Task Force on the Penal Code and Controlled Substances Act


Minutes of the<MeetNo1> 5th Meeting

of the 2011 Interim


<MeetMDY1> November 21, 2011


Call to Order and Roll Call

The<MeetNo2> 5th meeting of the Task Force on the Penal Code and Controlled Substances Act was held on<Day> Monday,<MeetMDY2> November 21, 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, John D. Minton, Jr., J. Guthrie True, and Tommy Turner.


Guests: David Wallace, National Center for DWI Courts; Larry Chandler, John Cummings, Shannon Jones, Caroline Mudd, Neeka Parks, and Amanda Spears, Kentucky Parole Board; Matt Stanton, Beam, Inc.; Bob Stokes, Office of the Attorney General; Marti White, Kentucky Spirit; Bill Patrick, Kentucky Association of County Attorneys; Marylee Underwood, Kentucky Association of Sexual Assault Programs; Anne Hadreas, Kentucky Equal Justice Center; and Lynn Pryor, Commonwealth’s Attorneys Association.


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


The minutes of the October 7, 2011 meeting were approved without objection.


Commonwealth’s Attorneys’ Recommendations to the Task Force

Chris Cohron, Warren County Commonwealth’s Attorney, and Lynn Pryor, Christian County Commonwealth’s Attorney, presented their recommendations for the 2012 General Assembly.


Mr. Cohron said a serious review must be made of the classification of felonies and the sentencing structure surrounding them. Prosecutors, judges, and victims have no realistic concept of what kind of parole math is being used on defendants once they enter the Department of Corrections. The current sentencing structure and jail credit scheme makes truth in sentencing meaningless and causes misinformation to crime victims. Many have suggested elimination of parole and the parole board and adoption of the Virginia system of determinate sentencing. He also suggested the addition of a Class E felony, but only if coupled with a third classification for felony offenses for parole eligibility purposes. The only two classifications for felonies are the 15/20 percent parole eligibility offenses versus the 85 percent parole eligibility offenses under KRS 439.3401. The addition of a third felony classification with 50 percent parole eligibility offenses should also include a limitation on jail credits earned while in custody of DOC.


Mr. Cohron suggested making Pseudoephedrine (PSE) available only by prescription. Cost savings would include an enormous decrease in Class B felony manufacturing methamphetamine cases. It would virtually eliminate smurfing, and the health care savings for counties and the state would be enormous.


Lynn Pryor, Christian County Commonwealth’s Attorney, suggested revamping Kentucky’s gang statutes to include a uniform statewide database to allow law enforcement to identify and track gangs and gang-related activities, forfeiture of gang assets, and sentence enhancements for gang related crimes. Gang activity is a growing statewide problem. Mr. Handy and Mr. True said gang activity is not a problem in their parts of the state.


Secretary Brown asked if there were any other HB 463 issues the task force needed to consider. Mr. Cohron said during educational sessions throughout the state, the most common problem has been widespread misinformation about the bill’s provisions. He suggested prosecutors be given access to the KASPER prescription drug monitoring database to assist in drug prosecutions. Secretary Brown suggested delineating the difference between felony offenses based on whether the offense is one against property or one against a person. Mr. True said the problem of victim notification for parole hearings is not a problem of lack of statutory clarity. HB 463 calls for implementation of improved victim understanding about sentencing. Mr. True asked if prosecutors would agree to modification of the persistent felony offender statutes, and Mr. Cohron said prosecutors would only consider this upon adoption of determinate sentencing. Mr. True suggested the prosecutors meet with the Department for Public Advocacy and criminal defense attorneys to propose a compromise for consideration by the task force.


Representative Tilley suggested the task force look at legislation expanding prohibitions against synthetic drugs and the possibility of aggregating drug purchases to determine the difference between drug dealers and drug peddlers.


Parole Board Recommendations to the Task Force

Larry Chandler, Kentucky Parole Board, and Staff Attorney John Cummings suggested increasing the term of Parole Board members from four to six years, correcting an apparent conflict between KRS 439.355 relating to the inmate risk/needs assessment and KRS 439.3104, clarifying that supervision of parolees is within the jurisdiction of the Department of Corrections, amending KRS 439.3406 to clarifying the Parole Board's authority to hold hearings relating to violation of pre-release supervision conditions, limiting pre-release supervision to those sentenced to more than five years, and clarifying the effect of nonpayment of restitution on final release from supervision by permitting release even though restitution has not been paid.


Mr. True said states that have eliminated parole have experienced increased incarceration costs even though sentence lengths were reduced. In response to a question from Mr. Handy about the board’s failure to notify victims and prosecutors prior to the release of a person on parole from his county, Mr. Chandler responded they should have received notification prior to the release. Mr. Handy then asked why a parole hearing was scheduled for an inmate from Laurel County who is on death row, and Mr. Chandler said there was confusion about the state of the inmate's appeal of his conviction, and when the situation was clarified, the hearing was canceled and should not have been scheduled. He said it was not unusual for a victim or prosecutor to be notified of a parole hearing and not reply to the board before or at the parole hearing.


DUI Courts

Matt Stanton, Vice President-Public Affairs and Corporate Social Responsibility, Beam Inc., and David Wallace, Director, National Center for DWI Courts, discussed the benefits of implementing specialized DWI courts in Kentucky. Mr. Stanton said the most dangerous drunk drivers are hard core abusers of alcohol or drugs and are responsible for 70 percent of alcohol related accidents. These persons need actionable and measurable programs to address their alcohol problems. Mr. Wallace said Kentucky’s current alcohol education programs along with incarceration do not address or correct the person's drinking problem nor change the person's behavior. He advocated an evidence-based long term treatment program with immediate sanctions for continued violation of the terms of participation in the program. Programs with intensive treatment and supervision have been proven to reduce recidivism, but take one to two years to yield tangible results. Mr. Wallace said a person who has successfully completed the DWI court program is nineteen times less likely to recidivate. Participants are placed on intensive supervised probation which allows them to continue working and maintain family contact, and are required to pay to participate in the program. When asked about the use of ignition interlock devices, Mr. Wallace said they might work for the occasional drinker but are less effective for the problem drinker who needs intensive treatment. In response to a question from Representative Tilley about requiring the defendant to plead guilty before entering a deferred prosecution program, he was told no one is doing this at present; the person is found guilty and the sentence is to the program following conviction.


Discussion turned to how the programs operate and what happens if the person does not show up for testing. Mr. Wallace said that, during the early part of the program, it is expected that the person may fail an alcohol test, is then sentenced to a day in jail, and may require additional counseling. He said if the person continues to fail testing later in the program, an immediate sanction of two days in jail is imposed. He said short, immediate sentences work better than later, lengthy sentences without treatment. He stated that Kentucky’s current drug and alcohol education programs may benefit a social drinker but are not effective for a person with an alcohol problem.


Results First Pilot Project

Mike Clark, LRC Economist, discussed the Results First project. This model was developed in Washington State to evaluate the potential effects of various program options in criminal justice and other fields. The program has been very effective in Washington and is currently being sponsored for adoption in other states by the PEW Center for the States. LRC has authorized the Staff Economist Office to conduct a pilot project for the task force to evaluate program options for the upcoming session of the General Assembly. The program will use nationwide data on various programs and those programs’ levels of success to predict how program options might work in Kentucky. 


Tara Klute, Chief Operating Officer, Division of Pretrial Services, Administrative Office of the Courts, reviewed statistics on arrests, pretrial release, failure to appear, and other issues following implementation of HB 463. The data showed fewer persons being arrested, fewer persons committing new crimes after arrest and prior to trial, a significant increase in the release of high risk offenders prior to trial on supervised release, and a reduction in failures of released persons and persons cited rather than arrested failing to appear for trial from ten percent to eight percent. Ms. Klute said the Administrative Office of the Courts will continue to study the impact of HB 463 and provide continuing data to the task force and the General Assembly.


Discussion of Final Task Force Recommendations and Next Steps

Representative Tilley said there is general sentiment to continue the task force for the 2013 session of the General Assembly and to add subjects including juvenile law and synthetic drugs to the mission. The next meeting is scheduled for the morning of December 16 in order to make recommendations to the Interim Joint Committee on Judiciary that afternoon. Representative Tilley urged members to submit their suggestions for the report as soon as possible so it can be prepared prior to the meeting.


The meeting adjourned at 3:20 p.m.