because they will be handled separately during the 2011 session.


With regard to changes in the nonsupport and flagrant nonsupport laws, Chief Justice Minton agreed this is a vexing problem and probably should be considered separately at a later date. Other members agreed, and PEW agreed to withdraw the proposal.


With regard to the expansion of medical parole, Secretary Brown indicated he favored the proposal that had been introduced at previous sessions. Mr. Handy commented that a thorough risk/needs assessment needed to be done on persons released on medical parole and that a mistake such as Scotland's release of the Lockerbie bomber could endanger public confidence in the concept. Representative Tilley suggested the bill include a proposal for reincarcerating the person if their condition improved. Judge-Executive Turner suggested the bill be expanded to allow medical release of persons confined in county jails both prior to trial and after conviction.


There was general approval from the members about improving the collection of restitution and improving the provision of information regarding sentencing to crime victims. Suggestions were made for incentives to clerks and county attorneys for improving child support collection. There was some concern that current financial conditions could make immediate implementation of some treatment and education programs difficult and suggested legislation might include a phase-in period with a delayed effective date. There was support for incentivizing programs which had positive results and holding providers accountable for program results.


With regard to providing sentencing cost information to judges, Chief Justice Minton reported that information in the press relating to requirements in Missouri for judges to use costs as a guide to sentencing was inaccurate. Several members were concerned that requiring recidivism information and other types of information during the sentencing phase of a trial might create a set of appellate issues relating to whether the judge had properly used the information in any given case. Representative Tilley said that the provision of cost information for pieces of legislation relating to crimes and punishments would be useful and should be provided. Mr. Jerome said that Virginia has a strict financial impact requirement that requires the sponsor of criminal justice legislation to not only identify costs and savings, but to also identify where the funds will come from to provide for additional costs. Representative Tilley commented that sometimes the sponsor of the legislation would have only a short period of time to prepare the impact information. Judge-Executive Turner said accuracy of corrections impact statements is crucial, particularly where costs to local government are involved in a legislative proposal.


With regard to the certificate of need proposal for jails, Judge-Executive Turner indicated the County Judge-Executives Association has supported this legislation for years. Secretary Brown also indicated his support for the proposal.


Discussion then turned to suggestions that were not included in the Draft Policy Framework. Mr. True asked that information be gathered on the impact of the persistent felony offender statute and the violent offender statute and use of both statutory enhancements and the persistent felony offender statute to create a double enhancement. Representative Tilley urged inclusion of the Department of Public Advocacy’s social worker program. District Judge Hunter Whitsell from Fulton County indicated he supported the idea for a Class E felony with presumptive probation and with expungement of the felony record for Class E felonies, which he said would have a favorable impact on recidivism. Ms. Sherry Currens from the Kentucky Domestic Violence Association recommended reintegration programs for persons being released from prison and the consideration of whether an offender posed a higher risk to a particular victim as opposed to a lower risk to the public at large, and urged continued funding of the VINE victim notification program. Representative Tilley recommended expanding use of Community Mental Health Centers to provide community based services to offenders.


The meeting adjourned at 12:15 p.m.