Task Force on the Penal Code and Controlled Substances Act


Minutes of the<MeetNo1> 3rd Meeting

of the 2011 Interim


<MeetMDY1> September 14, 2011


Call to Order and Roll Call

The<MeetNo2> 3rd meeting of the Task Force on the Penal Code and Controlled Substances Act was held on<Day> Wednesday,<MeetMDY2> September 14, 2011, at<MeetTime> 1:00 PM, in<Room> 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.


Present were:


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


Guests: Laurie Dungeon, Leigh Ann Hiatt and Jamie Ball, Administrative Office of the Courts; Commissioner LaDonna Thompson, Department of Corrections; Lauren-Brooke Eisen, Vera Institute of Justice Technical Assistance; Chris Cohron, Warren County Commonwealth’s Attorney; Dan Albers, Jefferson County Attorney’s Office; Gretchen Hunt, Kentucky Association of Sexual Assault Programs; Aundria Burkhart, Lexington-Fayette Urban County Police Department; Marissa Castellanos, Catholic Charities; Jan Gould, Kentucky Retail Federation; and Allyson Taylor, Attorney General’s Office.


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


Representative Tilley congratulated Secretary J. Michael Brown, Justice and Public Safety Cabinet, for completing the prestigious Henry Toll Fellowship Program, and Jackie Steele, Laurel County Commonwealth's Attorney, for being recognized as the 2011 Commonwealth's Attorney of the Year.


HB 463 Implementation: Administrative Office of the Courts Update

Laurie Dudgeon, Executive Director, Administrative Office of the Courts, reported on implementation of 2011 RS HB 463 by the AOC, including computer system changes, adoption of 19 new forms, clerk and jailer training on bail and jail credit provisions of the law, and training for judges and circuit clerks. She said more fall colleges are planned to explain the provisions of HB 463. It is too early to fully assess the impact of HB 463, but during the first 90 days following implementation, pretrial releases have increased by two percent, arrests are down, and a new pretrial release risk assessment tool has been implemented. Pretrial release interviews take approximately 45 minutes each, and 1,300 persons classified as moderate risk have been interviewed. “Released on recognizance” has increased from 49 percent to 67 percent, and deferred prosecution has occurred in 34 cases. AOC needs 25 additional pretrial release officers to handle the increased workload. Initial problems included inconsistencies in bail and jail credits and what part of credits may apply to bail or fines. Mr. True said some judges are requiring a confession from persons applying for deferred prosecution which would be admissible in later proceedings, which he felt was not required by HB 463. Representative Tilley commented some of the problems need to be solved by the courts and not necessarily by legislation.


House Bill 463 Implementation: Department of Corrections Update

Commissioner LaDonna Thompson, Department of Corrections, reported the department worked diligently to meet the June 8, 2011 implementation date for HB 463 and is actively working on the January 1, 2012 mandates. She said 1,000 staff members have been trained on the validated risk assessment instrument, including probation and parole officers, additional training was provided for jailers, county judge-executives, prosecutors, defense attorneys, and judicial staff. Thirty-five new policies and four new or amended administrative regulations have been implemented. Practices now in place include compliance credit for parolees, a violation matrix for probationers, parole board hearings held 60 days prior to an inmate’s parole eligibility date, extended placement of Class D felons in county jails, risk and needs assessments, and case planning. Fifty new parole officers have also been hired or will be hired soon. The Administrative Office of the Courts and the Department of Corrections have cooperated on data sharing and other issues of mutual interest.


Reintegration programs and training have been instituted and a Governor's Reentry Task Force was created. The department is working with AOC and the VERA Institute of Justice, and the Bureau of Justice Assistance for additional grant funding. The department is working on mandatory reentry supervision for January 1, 2012, and the use of the risk and needs assessment tool at the time of the presentence investigation in 2013. Challenges include increasing program availability that address criminogenic needs in facilities, lack of resources in communities across the state, and a public data website to be implemented in 2013. Mr. Handy commented on the success of outpatient versus in-house treatment and that resources for substance abuse are presently available in some communities. In response to a question from Mr. Handy about how prosecutors and judges were made aware of available resources, Ms. Thompson said this information will be required to be in the presentence investigation report in 2013. Representative Tilley said existing mental health facilities, such as community mental health centers and Recovery Kentucky, are able to provide outpatient treatment and will be able to expand to meet the state’s needs, particularly if provided with additional resources. Representative Hall, who attended the committee meeting, said Missouri’s community-based treatment program, which uses evidence-based practices, was very successful and the Pike County Jailer supported the Missouri program.


HB 463 Phase II implementation assistance: Vera Institute of Justice Technical Assistance for Implementation of HB 463

Lauren-Brooke Eisen, Center on Sentencing and Corrections, Vera institute of Justice, reported the Administrative Office of the Courts and the Department of Corrections have been cooperating on implementation of the Phase II Bureau of Justice Assistance Grant. Ms. Eisen discussed the BJA requirements and Vera Institute’s role in providing assistance and guidance and discussed implementation in other Phase II states, how the pass-through funding works, and the next steps to be taken. A Justice Reinvestment Initiative Working Group is being established and will be discussing policy options, reinvestment strategies, and developing an implementation plan. Secretary Brown commended the cooperation between the Administrative Office of the Courts and the Department of Corrections and suggested adding the Department of Public Advocacy, prosecutors, jailers, and local officials to the working group.


Commonwealth's Attorneys Updates

Chris Cohron, Warren County Commonwealth's Attorney, described training and discussions about implementation of House Bill 463 at the recent annual meeting of the Commonwealth's Attorneys Association. One concern was that A, B, C, and D felonies use a one-size-fits-none parole eligibility of 15 percent for Class D felonies and 20 percent for all other felonies except violent offenses. Prosecutors would like to increase parole eligibility to 50 percent of sentence in most felonies, and they are considering a new Class E felony classification for minor felony offenses. The prosecutors are preparing a list of reasonable penal code reforms that will address parole eligibility, pretrial jail time credit, and other penalty issues. Another concern is the 20 percent increase in methamphetamine laboratories which prosecutors indicate could be successfully attacked by making pseudoephedrine a prescription drug as has been done in Oregon and Mississippi.


Jackie Steele, Laurel County Commonwealth Attorney, said public awareness meetings are being held statewide to explain the dangers of meth labs to children, families, law enforcement, and even garbage collectors who are finding meth labs in the trash. The meetings will also explain the need for making pseudoephedrine a prescription drug and acceptable, and that there are safe alternatives to pseudoephedrine that do not require a prescription. Mr. Cohron said the prosecutors also support new gang legislation that would validate gang membership, create a gang database maintained by the Kentucky State Police, create enhanced penalties for gang-related crimes, and allow forfeiture of gang assets. Senator Jensen asked if the prosecutors received the Task Force's questionnaire and Mr. Cohron indicated the Prosecutor’s Association is working on their response.


Mr. Handy indicated he supports Project UNITE, High Intensity Drug Trafficking Area (HIDTA), and other efforts at controlling pseudoephedrine as an effective method of reducing meth labs and their hazards. Judge-Executive Turner suggested looking at the problem on a county-by-county basis. Mr. Cohron responded that studies show 80 percent of pseudoephedrine is diverted to methamphetamine manufacturing. Mr. Steele said the state's largest sales of pseudoephedrine occur at a drug store in Laurel County, and his efforts to control the flow met with no cooperation from the pharmacy in question. Secretary Brown suggested meth labs are mini-Chernobyl's and are a state issue.


Making Kentucky's Human Trafficking Law More Efficient and Effective

Gretchen Hunt, Training Coordinator, Kentucky Association of Sexual Assault Programs, accompanied by Marissa Castellanos, Project Manager, Kentucky Rescue and Restore, Catholic Charities, and Detective Aundria Burkhart, Lexington-Fayette Urban County Government Police Department, discussed human trafficking in the United States. She said 14,000-17,000 persons are trafficked into the country each year, and 300,000 domestic minors are exploited each year for commercial sex or labor purposes. Ms. Hunt commented that human trafficking ties the illegal arms trade as the second largest and fastest growing criminal industry in the world.


Ms. Hunt said human traffickers use force, fraud, and coercion to support their trafficking efforts and described two typical cases, one involving sex trafficking and one involving labor trafficking. She said there were 69 confirmed cases of human trafficking in Kentucky and no prosecutions.


Marissa Castellanos discussed the Polaris Project, a national effort to combat human trafficking. Ms. Castellanos said police generally prosecute the victims instead of the traffickers, particularly in sex cases. Among the reforms she recommended were a safe harbor act for child victims to provide social services for them instead of prosecution. She recommended support for law enforcement, establishment of a human trafficking unit at the Department of Kentucky State Police, adoption of the IC3 incident report, RICO-type surveillance programs, asset forfeiture, and mandatory training for the Alcoholic Beverage Commission, peace officers, prosecutors, and judges. Other recommendations included a wage theft statute, mandatory restitution to victims, fines used to provide victim services, civil remedies for victims, and mandatory posters in restaurants and bars with victim hotlines prominently displayed.


Mr. True suggested the task force begin reviewing actual proposals for legislative changes for future meetings in lieu of further presentations about various issues.


The meeting adjourned at 3:00 p.m.