Interim Joint Committee on Judiciary


Minutes of the<MeetNo1> 4th Meeting

of the 2011 Interim


<MeetMDY1> September 14, 2011


Call to Order and Roll Call

The<MeetNo2> 4th meeting of the Interim Joint Committee on Judiciary was held on<Day> Wednesday,<MeetMDY2> September 14, 2011, at<MeetTime> 10:00 AM, 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; Senators Perry B. Clark, Carroll Gibson, Jerry P. Rhoads, Dan "Malano" Seum, Katie Kratz Stine, and Robin L. Webb; Representatives Joseph M. Fischer, Kelly Flood, Jeff Hoover, Joni L. Jenkins, Stan Lee, Mary Lou Marzian, Darryl T. Owens, Tom Riner, and Steven Rudy.


Guests: Allyson Taylor, Attorney General’s Office; Lori Davis, Kentucky State University; Wayne Young, Kentucky Association of School Superintendents; Bill Doll, Kentucky Medical Association; Dan Albers, Jefferson County Attorney’s Office; Jan Gould, Kentucky Retail Federation; Meghan Wright, Kentucky Association of CACs; Tom VanDeRostyne, Jefferson County Commonwealth’s Attorney Office; Hasan Davis, Deputy Commissioner, Department of Juvenile Justice; Patrick Yewell, Executive Officer, Family and Juvenile Services, Administrative Office of the Courts; Ed Monahan, Department of Public Advocacy; Lynn Pryor, Christian County Commonwealth Attorney; Jackie Steele, Laurel County Commonwealth Attorney; Ernie Lewis, Kentucky Association of Criminal Defense Attorneys; Scott Norsworthy, Christian County Deputy Sheriff; Jeff Hulker, Department of Corrections; Officer Todd Phillips, Lexington-Fayette Urban County Police Department; and Shannon Stiglitz, Kentucky School Boards Association.


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


Arrest, Prosecution, and Treatment of Juveniles Who Are Ten Years of Age or Under

Patrick Yewell, Executive Officer, Department of Family and Juvenile Services, Administrative Office of the Courts, indicated that, from 2005-2010, 2,705 children age ten and under were charged with a status offense or public offense, and these children were four to five times more likely to continue in the juvenile justice system. During this same period, 277 children were charged with being beyond control, 271 with fourth degree assault with minor injury, 268 with criminal mischief in the third degree, 154 with theft, 137 with terroristic threatening, 130 with third degree assault (school personnel, police, etc.), 127 with criminal trespass third degree, 115 with assault fourth degree with no visible injury, and 108 with harassment.


Mr. Yewell discussed the State Interagency Council for Services to Children with Emotional Disabilities and its IMPACT program, which is studying the underlying issues which are causing the children to be referred to the court system. Multiple studies have shown that children ten years old and younger are best served by social service agencies and not the criminal justice system. Kentucky does not have an age of criminal responsibility for children as some other states do, with ages ranging from six to ten years of age with eleven states using age ten.


Hasan Davis, Deputy Commissioner, Department of Juvenile Justice, reported on the department's contact with children under age ten. In 2009, eight children under age ten were referred to DJJ, one was probated, one was eventually probated on other offenses in 2011, one was committed, and the other five were at judicial discretion only and the department made recommendations only. In 2010, the department had contact with four children under age ten, all those offenses were misdemeanors, and no formal DJJ relationship was ordered. Mr. Davis agreed these children would be better served in the social services system than in the criminal justice system.


Ed Monahan, Public Advocate, Department of Public Advocacy, said his department represented most of the children charged with public offenses and status offenses. These children would be better served in the social services system because the criminal justice system is not set up for children’s issues and would generally lead to the child continuing in the system. He urged the committee to adopt the age of ten as the age of criminal responsibility in Kentucky, saying many studies indicate that actual responsibility may occur several years later, according to recent psychological studies.


Representative Owens was very concerned the Jefferson County statistics showed 60 percent of the children referred to the criminal justice system were African-American, even though these children represent only 10 percent of the population. In response to a question from Representative Owens, Mr. Davis said a lack of services, family problems, unemployed parents, and a greater risk of failure contributed to the situation. Representative Owens said 65 percent of the arrests were African-American children, and the schools seem to be unable to handle the problem. Representative Tilley said the state has been placing children in a system knowing they will fail. At the request of Senator Gibson, Mr. Yewell agreed to provide the committee with a list of members on the Local Committees of the SIAC.


Discussion continued on the failure of social services programs due to lack of resources and personnel, as well as the failure of the criminal justice system to meet the needs of juvenile offenders. Mr. Yewell said the Court Designated Worker Program is ready to expand if given the resources. Senator Gibson said the social services programs in his county do not follow court orders relating to children. In response to a question from Representative Fischer about a successful diversion, Mr. Yewell said Court Designated Workers used the prevention, education, accountability, and treatment (PEAT) program to provide services and measure success, and a validated assessment tool is used to provide services to children. Some communities refer all these children to the court system.


In response to a request from Representative Lee for a definition of “out of control,” Mr. Yewell said it could be children who would not obey their parents or comply with school rules. Representative Tilley said terroristic threatening sometimes involved a threat to a teacher. Mr. Davis cited a situation where a student threatened to blow up a school ten times. Shannon Stiglitz, Kentucky School Boards Association, said many of the charges resulted from the General Assembly's passage of bullying legislation. Representative Flood disagreed and said many of the problems come from children who are abused at home and who are acting out at school, children with mental health problems, children with learning disabilities, children with Tourettes Syndrome, and families in crisis. Senator Webb suggested many problems involve a learning disability, substance abuse, and ADHD, and that a proper evaluation of the child must come first. Mr. Monahan agreed and indicated the social services approach is better than sending these children to the criminal justice system.


Juvenile Law Changes

Representative Flood summarized her 2011 House Bill 123 and said she plans to reintroduce the bill in the 2012 Regular Session. The bill follows the PEW Foundation model of rehabilitation rather than punishment and would provide more services for children to make them more productive, places limits on the duration of court orders, and protects judicial discretion. She said that placing children in jail does not work.


Criminal Gang Legislation

Lynn Pryor, Christian County Commonwealth's Attorney, accompanied by Chris Cohron, Warren County Commonwealth's Attorney, and Scott Norsworthy, Christian County Deputy Sheriff, testified about the prevalence of gang activity in Kentucky, citing instances in her community where gang activity and gang evidence were prevalent in the school system and involved young children being recruited by older gang members. Ms. Pryor said the problem is growing statewide, and gangs are increasingly responsible for drug trafficking, violence, home invasions, and intimidation and murders of witnesses. Jeff Hulker, Department of Corrections, presented a chart showing the prevalence of gang members in the correctional facilities. All but two counties have gang member representation in Kentucky prisons, and 10 percent of inmates have been identified as gang members. Ms. Pryor said current Kentucky gang laws are insufficient and difficult to use, and courts in her area have prohibited assertions about gang membership and activity as prejudicial to the defendant. Ms. Pryor indicated 32 states have gang legislation. Tennessee’s gang legislation includes sentencing enhancements for gang members convicted of a crime in furtherance of gang activity, and Tennessee gangs are coming to Kentucky where the statutes are more lenient.


Ms. Pryor indicated the Commonwealth's Attorneys are seeking legislation which would include a gang member validation process, a Kentucky State Police maintained list of gangs, gang members, and gang activity, enhanced gang related crime penalties, prohibiting gang members from receiving credit for time served in jail prior to trial, requiring gang members to serve 50 percent of their sentences prior to parole eligibility, forfeiture of gang assets, and allowing evidence about gang membership. Mr. Cohron said the Commonwealth's Attorneys Association supports the proposals, that they would help bring truth in sentencing to the criminal justice system. Officer Todd Phillips, Lexington-Fayette Urban County Police Department, said gang recruiters teach children to be professional criminals. Representative Lee asked if there had been an increase in Hispanic gang membership and gang activity in Lexington. Officer Phillips said gang activity is spiking in Lexington and involves all races, nationalities, and ethnic groups.


Senator Rhoads said while we need to discourage and eradicate gang activity, we do not need to discontinue the positive trend set by 2011 HB 463. Several members said previous gang legislation failed over fears it was overly broad and there should be solid evidence and prosecutorial accountability when charges of gang membership are brought. Many motorcycle clubs had expressed concerns about previous legislation. Senator Jensen asked what time period the Department of Corrections data represented and what criteria was used to indicate gang membership. Mr. Hulker said the data was based on the current prison population and could be based on a gang tattoo. Further discussion determined the county shown was the county of conviction and not necessarily the county of residence, the conviction shown was not necessarily in support of gang activity, and the department had no statistics indicating the conviction was related to gang activity. Several members said they had problems with the gang membership list including how one got on the list, validation, how one gets off the list, how errors would be corrected, and whether the validation process would contain due process protections for persons placed on the list.


The meeting adjourned at 12:10 p.m.