Interim Joint Committee on Judiciary


Minutes of the<MeetNo1> 2nd Meeting

of the 2009 Interim

Room 171, Capitol Annex


<MeetMDY1> August 7, 2009


The<MeetNo2> 2nd meeting of the Interim Joint Committee on Judiciary was held on<Day> Friday,<MeetMDY2> August 7, 2009, at<MeetTime> 10:00 AM, in<Room> Room 171 of the Capitol Annex. Senator Robert Stivers II, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Robert Stivers II, Co-Chair; Representative John Tilley, Co-Chair; Senators Perry B. Clark, Carroll Gibson, Ray S. Jones II, Gerald A. Neal, Mike Reynolds, Jerry P. Rhoads, John Schickel, Dan "Malano" Seum, Katie Kratz Stine, and Jack Westwood; Representatives Johnny Bell, Jesse Crenshaw, Joseph M. Fischer, Kelly Flood, Thomas Kerr, Mary Lou Marzian, Darryl T. Owens, Tom Riner, Steven Rudy, Robin L. Webb, and Brent Yonts.


Guests:  Dave Adkisson, President and Bryan Sunderland, Public Affairs Director, Kentucky Chamber of Commerce; Harold Mac Johns, Todd County Attorney and Alan George, Woodford County Attorney, Kentucky County Attorneys Association; Chris Cohron, President, Commonwealth’s Attorneys Association; Ed Monahan, Public Advocate, Department for Public Advocacy; and Robert Lotz, Past President, Kentucky Association of Criminal Defense Lawyers.


LRC Staff:  Norman Lawson, Chief Staff Administrator; Ray DeBolt, Joanna Decker, Carolyn Gaines and Christy May.


The meeting was called to order by Senator Stivers, the roll was called, a quorum was present, and the minutes were approved by a voice vote.  The first speaker was Dave Adkisson, President, Kentucky Chamber of Commerce accompanied by Bryan Sunderland, Director of Public Affairs of the Chamber of Commerce.  Mr. Adkisson reported that the Chamber of Commerce had recently issued a report showing that the state is spending more money on Corrections than it is on education and that better education is one of the Chamber's priorities.  Mr. Adkisson reported that in the past 10 years that the state budget has grown by 33%, the Corrections budget by 44%, spending on state employee health care has grown by 146% while K-12 education has grown only by 36%.  K-12 education was 48.2% in 1986-1988 while it declined to 43.8% in the current fiscal year and that postsecondary education had declined from 16.9% in 1986-1988 to 13.7% in the current fiscal year.


Mr. Adkisson reported that Kentucky's rate of incarceration is the highest in the nation according to a PEW study, that the incarceration rate from 1987 to 2007 the imprisonment rate grew by 25% and that since 2000 the prison population has increased by 50%.  Balanced against this, Mr. Adkisson reported, that violent crime has decreased by 13% and property crime by 14% and that Kentucky ranked 40th in the nation in violent crime in 2006.  Mr. Adkisson suggested the following solutions to the problem:

 1.  Review the Persistent Felony Offender (PFO) statutes to see if they are too broad and eliminate nonviolent offenders from the statute. 

2.  Review the classification of offenses and the use of enhancements to penalties.  3.  Increase the use of community corrections programs.            

4.  Attack drug abuse.  Mr. Adkisson complimented the General Assembly on the lieu of prison.  Mr. Adkisson suggested additional treatment programs for low level drug offenders which he indicated comprise 25% of the prison population. 

5.  Increase the use of privatization of prisons which Mr. Adkisson indicated provide service at less cost than the state.  Mr. Adkisson urged spending the money saved on education programs.  Senator Westwood asked if the drop in crime rates was due to the incarceration of offenders.  Mr. Adkisson responded that they did not know but that placing money in treatment programs, particularly for youth, would save money and reduce crime at the same time.  Senator Neal indicated that the committee has a subcommittee working on these issues.  Senator Stivers complimented the Chamber on their interest in the matter and urged the Chamber to urge their members to talk to prosecutors and others to support change.  Senator Stivers also urged the Chamber to look into the county jail incarceration problem which costs many counties $1 million per year and which is the largest cost in many counties and make recommendations in this area as well.  Representative Riner urged the use of more faith based programs as alternatives to incarceration which Representative Riner indicated costs government nothing and has had excellent program results.


The next speakers were Harold Mac Johns, Todd County Attorney and Alan George, Woodford County Attorney, Representing the County Attorney's Association.  Mr. Mac Johns indicated that county attorneys are intimately involved with county budgets but that they are also prosecutors with a duty to protect the public.  Mr. Mac Johns indicated that he only recommends jail time for "people who have earned it."  Mr. Mac Johns observed that in Todd County a person who commits nonsupport gets "eight bites at the apple" before prison is recommended and that the person has already failed at community corrections, misdemeanor probation, and intensive supervision.  Mr. Mac Johns indicated that two years of intensive, meaningful supervision might cure the problem with counseling, drug testing, and mandatory work but that many persons do not want counseling and that until the person accepts the need for counseling that such programs may not work.  With regard to thefts, Mr. Mac Johns observed that theft is viewed as a nonviolent crime but that where family members steal from elderly family members and similar situations involving theft that there is long term devastation to the family.  In such situations family members frequently refuse to provide bail for the offender, desiring the person to be in jail where they cannot steal further.  Mr. Mac Johns observed that some would want to shock probate such persons but that he believes they need to be in jail.

Mr. Mac Johns indicated that the General Assembly should not dictate who peace officers can arrest as been proposed for certain minor offenses where consideration has been given to mandating the use of citations rather than arrest.  Mr. Mac Johns indicated that he favored retaining arrest for all assault offenses and that there are no hard and fast rules.


The next speaker was Woodford County Attorney Alan George who indicated that the passage of 2009 SB 4 was a good start at a treatment program and that drugs and alcohol accounted for much of the crime problem.  Mr. George observed that the 44% increase in corrections spending was a public safety issue and that the persons who are in prison committed a crime, had a trial, were convicted, and that a judge or a jury imposed the locally approved standard--incarceration.  Mr. George indicated that home incarceration is not the purpose of sentencing to incarceration and indicated that defendants frequently ask if their 4 days of mandatory incarceration for driving under the influence be served at home.  Home incarceration is not punishment according to Mr. George who urged that we err on the side of public safety and that county attorneys are doing "what the public wants us to do."  Representative Bell observed that every judge he appears before representing clients in criminal cases follows the prosecutor's recommendation about sentencing in nearly every case.  Representative Bell indicated that in 1st and 2nd offense cases, cold checks, shoplifting, and similar matters that home incarceration is a no-cost benefit.  Under the law probation is mandated but is not granted because the prosecutors and judge feel that it "undermines the seriousness of the offense".  Mr. George indicated that he agreed that judges frequently follow the prosecutor's recommendations and that prosecutors favor jail, but that in some cases, such as driving under the influence with a blood alcohol concentration of .018 or above that the prosecutor is mandated to seek jail time by statute.  Representative Bell indicated that in criminal cases 9 times out of 10 defense attorneys plead defendants guilty because of the prosecutor's threat to prosecute for persistent felony offender as well as the underlying offense.  Senator Gibson indicated that in his thirty years as a Circuit Clerk he observed that much of the crime in his county had been committed by just a few families and that there were generations of criminals in families.  Senator Gibson observed that the education system is failing in its job to instill good behavior and that if a court uses probation for such continuous offenders that it does not work.  Mr. Mac Johns indicated that early intervention, when the person first commits a crime as a youth, may work.  Mr. George further observed that in juvenile court problems with criminal families are complicated by the legal demands that families not be separated in most cases and that this means that the child is returned to the same criminal environment rather than being removed from it.


Senator Seum observed that we are overcriminalizing things, that in Jefferson County there were 26 judges and now there are 40, there are 15,000 unserved felony warrants, that in Massachusetts the General Assembly criminalized driving while tired and asked where is the money for all of this.  Where is the money for more police, more prosecutors, more defense attorneys, more courts, and more jails, the Senator asked.  In Jefferson County Senator Seum observed that there is a special court, which he believes to be unconstitutional, for inspections, permits, and licensing which handles such "crimes" as grass being too tall.  Senator Seum observed that the metro government hires  43 officers who are tasked with writing 18 tickets per day  and has imposed home incarceration for one year on an 81 year old man who didn't mow his grass.  Following the ice storm, according to Senator Seum, a woman whose gutters were brought down by the storm was threatened with jail by these same officers and the problem was solved only when Senator Seum reinstalled her gutters.


Representative Webb indicated that 2009 SB 4 is a step in the right direction to replace incarceration with alternatives but that the problem is that there is very little money for alternatives and that we need to reprioritize how we spend our dollars and that we need to provide services to rural areas.  Representative Webb observed that in her area it takes 6 weeks to get a DUI test back.  Senator Stivers indicated that in his area of the state misdemeanants were placed on probation and the state told the probation and parole officers not to supervise them and observed that this is a court function and that probation and parole should follow the directions of the court.  Mr. Mac Johns indicated that county attorneys are "Gatekeepers."  Senator Stivers indicated that 69,000 misdemeanor warrants had been issued for nonviolent misdemeanors.  Mr. Mac Johns indicated that he routinely uses summonses rather than arrest warrants for misdemeanors other than assaults but that other county attorneys may not.  Mr. George indicated that Woodford County was one of the test sites for the electronic warrant, E-warrant, system and urged its statewide adoption. 


Senator Schickel observed that many members of the committee are also members of the defense bar and that the reason that nonviolent people are in jail is that the public wants it.  Senator Schickel indicated that burglary should be included as a violent crime and that many offenders get "too many bites at the apple" prior to being sent to prison.  With regard to previous comments that home incarceration is not punishment and that making the person stay at home watching wide screen TV, Senator Schickel observed that persons in jail and prisons get to watch TV, have full court basketball, weight rooms, free health care that the public does not have, free meals, and free lodging. and that it should not cost $80 per day to incarcerate a prisoner.  Senator Schickel further observed that jails and prisons all strive to meet the American Correctional Association's standards and then asked just who these ACA members were, to which the Senator observed that they were architects and humanitarians.  Senator Schickel observed that jail or prison should be a place where you do not want to go back which would aid in the person accepting the need for treatment in lieu of incarceration.  Representative Webb responded that there should be no apologies for modern prisons or their programs.  Senator Schickel then observed that the modern trend in corrections for "direct supervision" was too costly and compromised officer safety.


The next speaker was Warren Commonwealth's Attorney Chris Cohron, President of the Commonwealth's Attorneys Association who indicated that he will shortly assume the position of legislative chairman for the association.  Mr. Cohron indicated that if the committee wanted to revise the entire Penal Code that they should look at the $400,000 study done for the Justice Cabinet several years ago but which went unused.  Mr. Cohron indicated that we should be imprisoning those persons we are scared of and that in his jurisdiction the caseload is the third largest in the state and the prison population from his jurisdiction is 600 to 700 inmates.  Mr. Cohron observed that the state should study the prison population in detail to ascertain who is there, what their current offense is, what offenses they have committed in the past, how many times they were granted probation or alternatives prior to the current sentence and thus validate the need for their current incarceration.  Mr. Cohron indicated that of 79 burglars presently in prison these same persons had over 1,000 prior convictions and in his jurisdiction 20 families were responsible for 50% of the crimes.  Mr. Cohron indicated that a study of penal codes by Northwestern University indicated that the Kentucky code was 11th in clarity and effectiveness in the United States.  Mr. Cohron indicated that the system is bankrupting counties which have county jails and urged statewide adoption of the "rocket docket" system where accused persons, their attorneys, and the prosecutors meet and reach an early plea agreement thus limiting their pretrial incarceration and placing them in prison or in a county jail with the state paying the costs of the incarceration thus saving the counties the costs involved in pretrial incarceration of felons.  Commenting that present eligibility for parole is at 85% service of sentence for violent offenders, 20% for most other felons, and 15% for nonviolent class D felons that the state needs a longer period of incarceration before parole eligibility for aggravated felony offenses.  Mr. Cohron observed that the public wants truth in sentencing and that jurors should be told more about parole eligibility when they are sentencing persons.  Mr. Cohron indicated that with regard to nonsupport cases that he uses the family court first but that these courts need more resources to deal with the problem.  Mr. Cohron indicated that prosecutors are willing to look at which offenses need to be classified as "violent" offenses, that drug paraphernalia cases should all be misdemeanors, but that the persistent felony offender statutes do what they are meant to do in reducing crime.  Senator Clark commented that drug court works as an alternative to incarceration statewide while mental health court and teen courts are working in several jurisdictions as alternatives to incarceration.  Other comments included the success that the Department of Public Advocacy has experienced with its social workers and that in certain areas of the state, including urban areas, that access to programs is hampered by a lack of public transportation.  Senator Stivers asked that all persons and organizations having suggestions for changing the Penal Code and the Controlled Substances Act send the suggestions, with as much detail as possible, to the staff for deliberation by the subcommittee and presentation at future meetings.


The next speaker was Ed Monahan the Public Advocate who was accompanied by David Preston, Director of the department's trial division.  Mr. Monahan indicated that the Department for Public Advocacy has represented 145,000 clients at trial and 2,000 at post trial proceedings at a cost of under $300 per case.  Mr. Monahan indicated that the department is an independent part of the Cabinet for Justice and Public Safety, that there is a need for quality services on the front end of a criminal case, and that alternatives to incarceration are the national trend.  Mr. Monahan indicated that the department's six social workers save the state $3.25 in corrections costs for every dollar invested in the social worker program.  Mr. Monahan identified three basic proposals for reducing prison costs.

 1.  Effective criminal defense litigation which prevents innocent people going to prison. 

2.  Effective alternative sentencing plans.

3.  The Innocence Project which investigates the claims of innocence of persons in prison and defends them if they meet the criteria, thus saving the additional costs of incarcerating an innocent person.

Mr. Monahan cited a 2002 Peter D. Hart Research Associated for the Open Society Institute in which over 70% of respondents favored a policy that would mandate drug treatment and community service rather than prison for persons found guilty of selling small amounts of drugs and that 75% of all adults favored sentencing nonviolent offenders to supervised community service or probation instead of imprisonment including 41% who strongly favored this proposal.  Mr. Monahan indicated that while the majority of people want violent criminals locked up, part of the problem is defining who is a violent criminal.  Mr. Monahan suggested providing more resources to comprehensive care programs to reduce incarceration and elimination of the death penalty.  Mr. Monahan indicated that additional specific recommendations are contained in the material distributed to the committee and that money saved by lessening incarceration be diverted to alternatives to incarceration programs.


The next speaker was Mr. Robert Lotz of the Kentucky Association of Criminal Defense Lawyers who indicated that both public defenders and the private defense bar are interested in lives turned around and that incarceration does not provide this.  Mr. Lotz indicated that enhancements to sentences do not solve turning lives around.  Mr. Lotz indicated that his organization favors enactment of the Prison Industries Enhancement Bill which has been proposed in several sessions of the General Assembly, the enactment of 2009 SB 103 which would require cost of incarceration data to be placed before judges and juries during the sentencing phase of a trial, the provision of 2009 SB 76 limiting the amount of bail for a Class A or B misdemeanor to the amount of the fine, 2009 HB 389 relating to eyewitness identification, the increase in good time proposed in 2009 HB 371, requiring prosecutors to choose between an enhancement or the persistent felony offender statutes in situations where both might apply proposed in 2009 HB 378, and expanding proposals for electronic recording of interviews with minors to include all interviews by law enforcement in criminal cases.  Mr. Lotz further indicated that there has been a change in the personnel hired as probation and parole officers from the social workers previously employed to peace officers or former peace officers who are more interested in catching parole violators and sending them back to prison than the previous social work approach which emphasized the parolee or probationer succeeding while in the program.  Mr. Lotz commented that the use of faith based programs as alternatives succeeded better than mere electronic monitoring of persons on release or home incarceration.  Mr. Lotz indicated that the organization favored expanding the use of drug court, reducing possession of controlled substances to misdemeanors, that time spent on probation should count as jail time, that rehabilitation and redemption should be recognized in the law through expungement of records for nonviolent felonies and automatic restoration of voting rights, and the elimination of the death penalty.  Representative Riner observed that the state should reverse the economic incentive to jail persons, unify the jail system, and provide counties incentives for using alternatives to jail.  Representative Crenshaw cited the situation of a person who was convicted of a nonviolent felony 12 years ago, lost their job recently because of economic conditions, and now cannot get a job because of their felony record.  Senator Clark indicated that he favored automatic expungement of records and that the record of a person successfully completing diversion be expunged in 60 days.  Senator Schickel commented that innocent persons are in jail but that even expunged records come up in record checks thus inhibiting the person's employment, and that his SB 31, a bill to remove the prohibition against faith based community service, passed the Senate in 2009 but died in the House of Representatives.  Ed Monahan commented that new programs such as the mental health court in Kenton County has helped to alleviate the problem where jails and prisons are used in lieu of mental health treatment.


The meeting was adjourned at 12:30 p.m.                               .