The4th meeting of the Interim Joint Committee on Judiciary was held on Tuesday, October 21, 2008, at 10:00 AM, in Room 171 of the Capitol Annex. Representative Kathy W. Stein, Chair, called the meeting to order, and the secretary called the roll.
Members: Rep. Kathy W. Stein, Co-Chair; Rep. Greg Stumbo, Vice-Chair; Sen. Perry B. Clark, Sen. Carroll Gibson, Sen. Ray S. Jones II, Sen. Jerry P. Rhoads, Sen. Dick Roeding, Rep. Kevin D. Bratcher, Rep. Joseph M. Fischer, Rep. Mary Lou Marzian, Rep. Darryl T. Owens, Rep. Steven Rudy, Rep. Robin L. Webb and Rep. Brent Yonts.
Guests: J. Michael Brown, Secretary of the Justice and Public Safety Cabinet; Mike Davis, President of Appriss; Trey Grayson, Secretary of State; Jason Underwood, National Notaries Association; Gatewood Galbraith, Attorney at Law; Professor Robert G. Lawson, University of Kentucky College of Law and Ray Larson, Fayette County Commonwealth Attorney.
LRC Staff: Norman W. Lawson, Committee Staff Administrator, Ray DeBolt, Joanna Decker, Jon Grate, Carolyn Gaines, Secretary, and Andrew Howell.
Chairman Stein moved to the first presentation on the agenda, regarding the Justice and Public Safety Cabinet’s Public Safety First initiative. The two invited speakers were J. Michael Brown, Secretary of the Justice and Public Safety Cabinet, and Mike Davis, President of Appriss.
Secretary Brown began his presentation by stating that in April 2008, he noticed that some of the law enforcement programs that Appriss provided the state were being utilized under federal grants provided by Homeland Security, some of which would be drying up in the near future. He also learned that the programs were being used in a piecemeal fashion by many different agencies. The Secretary saw an opportunity to create a virtual net of protection and information with greater access to statistics and information across many different agencies than had ever been possible before. As one example, he cited the problem that existed when corrections released an individual. If that individual crossed paths with the criminal justice system again, corrections would not know this until after a conviction. There was no way to access information on individuals who had been released and their current status. Kentucky is the first and only state in which all of this type of information is under one umbrella. Bringing all of the contracts under one in the Justice Cabinet allowed the realization of more efficiency under the Justice Cabinet budget. Secretary Brown introduced Mike Davis.
Mike Davis, the President of Appriss, stated that this company started in Jefferson County with VINE, the victim notification program in Kentucky, and has grown in the last 15 years. Now, 39 states have followed Kentucky’s lead in victim notification, and the company has grown from a two-person company to 300 employees in order to service all of these states. The first three programs involved victim notification. VINE keeps victims informed about offenders in custody. VINE Courts informs victims about upcoming court hearings, and VINE Protective Order alerts victims when protective orders are served, as this can be the most dangerous time for the victim. Mr. Davis stated that this program would have lost its funding under a federal grant if Public Safety First had not stepped in.
Another program Appriss offers is the JusticeXchange, which shares offender information from throughout the country with law enforcement. This program monitors over 80% of all inmates in the U.S. that are in jails or prisons, making it the only center that has this information in real time, and over 40 states are participating in this program. This program is very valuable to law enforcement, particularly when officers are attempting to locate an offender. Another program, MethCheck, helps to identify in real time when cold medicines are sold so law enforcement can identify meth labs. SONAR is a program that improves the management of sex offenders and improves the accuracy of information regarding public notification about sex offenders. Finally, AlertXpress is a program that provides rapid emergency notification for people living near custodial institutions.
When Secretary Brown began with the Cabinet, the programs used by the state were scattered throughout different agencies. The Department of Corrections, the Department of Homeland Security, Kentucky State Police, and the Office of Drug Control Policy all had some of these programs. Public Safety First was an initiative to combine all of the programs to offer more technology for less cost and bring all of the programs under one umbrella at the Cabinet level. All of these services are currently functioning in the state. In the first 12 months, $545,000 in service fees have been reduced and negotiated based on expanded services, and over the first two years, there will be more than $835,000 in fee reductions.
Mr. Davis spoke next regarding the JusticeXchange program. Before Public Safety First, the state had procured 600 licenses to be used among local and state law enforcement agencies to use this program. These licenses had to be used carefully because there were not enough to go around. Under the Public Safety First initiative, the license program was renegotiated into an unlimited enterprise license, with a savings of 22% in fiscal 2009 year, with as many users as the Cabinet wishes. Some of the real world uses for this program are: collecting child support, locating sex offenders, serving warrants, locating missing persons, and finding murder suspects who are located in other states. By expanding the program’s availability to more law enforcement, this program will help solve a lot of crimes and locate offenders. Federal funds for this program will not have been available in the near future, and Kentucky would have lost all access to this information had it not been for Public Safety First.
Next, Mr. Davis spoke about the SONAR program. Kentucky’s current sex offender notification program allows people to sign up to be notified if a sex offender moves into a specified zip code. A zip code is a large geographic area, and notification that a sex offender has moved into a specific zip code may not be very helpful to the public. The Public Safety First improvements include mapping of the offender address and email notification based on a specified radius from the citizen’s home. This program also sends out automated reminder calls to sex offenders when they are supposed to register according to state and federal law.
Regarding MethCheck, Mr. Davis informed the committee that this program was deployed June 1, 2008, and had already blocked the attempted purchases of illegal amounts of pseudoephedrine, enough to produce more than 12,000 grams of meth with a street value of $1.2 million.
Rep. Webb asked where the cost savings came from and what is intended over the next biennium. Mr. Davis responded that the cost savings originated from the renegotiation of the contracts the state already had and cost reductions to the state. For example, the JusticeXchange program was reduced about $100,000. Rep. Webb asked Secretary Brown to describe how this would impact the state’s budget. Secretary Brown responded by saying that these programs will be funded and implemented via savings and initiatives in other parts of the Cabinet, so there would be no necessary budget increase.
Rep. Webb raised concerns about unlimited access to the technology and information offered by these programs and wanted to know if there would be any safeguards that would be created to guard against abuse. Secretary Brown clarified the phrase unlimited access to mean that the state would not be limited to 600 licenses; it did not mean unlimited access to anyone who is not within the law enforcement community. Rep. Webb wanted to know if there is some way to track the access to information. Mr. Davis responded that anytime information is accessed from the programs, it is recorded.
Rep. Webb asked if there were any administrative criteria to accommodate the tracking of the access to these programs. Secretary Brown responded that no new regulations would be necessary, as there was no change in the access, as pass codes, usage, and training were already in place. The Cabinet can get reports on who has been on the system and what they were looking for.
Rep. Webb asked if access would be limited to law enforcement. Mr. Davis responded that some prosecutors have access to it, but it is mostly used by law enforcement and investigative agencies with the state.
Rep. Webb said she would like to see this technology taken to Congress for legislation to help track prescription pills through commerce to help deal with prescription drug abuse.
For the next presentation, Rep. Stein introduced Secretary of State Trey Grayson for his presentation on legislative proposals for 2009.
Secretary Grayson began his presentation by referencing the bill proposed by his office in the previous session, SB62 that provided for address confidentiality for victims of domestic violence. His office is working to improve the bill for reintroduction in 2009. This bill would allow crime victims and their families to engage in common activities, such as voting, without fear of being tracked down by the offender. Voter registration lists are public record, and in some cases, certain information is searchable online. An offender could type in a person’s birth date and name and get the corresponding address. The bill would create a program to provide a substitute address to be used by governmental entities for voting and mail purposes. Secretary Grayson noted that 23 states currently have a similar program and that his office is working to improve the bill to clear up language regarding program eligibility, among other things. The Secretary of State is considering the possibility of initiating this as a pilot program. Secretary Grayson pointed out that this program would create no financial impact on current budgeted funds, and that his office currently has the staff and structure to maintain this program.
The second legislative proposal presented by Secretary Grayson is a notary bill that was introduced by Rep. Simpson during the last session. He stated that the goal of this bill is to strengthen Kentucky’s notary laws for the 21st century. The current version of the bill would heighten eligibility requirements for notaries. The Secretary noted that there is no current requirement for a notary to be a United States citizen, and there is no definition for “good character.” Also, the bill would require the utilization of a unique identifier for each notary so they are easier to track down, and the bill would require each notary to use a seal as well as a journal to record all notarizations.
Secretary Grayson then introduced Jason Underwood, who represents the National Notaries Association, to discuss electronic notarization, which is not in the current version of the bill. Mr. Underwood began his presentation by noting that the County Clerks’ Association and other groups were also interested in e-notarization as a way to modernize the system and promote the ease of transferring instruments across state lines. He stated that e-notarization consists of two parts: the electronic signature and the electronic journal. The electronic signature is to be unique to each notary, independently verifiable, and tamper evident. Licensed attorneys would be exempt unless they opt in. The electronic journal would be under the control of the Secretary of State as a centralized database. Next, Mr. Underwood gave some reasons why e-notarization was needed. Secure e-notarization allows electronic documents to be proved in court because documents can be tested for alterations. This e-signature would be encrypted and difficult to tamper with. E-notarization also provides trustworthiness, efficiency, and forgery protection.
Rep. Stein asked for an example of a unique identifier for each notary. Secretary Grayson responded that this will be an identification number assigned to a notary which would also create a way to distinguish between notaries with similar names.
In response to questions and concerns from Rep. Yonts regarding the criminal penalties surrounding the journal requirement, Secretary Grayson informed him that the penalty for failure to keep a journal was a misdemeanor and explained that attorneys are exempt from this requirement because attorneys have a heightened burden under the Code of Professional Responsibility to refrain from notarizing improper documents. Rep. Yonts continued to express concern for the misdemeanor penalty and the effect that might have on the costs of incarceration for local jails. He recommended changing the penalty to a fine, and Secretary Grayson agreed to consider that suggestion.
Rep. Owens asked why there should be a requirement for a seal if each notary has a unique identifying number. Secretary Grayson stated that the seal looks more official and offers greater protection. Mr. Underwood pointed out that under the e-notary provisions, there may not need to be a seal requirement.
Rep. Webb expressed concern that additional requirements imposed on notaries may pose problems in rural areas, where it would be more difficult to have access to notaries. She questioned the impetus for this legislation and wanted to know if there had been more fraud or undesirable notaries. Mr. Underwood pointed out that in Kentucky there is no centralized database for determining who is a notary, as this is a county responsibility. In response to comments from Rep. Webb, Secretary Grayson replied that a centralized database could not be created, as he could not require counties to do that. Rep. Webb commented that creating a database would be a better place to start rather than imposing new requirements on notaries. Mr. Underwood replied that his group is considering a pilot program for the electronic portion of the bill for counties that have the capability for this. Secretary Grayson commented that they have been working to strike the proper balance of strengthening the requirement by making it more meaningful to the consumer as a consumer protection device without being too burdensome for notaries and individuals protected by notaries.
Rep. Owens asked whether there would be two different types of notaries, the usual notary and the e-notary. Secretary Grayson replied that there would be two different categories, and that there would be an extra step to be an e-notary. Rep. Owens expressed concern that this may be a slippery slope in that the e-notary may also be required eventually.
Rep. Stein welcomed the newest member of the committee, Rep. Marzian.
The next speaker, Gatewood Galbraith, wished to speak on some things that were discussed in the Penal Code Subcommittee the day before. His advice on penal code reform was that the legislators should not listen to lobbyists for private prisons, as it is in the interest of the private prisons to keep as many people in prison as possible for a profit. Next, he said the subcommittee should look at changing the paraphernalia law. It is his opinion that a second time paraphernalia offense constitutes a felony and is absurd. The third issue he addressed was the PFO (Persistent Felony Offender) law. Mr. Galbraith believes that in order to charge someone as a persistent felony offender, there should be an initial violent act, not just any felony. Finally, he stated that marijuana should not be categorized as a Schedule I, no medical use drug. Fifteen states and the American Academy of Physicians have recognized its medical utility. He finished by saying that the legislators need to understand the true nature of addiction to deal with this problem.
The next topic of discussion was the PFO laws, and the speakers were Professor Robert G. Lawson from the University of Kentucky College of Law and Ray Larson, Commonwealth's Attorney of Fayette County. Professor Lawson suggested that there are too many people being incarcerated in the state, and Kentucky has the highest rate of increase in the inmate population in the nation. Over the last four years, the state has added approximately 5,000 to 6,000 inmates. The Penal Code has been modified many times over the years, usually with increases in penalties. He is concerned about the fairness of the penalties and the overcrowding of jails due to the fact that prisons are full. The current number of long-term inmates in Kentucky jails is approximately 7,500, and Professor Lawson expressed concern that rehabilitation efforts are inadequate and that the re-entry program is weak. Professor Lawson stated that he has undergone a major task of writing with regards to PFO (persistent felony offender) laws, receiving much opposition as a result. Professor Lawson said that the law has changed much since the first Penal Code was enacted in 1974.
Professor Lawson suggested selective reform, with a particular emphasis in two areas. First, the PFO laws contribute heavily to the increase in the inmate population. He called attention to an article he has written that focuses on the PFO law and how it has changed since 1974. The article also compares Kentucky’s law with the laws in 15 other states and shows that Kentucky’s law is broader. His particular concern is how the law is being used, especially against non-dangerous non-serious offenders. Second, his opinion is that the drug laws need a total overhaul.
Representative Yonts inquired as to what impact the Parole Board has had on the increasing inmate population and whether this needs reform. Professor Lawson replied that he looked at data since 1980 regarding statistics, hearings and annual Parole Board reports. Professor Lawson said that there had been a toughening of attitudes and that the number of granted paroles has dropped and there has been an increase in serve-out orders. It is his opinion that no reform of the laws will be quick or easy. He believes the sentencing laws need to be reexamined, as they are out of sync with attitudes of today. The current code was enacted with indeterminate sentencing, with the idea of rehabilitation at the top of the list. Today, punishment is at the top of the list. These tougher penalties are at odds with the rehabilitative model that is at the core of the indeterminate sentencing laws. There is a new model code by the American Law Institute that addresses this problem of sentencing laws being out of sync with philosophy. He suggested that the legislators examine this.
Professor Lawson also suggested that sentencing guidelines and sentencing commissions be examined. He also recommended reading “Unlocking America” by the JFA Institute. This new model contemplates almost a complete elimination of the parole system, like the federal system did in the 1980’s. Professor Lawson does not necessarily agree with this aspect, as he feels that a release decision may sometimes best be made by someone with all of the pertinent facts and information on an inmate. However, the system today is so overloaded, that it would seem a heavy burden on the few Parole Board members that we have. Professor Lawson said his main problem with the current parole system is that state inmates incarcerated in jails do not see the Parole Board face-to-face. Rather, a decision regarding parole of these inmates is based on paper reports.
Professor Lawson further stated that it is most imperative for inmates to be rehabilitated and educated due to the fact that the average reading level of all inmates is on a mere sixth-grade level. Reducing the number of people the state is locking up will free up the funds for rehabilitating inmates. The last prison the state built cost about $90 million.
Representative Owens said that there was an uneven manner with which individuals are charged with PFO. He asked whether it would make sense to require a PFO charge to be a higher level felony. Professor Lawson responded that there is a problem with justice by geography, which relates to the fact that where a person is prosecuted will dictate the application of the PFO law. Originally, the PFO law was to be for rare, extraordinary use. In 1974, the PFO law would not be used until there were three convictions, and the first two convictions required separate periods of imprisonment. At this point, rehabilitation was not the proper objective. Most other states’ PFO laws require a previous “serious” or “violent” offense, and the PFO law still cannot be used unless there were multiple previous convictions. Professor Lawson stated that we need to get away from the routine use of the PFO law to jack up penalties against non-serious, non-violent offenders. This will have a great impact on the incarceration numbers. Professor Lawson sated that the original intent of the penalty ranges is to take into account what a defendant has done before, rather than just give the maximum amount.
Representative Bratcher said that most people prefer incarceration, not rehabilitation. Professor Lawson replied that he thought the public led the direction of the war on crime and that since the 1960's and 1970's, or for a period of approximately 35 years, the law has been tough on criminals. Thirty-five years ago, we had about 3,000 inmates, and at this time, we now have approximately 21,500, or over seven times as many. This has not served a public protection service, as the crime rate is almost identical today as 35 years ago. Professor Lawson said that there are approximately 2.5 million inmates in the United States and that approximately 500,000 inmates are released yearly. These inmates are worse after being released from prison, and they are being released into an inadequate reentry system. This is a public safety issue.
Senator Jones commented about the explosion of drug-related offenses in Eastern Kentucky in recent years, and the fact that there is no end in sight. There are not enough probation or parole officers in place to monitor these people. He stated that the public wants to criminalize everything, but it might be better to find alternatives to incarceration. Senator Jones wanted to know how to go about gaining control of young individuals who are convicted of felonies, which leads to a whole host of other problems. He also asked how to deal with the drug epidemic. Professor Lawson stated that he believes the drug problem in Kentucky has been exaggerated and that, according to a recent University of Kentucky study, there is no methamphetamine epidemic in Kentucky. Professor Lawson reiterated that in order to improve treatment and rehabilitation efforts for addicts, it is imperative to reduce the number of persons incarcerated. Senator Jones further stated that Eastern Kentucky is being decimated by a high number of drug overdoses and wanted to know how to deal with the problem of drugs there.
The next speaker was Commonwealth's Attorney of Fayette County, Ray Larson, who addressed Senator Jones' concerns. Mr. Larson believes that the primary purpose of government is public safety. He is concerned that first-time offenders are not incarcerated and that 5% to 6% of offenders commit 50% to 80% of the crimes. These types of offenders are the ones against whom the PFO law should be used. Mr. Larson further stated that the Parole Board really determines the length of the incarceration of a convicted inmate. Commonwealth Attorney Larson indicated that crime has increased 15% in recent months in Fayette County. Three and a half years ago, Mr. Larson started a program that meets with parolees and probationers every other Tuesday. They meet with people in substance abuse programs, vocational education programs, and job assistance programs. Mr. Larson suggested that 67% of all prisoners in the United States who have been released from prison will return to prison within three years, and that 44% of prisoners who have been released from prison in Kentucky will return to prison in that time. In Fayette County, with the people involved in that program, that number goes down to 20%. Mr. Larson emphatically stated that there must be consequences the first time every time a crime is committed. He also stated that if a change is made in the PFO laws that it should not be made in the budget bill.
Representative Webb suggested that rehabilitation will not work on those criminals with other factors, like mental illness, addiction or brain injuries. She then asked about Fayette County’s application of the PFO law. Mr. Larson stated that his office has been utilizing a rapid disposition program for people charged with certain Class D felonies. For certain charges, his office will allow a person to plead guilty without being charged as a PFO. Rep. Webb finished her remarks by defending the language that was added to the budget bill as a type of pilot program, and that these initiatives were not novel, as they had been implemented in other states.
Representative Stumbo disagreed with Professor Lawson’s hypothesis that the inmate population increase is mostly due to the application of the PFO law. He commented on the explosion of the inmate population and believes it is related to drugs and other factors. He asked that the Judiciary Committee staff draw parallels to the number of drug offenses to other crimes, stating that a boom in drugs is equal to a boom in crime and number of prisoners.
Representative Stein added that the public must be kept safe and that children must be educated at an early age with regards to drugs. Senator Rhoades stated that rehabilitation must be continued and that it is uplifting to attend a drug court graduation. Representative Stumbo suggested that there needs to be a program implemented to keep kids off drugs, and that funding is needed for the education and treatment of drug abusers.
The meeting was adjourned at approximately 12:40 P.M.