Call to Order and Roll Call
The 1st meeting of the Task Force on the Penal Code and Controlled Substances Act was held on Tuesday, January 18, 2011, at 10:00 AM, in Room 171 of the Capitol Annex. Representative John Tilley, Chair, called the meeting to order. The secretary called the roll and a quorum was present. The minutes of the December meeting were approved.
Present were:
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: Barry D. Moore, Commonwealth Attorney 12th District; Verman R. Winburn, Kentucky Parole Board; Don Stosberg, Woodstore Resources; Marylee Underwood, Kentucky Association of Sexual Assault Programs; Michael Shumar, UK College of Pharmacy; Jenifer Noland, Westcare; and Charles Zoeller.
LRC Staff: Norman Lawson Jr., Jon Grate, Joanna Decker, Ray Debolt, Jr., Kyle Moon, and Kathy Miller.
Discussion of Recommendations
Richard Jerome and Jason Newman, PEW Public Safety Performance Project, Peter Ozanne and Kristy Danford, Crime and Justice Institute, and James Austin, JFA Institute, presented the January 18, 2011 policy recommendation memorandum draft and a copy of 11 RS BR 363, which contained a draft of the Task Force Bill.
Mr. Jerome discussed the "Policy Recommendations" memorandum. The memo contained a summary relating to the growth of the corrections population, costs of corrections, drivers of prison population, a summary of suggested reforms, and a national summary of recent corrections reforms. He said that some reforms recommended for Kentucky were already being implemented, such as use of the LSCMI risk/needs assessment by the Department of Corrections and the Parole Board in making parole release decisions and in determining treatment and other recommendations for parolees. Training for probation and parole officers in the use of the risk/needs assessment is nearly complete.
Other factors discussed were rising costs, incarceration with low public safety return, and fluctuating rates of recidivism. The report cited prison growth as being driven by increased arrests and court cases including a 70 percent increase in drug arrests, 22 percent arrest rate for Part 1 (serious) offenses and a 33 percent increase in the arrest rate for Part 2 offenses, the above 60 percent rate of felony imprisonment sentences issued by courts compared with a national average of 41 percent, and the large number of offenders returned to prison for technical probation and parole violations.
Information from the JFA Institute estimated that, with no action, the prison population will grow by 1,400 inmates in 10 years at an estimated cost of $161 million.
Recommendations for strengthening probation and parole included: (1) incorporating a risk/needs assessment into the presentence investigation report to guide the judge in sentencing; (2) using the risk/needs assessment during the parole process and during supervision; (3) implementing mandatory reentry supervision for inmates who had not been paroled; and (4) improving the Parole Board deferment process.
Suggestions relating to mandatory reentry supervision generated much discussion. Some inmates serve their entire sentence without parole and are released at the expiration of their sentences either because they were sentenced to life imprisonment without parole or they were denied parole. The recommendations included a nine month early release as one type of parole so the offender is given some treatment and supervision prior to the expiration of sentence. Some members of the task force felt this was a good idea while others thought the process might reward bad behavior and failure to participate in programs while in prison. Some members suggested the solution was to have post-incarceration supervision as is done for sex offenders. Under this program, the prisoner would be required to serve a period of supervision following release and if they violated the conditions of release, they would be returned to prison for the remainder of the supervision period. One year of supervision was recommended. This option would require an amendment to existing statutes which would apply only to persons convicted after the effective date of the statute.
Other suggestions included using higher levels of supervision for high and medium risk offenders, expanding the use of GPS monitoring, and limiting Parole Board deferments to 12 months for Class C and D felons, and 5 years for Class A and B felons, and requiring that any deferment of more than 2 years be approved by the full board. Some members of the task force favored this proposal while others wanted 10 year deferments. Offenders who did well on parole or on probation would be rewarded by lowering the level of supervision and by shortening the period of supervision.
A recommendation was made to shorten the length of time for probation revocation hearings from 90 days to 15 days or to permit the use of administrative sanctions by probation and parole officers. The Hawaii HOPE project was suggested as an effective model program with immediate sanctions for violation of the provisions of supervision.
With all programs, the recommendations included use of evidence-based practices and monitoring of programs to see that they used evidence-based practices and had genuine success in reducing recidivism. Discussion turned to how and where offenders released on pre-release supervision should stay. Some favored direct release and supervision by the Department of Corrections. Chairman Tilley suggested that, since the released prisoners were actually still prisoners under Department of Corrections’ control, Section 253 of the Constitution of Kentucky would prevent them from working except on public projects. The suggested alternative was to release the prisoners on parole so they were no longer under the department's control and could work at private employment. Mr. True opposed a suggestion that released prisoners be housed in county jails while on parole because he felt that offenders would do better in a community setting.
The next topic of discussion was the adoption of "common sense” sentencing reforms, many of which related to controlled substances offenses. The first proposal included "presumptive probation" for drug possession offenses. Under this proposal, the sentencing judge would probate the offender unless there were "substantial and compelling reasons why the defendant could not be safely and effectively supervised in the community and is not amenable to community-based treatment." Chief Justice Minton observed that since most of the drug possession offenses were misdemeanors and were tried in the District Court, a problem would arise because probation and parole services are not normally available in District Court. Probation and parole officers are normally available only in Circuit Court for felony offenses and District Court is not prepared to supervise misdemeanants because of the lack of probation officers.
Drug proposals included setting 5 gram or 5 dosage unit limits as a break between possession and trafficking offenses except for methamphetamine, which was set at 2 grams, reducing the drug-free school zone distance from 1,000 yards to 1,000 feet, and mandatory release prior to trial, particularly for possession offenses. Mr. Handy suggested lowering the limit for possession to 4 grams and permitting trafficking charges on multiple offenses. Another recommendation was to eliminate "double enhancements" for offenses where subsequent offenses would have a higher penalty and could also bring prosecution as a persistent felony offender.
The Task Force approved a suggestion to expand the medical parole statute (KRS 439.3405) to include other conditions and change the requesting authority from the warden of the prison to the medical director of the Department of Corrections.
Mr. Austin reported that the prison population was stable and holding and the crime rate was declining, but drug arrests were up 70 percent, that 7,000 Class D felons were housed in county jails, and the initial assumptions about prison growth remain valid.
Under the topic of support and respect to victims, the recommendations included creating a Department of Corrections web-based system to provide courts, attorneys, and victims with the offender's risk and needs information, expected time to be served, parole eligibility date, goodtime release date, historic length of time served by similar offenders, and the costs and likelihood for reoffending for various sentencing alternatives.
Recommendations to improve government performance included defining success in corrections as recidivism reduction, and reduction of criminal behavior. Other recommendations included accountability for programs to ensure success, reinvesting savings in evidence-based intervention programs, increased pretrial monitoring as an alternative to jail, increased investment in technology infrastructure, evaluate state funded intervention programs, pilot programs, transitional housing, and GPS monitoring as an alternative to incarceration.
Task force members supported recommendations for presumptive treatment for drug offenses but stressed the need for a community buy-in. Judge Turner indicated he supported the proposal that 50 percent of any savings go to the state with 25 percent to probation and parole and 25 percent to community corrections. Mr. True indicated he supported local community councils if they had guidelines and could reduce the prison disposition rate. Mr. True also indicated concern about the equity of 1 to 3 years of post-release supervision for felons who serve out their sentences. Secretary Brown indicated that future consideration should be given to expanding felony classifications to include class E and F felonies, reapplying penalties within the right range, and the use of day reporting centers as used in Chicago.
As to drug proposals, Mr. Handy suggested using dosage units versus quantity for prescription drugs and further discussion of the precursor statutes with regard to methamphetamine. Senator Jensen indicated he wanted to see a draft relating to double enhancements and persistent felony offender statutes which would eliminate double enhancements and eliminate KRS Chapter 218A from the PFO statute. Mr. True observed he preferred the original drug proposals to the current ones. Chief Justice Minton observed the PFO statute is a plea bargain tool and that virtually no trials are happening in Kentucky.
The task force approved the revised version of the Policy Recommendations, dated January 19, 2011, which contained several changes accepted by the Task Force on January 18, 2011, for submission to the Interim Joint Committee on Judiciary and the LRC.
The meeting adjourned at 11:55 a.m.