Call to Order and Roll Call
The 4th meeting of the Task Force on the Penal Code and Controlled Substances Act was held on Friday, October 7, 2011, at 1:00 PM, in Room 171 of the Capitol Annex. Senator Tom Jensen, Chair, called the meeting to order, the secretary called the roll, and a quorum was present.
Present were:
Members: Senator Tom Jensen, Co-Chair; Representative John Tilley, Co-Chair; J. Michael Brown, and Tommy Turner.
Guests: Michael Bischoff, Kentucky Association of Chiefs of Police; Douglas Wain, War Against Violence; Marylee Underwood, Kentucky Association of Sexual Assault Programs; Ed Monahan and Damon Preston, Department of Public Advocacy; Ernie Lewis, Kentucky Association of Criminal Defense Attorneys; Lt. Col. Joe Williams, Kentucky State Police; and Lt. Chris Van Brackel, Lexington Metro Police Department.
LRC Staff: Norman Lawson Jr., Jon Grate, Joanna Decker, and Rebecca Crawley.
The minutes of the September 14, 2011 meeting were approved without objection.
Discussion of defense bar proposals for task force recommendations
Ernie Lewis, Kentucky Association of Criminal Defense Attorneys, said his organization represents 300 criminal defense lawyers across the state. KACDL’s priorities include reform of persistent felony offender statutes, implementation of 2011 House Bill 463, establishment of a Class E felony, reclassification and decriminalization of offenses, opposition to proposed gang legislation, and parole restrictions. Mr. Lewis said the expanding provisions of the persistent felony offender (PFO) statute and its increasing sentences have contributed to prison overcrowding and have been used by prosecutors as a bargaining tool for plea agreements from defendants. He said 98 percent of cases are now settled by plea bargains instead of jury trials, resulting in a shift of power from judges and juries to prosecutors. KACDL supports use of evidence based practices, reduced emphasis on incarceration, the treatment of drug abuse as a medical problem, and other advances in HB 463, and urges the committee to adequately fund treatment and alternatives to incarceration. One in five Kentucky prisoners have been convicted under PFO statutes, over 4,000 persistent felony offenders are serving an average sentence of eleven years, costing the state $28 million annually or $317 million if they serve out their sentences. He recommended Kentucky return to the originally enacted PFO statute, eliminate PFO 2, require actual incarceration for the underlying offense, and restrict PFO 1st degree to violent felonies. He recommended using the higher number of years in the prescribed penalty ranges for repeat offenders.
Mr. Lewis said pushbacks to House Bill 463 include deferred prosecution, citations rather than arrests, and pretrial release. KACDL recommended expanding KRS 431.015, relating to citation and arrest for misdemeanors, to include other appropriate offenses, clarifying the deferred prosecution statute, and strengthening the pretrial release statute. KACDL also supports creation of a Class E felony classification but cautioned against moving some misdemeanor crimes into the new felony classification. He urged the task force to eliminate sentence enhancements and barriers to restoration to society, including expanded expungement, restoration of voting rights and elimination of job restrictions. He urged the task force to consider reclassification of offenses, such as lowering felony classifications, moving some Class D felonies to misdemeanors, making some misdemeanor violations, resulting in incarceration savings, smaller dockets, and a more efficient court system. Senator Jensen asked how many persons were charged with being a PFO only to have the charges dropped in exchange for a guilty plea to another offense. Mr. Lewis said he would try to get that figure and provide it to the committee. When asked about prosecutor's objections to deferred prosecution because of the difficulty in preserving evidence and requiring persons to plead guilty or admit the facts prior to deferred prosecution, Mr. Lewis responded that preserving evidence for two years is not that difficult and persons should not be required to admit guilt in exchange for deferred prosecution. He said KACDL opened a dialog with county attorneys and he was hopeful it would be productive.
Mr. Lewis said KACDL supports the proposed database for gangs and gang-related activities and offenses, but questioned the approach discussed at the September meeting. He was very concerned about the proposed sentence enhancements and said crime data does not indicate this is a statewide problem.
Ed Monahan, Public Advocate, Department of Public Advocacy, said his agency defends 150,000 cases per year, with an average caseload of 500-600 new cases annually per public defender, hampering the ability to provide defendants with proper defense. High caseloads affect whether DPA recommends clients go to trial instead of accepting plea agreements, and data indicates if an attorney is present at the first court appearance, the odds are much better for getting pretrial diversion for clients. Moving selected misdemeanors to citations would help lower caseloads and allow DPA to better represent its clients. Kentucky spends $169 million annually to incarcerate persistent felony offenders and violent offenders. Two hundred seventy-four of these offenders are over sixty-five years old and statistics show that recividism falls sharply as people age, another unintended consequence of PFO sentence enhancements. He recommended allowing juries to decline to sentence on persistent felony offender charges, which they are not allowed to do under current law. He urged the General Assembly to provide DPA with additional resources to reduce caseloads and improve service.
Damon Preston, Deputy Public Advocate, said DPA conducted a survey of its public defenders on implementation of House Bill 463 and discussed the results. Successes included increased use of pretrial release, fewer misdemeanor arrests, and lower sentences for low-level traffickers. Areas needing more work included deferred prosecution, pretrial release, and clarification on use of bail and fine credits. Mr. Preston said it is ironic that pretrial release was considered both a success and a failure of HB 463. In the big picture, it works but some judges are not following the intent of the legislation. He suggested clarifying language for deferred prosecution and making it mandatory instead of allowing judicial and prosecutorial discretion, and clarifying how bail credit and jail sentence credit are to be used. Other recommendations included presuming the risk assessment is valid by law, defining what constitutes a high risk defendant, increasing the number of offenses for which citations are issued instead of arrest, requiring records expungement in more cases, and curtailing abuses of discretion by police and prosecutors.
Mr. Monahan said DPA supported creation of a new Class E felony classification and suggested it include offenses with sentences between one and two years with automatic probation at sentencing, would not be eligible for persistent felony offender and could not be used for later PFO or enhancement, probation should be limited to two to three years instead of five, expungement should be automatic or obtainable, should be exempt from statutory employment barriers, and should not be eligible for transfer from juvenile court. He suggested possible offenses which would fit this proposed felony category, including flagrant nonsupport, possession of controlled substance 1st degree, theft over $500 but under $2500, obtaining benefits by fraud, assault 3rd degree, and tampering with evidence, among others.
Mr. Monahan suggested reducing some misdemeanors to violations, which would still hold offenders accountable and maintain their rights to a jury trial. This proposal would save money through fewer court proceedings, no court-appointed attorneys, no county jail expenses, and no conditional discharge and supervision costs. He suggested several misdemeanors which could be reduced to violations, including lack of insurance, driving on a suspended license, disorderly conduct, and public intoxication, among others.
Mr. Monahan urged increased funding and expansion of the DPA alternative sentencing social worker program to all 120 counties. The state saves about $100,000 annually for each DPA social worker because of lower incarceration and lower recidivism.
Discussion of law enforcement proposals for task force recommendations
Lt. Chris Van Brackel, an attorney and law enforcement officer with the Lexington Fayette Urban County Police Department, recommended repealing the provisions in HB 463 that decreased the right of police to arrest for misdemeanors and required the use of citations. Lt. Van Brackel said the provisions hamper law enforcement’s ability to investigate after arrest, and they allow repeat offenders to continue to commit crimes while awaiting their court date. Statutes relating to arrest are now contradictory, leading to confusion and the potential liability for false arrest. Projected savings in incarceration are not worth the increased cost of crime and decreased feelings of public safety. Some of the specific problems when an officer is required to cite rather than arrest include the inability to conduct a search or fingerprint and photograph the individual, and the inability to have the person questioned by a detective. A custodial arrest allows time for further investigation and has a deterrent effect. Since Lexington police began issuing citations, failures to appear in court for misdemeanors have increased significantly, and K-9 units are not used in Lexington unless the police can make an arrest when the suspect is found. Lt. Van Brackel said the PEW Foundation favored immediate sanctions for offenders which a custodial arrest provides. Secretary Brown commended Lt. Van Brackel on his presentation and commented the PEW Foundation's immediate sanctions were predicated on the person being convicted of the offense, not just charged with one. Lt. Van Brackel responded his statement had been misunderstood. Lt. Van Brackel also said the language about a danger to self or others and failure to follow reasonable orders needs clarification. County Judge-Executive Turner said the requirements for issuance of a citation were saving money for counties and the $25 booking fee charged by many jails would not offset the cost of incarceration.
Lt. Col. Joe Williams, Kentucky State Police, made several recommendations to the task force, including clarification of citation and arrest language, such as adding theft by unlawful taking to the shoplifting exception, expansion of the data elements for lying to police about name and address to include date of birth, social security number and other items, permitting a peace officer to issue a citation for any misdemeanor where the officer had reasonable cause to believe the defendant committed the misdemeanor rather than requiring the officer to witness the action, cumulating the drug possession limits over a 90 day period similar to the accumulation of drug trafficking offenses, expanding internet child exploitation legislation to cover contact without effort to meet the child, criminalizing sexual chatting, and prohibiting sex offenders from photographing children. Senator Jensen said the task force is still seeking suggestions and urged submission of additional suggestions.
Douglas Wain, Violence Prevention Through Education, said while overall crime may have decreased, violent victimization remains steady, and gun crime in Lexington is up by 300 percent. He urged the state to provide more education on prevention of violent crime and victimization, urged the adoption of a free sales tax day for any community with a ten percent drop in violent crime, and urged creation of a task force to study violent crime. Education is the best way to reduce violence. His organization is known as waragainstviolence.com.
Senator Jensen announced the next meeting of the Task Force will be November 18, 2011. The meeting adjourned at 3:25 p.m.