Task Force on the Penal Code and Controlled Substances Act


Minutes of the<MeetNo1> 7th Meeting

of the 2010 Interim


<MeetMDY1> December 14, 2010


Call to Order and Roll Call

The<MeetNo2> 7th meeting of the Task Force on the Penal Code and Controlled Substances Act was held on<Day> Tuesday,<MeetMDY2> December 14, 2010, at<MeetTime> 11:00 AM, in<Room> Room 131 of the Capitol Annex. Representative John Tilley, Chair, called the meeting to order, the secretary called the roll, a quorum was present, and the minutes of the November 16, 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 George, Kentucky Chamber of Commerce; Richard Jerome, Pew Center on the States, Peter Ozanne, Crime and Justice Institute; and James Austin, JFA Institute.


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


Presentation and discussion on the Draft Policy Framework and potential impact on the corrections system


The first speaker was Richard Jerome of the PEW Public Safety Performance Project who presented a report on proposals for legislative and administrative action for consideration during the 2011 Regular Session of the General Assembly.  The recommendations relate to four focus areas, including Strengthen Probation and Parole, Adopt Common Sense Sentencing Reforms, Support and Restore Victims, and Improve Government Performance.


The recommendations under Strengthen Probation and Parole include (1) base key decisions on risk and needs data, 2011 for parole and supervision (this is now being implemented but needs statutory authorization); (2) mandatory re-entry supervision, 2011; (3) require parole board to hear cases 60 days prior to parole release date, 2011 and limit deferments to 12 months for Class C and D felons and 5 years for other felons with deferment of more than 2 years to be approved by full board, 2011; (4) allow parolees to complete programming in local community and allow release of prisoners through county jails and use GPS monitoring, 2011; (5) require use of evidence based programs and treatment with evaluations of program effectiveness, adopt probation and parole supervision incentives and administrative supervision for low risk offenders, 2011; (6) require a risk assessment for pretrial supervision, 2012 (this is now being implemented by the Administrative Office of the Courts); and (7) incorporate risk and needs data into the presentence investigation, 2012.


The recommendations under Common Sense Sentencing Reforms include (1) modernize the controlled substances act by revising possession of controlled substances, create quantity levels for drug possession, distinguish commercial trafficking from peddling, reduce the drug free school zone from 1000 yards to 1000 feet, limiting sentencing enhancements, and reinvest savings in to expanded treatment programs, 2011; and (2) expand medical parole and allow circuit judges to grant medical furloughs for county jail prisoners, 2011.


The recommendations for Support and Restore Victims include (1) require the Department of Corrections to provide a web-based system to courts containing sentencing-related information, and (2) support a statewide automated tracking system for payment of restitution to victims, 2011.


The recommendations for Improve Government Performance include (1) define success in corrections as reduction of recidivism, and improving public safety; (2) establish measures for system accountability and cost-effectiveness for the Department of Corrections and the Administrative Office of the Courts; (3) establish a system of performance incentive funding; (4) use performance contracting for Department of Corrections service providers; (5) improve legislative corrections impact statements; and (6) and require a certificate of need for new jails and expansion of jails, 2011.


James Austin, JFA Institute, suggested the LS/CMI risk/needs assessment instrument be validated every three years using results for Kentucky offenders.  Mr. Handy commented that mandatory release should not be used for Class A felons and release of these persons should be at the discretion of the Department of Corrections.  Mr. Jerome commented that South Carolina uses a six-month supervision period while New Hampshire uses a nine-month supervision period.  Mr. True observed these persons will be released at the end of their sentence and any program should not automatically eliminate any class of persons from supervision since supervision may reduce reoffending.  Discussion then turned to the potential for mandatory post-incarceration supervision for persons convicted after the effective date of the act, which is currently used for sex offenders.  California and the federal government use post-incarceration supervision.  Mr. Austin commented the number of persons receiving post-incarceration supervision would be small.  Senator Jensen commented these people need supervision.  Mr. Ozanne commented that post-incarceration supervision would reduce recidivism and protect public safety.


Discussion turned to the proper operation and evaluation of programs which should occur at least once every five years and which should result in the elimination of poorly performing programs.  Mr. Ozanne indicated low-risk offenders should be moved to administrative supervision as early as possible, with supervision focusing on high risk offenders, along with a combination of needed programs for such offenders.  Chief Justice Minton said the courts have viewed probation as a judicial responsibility and relinquishing supervision decisions to probation and parole officers may be a problem for some judges.  Members of the task force commented that in some jurisdictions, judges approve early termination of probation for good behavior and program compliance, while others never shorten the period of probation, and a statewide standard is needed.  Several suggestions were made for pilot projects around the state.  Mr. True suggested that small counties be used for the pilot projects as well as large counties.


With regard to a suggestion that the Department of Corrections conditionally discharge prisoners to county jails for a period of time prior to expiration of their sentence, several objections were raised including the fact that some jails do not want state prisoners, some are full, and many jails are not equipped to provide the programs which the pre-release offenders need.  Representative Tilley observed that Section 253 of the Constitution of Kentucky prohibits these persons from being released to work at private employment.  Mr. True indicated these persons should be released into the community and be required to participate in community programs.


Discussion continued on Controlled Substances Act proposals to define commercial drug trafficking, lesser degrees of drug trafficking, and matters such as reducing drug free school zones, included general approval for limiting drug free school zones to 1,000 feet rather than 1,000 yards, eliminating enhancements for drug possession offenses, and enhancing penalties for commercial drug traffickers.  A recommendation for presumptive probation for 1st and 2nd offense drug possession met general approval.  Discussion regarding making various offenses misdemeanors rather than felonies included a comment from Chief Justice Minton that misdemeanors would be tried in District Court rather than Circuit Court and probation supervision may be a problem, and concerns that counties are left to pay the costs of misdemeanor incarceration.  There was also discussion of how many grams of a substance should be related to commercial trafficking or whether other factors should be considered.  Mr. Handy recommended that a common scheme and plan could elevate the offense from simple trafficking and commercial trafficking.  Several members favored eliminating "double enhancement" in drug cases where repeat offenses bring not only a statutory enhancement but the potential for conviction as a persistent felony offender.


Mr. Austin presented preliminary simulations based on prison population estimates.  Reviewing current trends, he said the leading reason for the increase in prison population is new Class D offenders, mostly for drug crimes, driven by more arrests and high prison disposition rates.  A large number of Class D offenders, the second largest in the nation, are housed in county jails.  Mr. Austin said the keys to addressing prison population include reducing the number admitted or the length of stay or both, reducing admissions by increased use of probation and reduction in the number of offenders sent to prison for probation violations and parole violations (50 percent of admissions), reducing of the length of sentence through sentence and good time credits, changing the laws on sentence lengths, better supervision of probationers and parolees using incentives for probation and parole success, and reducing returns to prison through the use of intermediate sanctions.  Mandatory reentry supervision would be for all prisoners not released on parole.  Under mandatory supervision, they would be released 180 days prior to expiration of their sentence.  This would not apply to maximum or close custody prisoners or Class A felons.  This would require adopting reforms for parole credits to avoid overloading parole caseloads. 


If these recommendations are implemented July 1, 2011, it would reduce incarceration by 1,625 prisoners by 2020.  Diverting technical shock probation violations in 50 percent of the cases would result in 325 fewer persons sent to prison by 2013.  Community treatment could result in the release of 240 prisoners who have been granted parole but cannot currently receive mandated treatment.  Increasing transitional bed capacity for paroled prisoners who have no satisfactory residence plan could involve about 170 prisoners by 2010.  If all recommendations to the task force are adopted, he said the prison population could be reduced by 2,799 prisoners.


The task force recessed at 3:35 p.m. and resumed discussions on December 15, 2010 at 10:00 a.m.


Reinvestment Strategies


Peter Ozanne, Crime and Justice Institute, presented information on performance incentive funding which proposed pilot programs by the Department of Corrections in counties with the highest prison disposition rates to create a criminal justice coordinating council involving the Commonwealth's attorney, county attorney, jailer, public advocate, police, sheriff, and probation and parole.  If the prison disposition rate is reduced by 50 percent, the state will reimburse 50 percent of the savings as follows:  50 percent to the state, 25 percent to probation and parole for better supervision in the county, and 25 percent to the criminal justice coordinating council for treatment and services in the county.


Another proposal would create five pilot projects in the Department of Corrections to reduce the number of probation and parole revocations sent to prison.  The same criminal justice coordinating council would be used.  The savings would be distributed at 50 percent to the state, 25 percent to probation and parole for improvement in services in the county, and 25 percent to the criminal justice coordinating council for treatment and services in the county.


Programs would include validated risk/needs assessments, implementation of evidence-based practices, programs with cognitive behavioral therapy, and tracking of program results.  County Judge-Executive Turner approved of the program and thought it had merit.  Mr. Handy requested information on how the state 50 percent would be divided.  Questions included how would the criminal justice coordinating council would reduce the prison disposition rate?  County Judge-Executive Turner suggested if a prisoner is sentenced to the county jail for a misdemeanor which was previously a felony, the state should pay the cost of incarceration.  Secretary Brown suggested examining the Penal Code in more detail to expand the classifications of felony offenses and reassessing appropriate levels of penalties.  Secretary Brown also commented on the effectiveness of day reporting centers in Chicago for persons on probation and parole.  Senator Jensen indicated he favored eliminating double enhancements for drug offenses and suggested the persistent felony offender statute exclude KRS Chapter 218A offenses.  He asked for more information on the number of persons charged with persistent felony offender violations versus convictions, and recommended that a certificate of need be enacted for the expansion of jails or the building of new jails.  Mr. Handy indicated he approved of the proposal to provide crime victims with more information as to the defendant's status and progress in paying court ordered restitution.


The meeting adjourned at 11:45 a.m.