Kentucky public defenders represent clients in more than 150,000 cases each year. From that depth and breadth of experience, the Department of Public Advocacy submits the proposals below to accomplish positive change in the criminal justice system while maintaining public safety. These proposals strive to restore proportionality and reasonableness to the overall structure of the penal code, holding all offenders accountable, but reserving the most severe penalties for those whose conduct reflects the most severe breaches of public safety and values. They will safely reduce the correctional population. Reducing incarceration costs will allow resources to be reallocated to reducing recidivism through community-based, individual treatment.
The 1974 Kentucky Penal Code was a model of principled, coordinated provisions that were rational and internally consistent. Since then, the Code has substantially been degraded by repeated yearly amendments that have undermined its consistency. There should be an integrated revision of the Kentucky Penal Code, taking advantage of the draft done 13 years ago.
In 2003 the Kentucky Criminal Justice Council produced a proposed revision of the Penal Code after extensive work and under the guidance of Paul Robinson. It was never enacted but remains the most thoroughly considered proposed revision currently available. The moral credibility of the Kentucky Penal Code has been significantly corrupted as a result of its irrationalities and internal inconsistencies that have been drafted onto it since 1974. See, “The Rise and Fall and Resurrection of American Criminal Codes,” 53 University of Louisville Law Review 173 (2015).
Penal Code revision is matter of the highest order because as Paul Robinson observes, “…criminal law that has earned a reputation with the community as a reliable moral authority gains the power to move people to internalize the law’s norms. And that can be a more powerful—and a less expensive—mechanism of gaining compliance than any threat of criminal sanction. But irrationalities and internal inconsistencies in a criminal code can quickly undermine the criminal law’s moral credibility, and thereby undermine its power to gain compliance and deference through social influence.” Id. 177.
Beyond this primary recommendation, particular recommendations follow.
1. Reform Kentucky’s Mandatory Minimum Laws
Persistent Felony Offender law – Kentucky’s repeat offender law is among the broadest and most severe in the country, contributing more than anything else to the enormous growth in the prison population over the past 30 years. Mandatory minimums in the form of PFO laws in Kentucky “essentially guarantee a stream of injustices, as some offenders in some cases really will have the kind of important mitigations that demand a sentence in the lower end of the range forbidden by the mandatory minimum. This guarantee of a string of mandatory minimum injustices can only serve in the long run to undermine the criminal justice system’s reputation for being just, for being a reliable assessment of the punishment that each offender genuinely deserves.” Paul Robinson, “The Rise and Fall and Resurrection of American Criminal Codes,” 53 University of Louisville Law Review 173, 180 (2015). Below are suggested changes that would moderate the disproportionate effect the PFO law has on criminal sentences, but maintain the ability for career criminals to be imprisoned for long periods.
- Eliminate PFO 2nd Degree, which establishes a Mandatory Minimum sentence of five years for convicted felons, and reinstate a single Persistent Felony Offender law, as was originally enacted.
- Amend the Persistent Felony Offender law in any of the following ways:
- Require at least one prior period of felony incarceration;
- Limit the triggering (prior) convictions and the current offenses that make an offender eligible for PFO (possible limitations include violent offenses, offenses involving injuries, or Class C felonies and higher);
- Change the enhancement from raising the mandatory minimum sentence a full grade to raising the minimum sentence within the existing range (i.e. instead of increasing a Class D felony from 1–5 years to 5-10 years, the new range would be 3-5 years);
- Give the Parole Board discretion to consider parole by eliminating the 10-year parole eligibility for Class C felonies enhanced by first-degree PFO; and
- Make the application of PFO discretionary rather than mandatory so that a prosecutor could request the enhancement, but a judge or sentencing jury could decide that it is not appropriate in a given case.
- Eliminate the double-enhancement that results when a PFO-enhanced sentence is ordered to run consecutive to a revoked sentence for a prior felony. The prosecution could elect to proceed with a non-enhanced consecutive sentence or an enhanced concurrent sentence. Either option would sufficiently punish the two-time offender with additional prison time.
- The 2008 Criminal Justice Council recommended that PFO 2d be eliminated and that the 10 year restriction of PFO parole eligibility be removed.
Violent Offender Law – KRS 439.3401 requires all offenders convicted under 43 different statutes to serve a Mandatory Minimum of 85% of their sentence before any possibility of release. This statute constitutes an overbroad limitation on the discretion of others within the system, including the court, the jury, and the Parole Board. The changes below would target this important public safety tool at the “worst of the worst” as intended, but allow discretion in appropriate cases for release earlier than the current mandatory minimum service.
- Return parole eligibility to 50% of the sentence or 12 years, as it was prior to 1998; and
- Limit the reach of the law to the offenses included in the original law (Capital offenses, Class A felonies, or Class B felonies involving the death of the victim, or rape in the first degree, or sodomy in the first degree of the victim or serious physical injury to a victim)
2. Recalibrate sentencing ranges – Kentucky’s sentencing structure of consecutive ranges (1-5, 5-10, 10-20, 20 – Life) is unnecessary. The ranges should allow for the reality that not every Class C felony is worse than all Class D felonies. There should be some overlap to allow for lesser penalties for higher classification offenses in appropriate cases. For example, the ranges could be 1 – 5, 3 – 10, 8 – 20, and 15 to Life. This reform could be done on its own or it could work in tandem with reforms to PFO placing the sentencing range for a charge enhanced by PFO in the intersecting range of the two penalties. In the case of the example above, a PFO-enhanced Class C felony could be sentenced to 8 to 10 years, which is the intersection of the Class C and Class B felony ranges.
3. Establish graduated caps on non-life sentences – Under current law, a person could be sentenced to a term of years up to 50 years for a Class A or capital offense or up to 70 years with multiple sentences. This has resulted in inmates being sentenced to decades in prison for offenses that were ineligible for, or deemed undeserving of, a life sentence. Someone sentenced to less than life should be eligible to serve out their sentence during their lifetime. Possible caps would be:
- Limit multiple Class B felonies or Class B felonies with PFO enhancement to 30 years – Multiple or PFO-enhanced Class C and D felonies are currently limited to 20 years, but Class B felonies have the same cap as Class A felonies and capital offenses (70 years). Class B felonies should be limited to avoid excessive consecutive and enhanced sentences.
- Limit multiple felonies of any level to 50 years (reduced from 70) – If a person commits an offense at 20 and is not given a life sentence, that person should be able to serve out the sentence at least by 70.
4. Raise the felony theft threshold to at least $1,000 (KRS 514.030)– At least 30 states set the threshold for felony theft at $1,000 or higher. Kentucky is one of only 15 states with a misdemeanor limit of $500 or lower. The determination of the felony threshold should reflect the amount at which a theft is of something that is beyond normal consumer or lifestyle items. With the current limit, the theft of a cell phone or an iPad would usually be charged as a felony since these have list prices of over $500. To elevate a crime to a felony should require more than these types of theft offenses.
5. Create a classification for Gross Misdemeanors - The status of “convicted felon” remains one the biggest impediments to successful reentry into society. DPA supports the concept of a classification between a Class A misdemeanor and a Class D felony and believe that classification should fall on the side of a misdemeanor rather than felony. A gross misdemeanor classification would be a hybrid of the current felony and misdemeanor categories:
Sentencing Range of six months to two years;
- Automatic or highly presumptive probation with a clear and convincing standard for any denials of probation; and
- Supervised by or incarcerated at the expense of the Department of Corrections, not counties.
This new category of offenses is necessary to meld the need for sanctions greater than typical misdemeanors but less than the life-changing impairments of felony convictions. Offenses that could fall into this category include Nonsupport between $1,000 and $10,000, Theft between $500 and $2,500, Possession of a Forged Instrument under $500, and Welfare Fraud under $5,000.
6. Reduce penalty for non-completed Manufacturing Methamphetamine - Possession of some of the chemicals or equipment necessary to manufacture meth should not be punished at the same level as the actual successful manufacture of meth. Current law allows for a person arrested leaving a store with Sudafed and drain cleaner to be prosecuted for a Class B felony, if an intent to manufacture methamphetamine is proven. If the actual manufacturing of meth warrants a Class B felony, then the attempted or intended manufacture should be no higher than a Class C felony.
Since the decision to make Manufacturing Methamphetamine a Class B felony, the General Assembly has passed Controlled Substance Endangerment to a Child (KRS 218A.1441 et. seq. ranging from Class A to Class D felonies) to cover situations where the hazards of the manufacturing process lead to specific danger to others. This crime can be prosecuted in addition to Manufacturing Methamphetamine. Consequently, the general crime of Manufacturing Methamphetamine could be reduced to a Class C felony and specific hazardous commissions of the offense could be punished as harshly or even more harshly as the current B felony charge. Individual and small-scale occurrences would not face the mandatory minimum sentence of 10 years under the B felony.
Also, manufacturing methamphetamine, if any part of it is to remain a Class B felony, should not be enhanceable by a prior offense or PFO. A Class B felony has a 10-year range within which aggravating factors like prior convictions can be considered. A non-violent drug offense should never lead to the 20-year minimum sentence of a Class A felony. Moreover, Manufacturing Meth, 2nd offense, is currently a violent offense under KRS 439.3401, meaning a convicted person would serve no less than 17 calendar years before release. That penalty is disproportionately high for the offense.
7. Amend KRS 500.050(1) to adopt a statute of limitations on Class C and Class D felonies – Investigation, prosecution, and defense of old cases is costly and often unreliable because of the unavailability or lack of memory of witnesses. With limited exceptions, a statute of limitations should be adopted to establish finality in regards to alleged minor felony conduct, just as there is currently in misdemeanor cases (1 year). This recommendation was adopted unanimously by the Criminal Justice Council in 2008. See: http://justice.ky.gov/Documents/Statistical%20Analysis/2008%20CJC%20Report.pdf
8. Limit Assault, 3rd Degree (KRS 508.025) – The list of victims that would bring an otherwise misdemeanor assault into felony third-degree assault should be limited to only on-duty peace officers assaulted in the course of performing their duties. Assaults against others should be prosecuted under the general assault statutes based upon the severity of injuries and the use of weapons. Consideration of a victim’s important role in society could be made in imposing an appropriate sentence within the applicable range.
9. Enact specific laws for sexting – The unfortunate act of teenagers sending ill-advised pictures of themselves to other teenagers is punished inconsistently throughout the Commonwealth. The same act might be uncharged in one county, charged as a misdemeanor in another county, and charged as a felony sex crime in another county. Kentucky law should be amended to bring consistency to the court system’s response to this widespread activity.
10. Eliminate inconsistencies in offenses involving age-based non-forcible sexual activity
Unlawful Transaction with a Minor vs. Rape, Sodomy, and Sexual Abuse – An adult who has non-forcible sexual contact with a child under 16 (but at least 12) would be guilty under KRS Chapter 510 of a misdemeanor or a Class C or D felony, depending on the specific actions and ages involved. However, that same adult could also be prosecuted under KRS 530.064 for a Class B felony under the broad Unlawful Transaction with a Minor statute. This results in inconsistencies between charging practices among counties and gives the prosecution leverage to use to pressure defendants into taking plea deals to the lesser offenses to avoid the higher Class B felony sentences. The carefully crafted scheme in KRS Chapter 510 more accurately reflects the seriousness of each offense. The Unlawful Transaction statute should either be repealed or statutorily limited to a narrow range of cases that does not include ordinary age-based non-forcible sexual contact cases.
Third-Degree Rape or Sodomy and Use of a Minor in a Sexual Performance - Minors aged 16 or 17 are treated differently under these statutes. 16 is the age of consent for sexual activity under the Chapter 510 sexual offenses, but 18 is the age of consent for sexual performance statute. This means that an adult who has sex with a 16-year-old does not violate any criminal law, but if that same adult asks that same 16-year-old to pose beforehand, he faces 10 years in prison as a sex offender. KRS 531.310(2)(a) should be amended to permit a consensual “sexual performance” in a private setting by a person 16 years old or older.
11. Eliminate second-offense enhancement for Unauthorized Use of a Vehicle (KRS 514.100) – The subsequent offense enhancement should be eliminated. With a 12-month sentencing range, prior offenses can be accounted for without making misdemeanor conduct a felony.
12. Amend Fleeing of Evading Police in the First Degree (KRS 520.095(1)(b)(2)) to eliminate the reference to property damage – The current Fleeing 1st statute establishes conditions that make fleeing police a felony offense rather than a misdemeanor. Subsection (1)(b)(2) includes causes or creating a risk of “serious physical injury or death to any person or property.” Injury or death to property is undefined. This enhancing provision to be limited to risks and causes of persons, not property. This recommendation was unanimously adopted by the Criminal Justice Council in 2008. See: http://justice.ky.gov/Documents/Statistical%20Analysis/2008%20CJC%20Report.pdf
13. Limit the currently overbroad gun enhancement (KRS 218A.992) – Currently, almost all offenses in Chapter 218A are enhanced one degree of punishment if the offender possessed a gun at the time of the offense. This results in numerous misdemeanors becoming felonies and minor felonies being punished as more serious felonies. While guns are a serious matter, a whole-grade enhancement regardless of circumstance and offense makes some punishments disproportionate. A better approach would be to limit the enhancement to trafficking offenses and to apply the enhancement within the range rather than elevating the offense to the next level. For instance, the same enhancement statute could be amended to say that an offender who possessed a gun at the time of the offense shall be sentenced to no less than a term of years at the midpoint of the sentencing range (i.e. 2.5 years for Class D, 7.5 years for Class C, 15 years for Class B).
14. Remove inequitable subsequent offense enhancements in drug cases – Currently, a “second or subsequent offense” is defined in KRS 218A.010 to be any offense leading to conviction after any prior conviction under KRS 218A, even if it is for a different (and less serious) charge and far removed in time. Thus, a prior misdemeanor trafficking in marijuana conviction can be used to enhance a felony first-degree trafficking charge to a subsequent offense. The enhancement should be limited either to the same prior offense or at least to prior felony KRS Chapter 218A offenses. Also, the enhancement should have a period of time like other enhancements and not be a lifetime enhancement. This is especially important since the lifetime 218A enhancement arguably makes a person with a misdemeanor trafficking conviction ineligible for expungement.
15. Reclassify Arson First Degree (KRS 513.020) and Arson Second Degree (KRS 513.030) – Arson is a serious crime, but should not be grouped with the most serious offenses in the state. The offenses were categorized as Class B and C felonies in the original 1974 Penal Code, but have since been elevated to Class A and B felonies. This elevation should be reversed and Arson First and Second should be reclassified as Class B and C felonies. If a homicide or assault occurs as a result of an arson, those offenses can be prosecuted with consecutive sentences.
16. Narrow elements of Arson (KRS 513.020, 513.030, 513.040) – The current arson statutes are overbroad and should be clarified to eliminate the possibility that minor criminal conduct will be punished with severe penalties, up to and including A felonies. First, the current laws only require that a person “start a fire” or “cause an explosion” without any element relating to the extent of the fire or damage done. This means that very minor fires which carry no realistic possibility of destroying a structure or harming individuals could be punished with a sentence up to life in prison. This should be addressed by adding an element to Arson First Degree and Arson Second Degree that the building in question suffered “substantial damage” (perhaps defined as “causing a loss of $25,000 in damage or 50% of the building’s fair market value”). Fires causing less damage and not meeting other elements of first or second degree arson (injury, insurance fraud, etc.) could be prosecuted as Arson Third Degree, a Class D felony.
The second element to be clarified is the definition of “building” in KRS 513.010, which includes automobiles, trucks, and watercraft. Class A and B felony Arson should be reserved for buildings in the narrow sense of the word and should not include vehicles.
17. Reduce to misdemeanor Theft of a License Plate (KRS 186.990(6)) – Theft of a license plate or renewal decal should be a misdemeanor, not a Class D felony.
18. Narrow Criminal Syndicate law (KRS 506.120) – Kentucky’s “organized crime” statute is overbroad and often misused to give minor players in an alleged organization significantly more prison time than the underlying conduct would warrant under other statutes. For established criminal organizations, federal law exists to prosecute the members of the organization. If Kentucky is to have a Criminal Syndicate statute at all, it should be narrowly tailored to target the leadership or members who actively facilitate the existence of the organization.
19. Increase felony threshold for welfare fraud (KRS Chapter 194A) – The threshold for a felony in Welfare Fraud cases is currently $100. Prosecutions under the welfare fraud statute fall almost exclusively on the poor and usually involve whether a limited source of income was unreported on an application for benefits. While public funds should be closely guarded, criminal prosecution should be reserved for extreme cases, particularly when a potential felony is to be charged. The threshold should be raised significantly, perhaps to $5000.
20. Remove Flagrant Nonsupport and Nonsupport from the criminal code – Rather than continuing to spend thousands and tens of thousands of public dollars to punish deadbeat dads because we are mad at their refusal to support their children, complete jurisdiction should be turned over to Family Courts (or District/Circuit in their civil capacity where no Family Court exists). Family Courts already enforce sanctions for nonpayment through contempt authority and that would continue and could be expanded. If criminal penalties are to remain to address extreme cases, the threshold for Flagrant Nonsupport should be $10,000 or higher in cases where the defendant has a demonstrable ability to pay.
21. Limit trafficking to cases where some consideration is present - Mere transfer without receiving some form of payment should be punished as possession, not trafficking.
22. Reform the sex offender registration system to focus resources, public notice, and restrictions on predatory offenders.
- Distinguish between high-risk predators and low-risk offenders. Registration requirements should be reduced, eliminated, or made discretionary for low-risk offenders who committed non-predatory crimes.
- There should be an application process to be removed from the registry after a period of time, based on treatment and compliance.
- Eliminate residency requirements or at least provide homestead exceptions – No one should be forced to move due the registration requirements unless it can be shown that his/her residence has a nexus to sexual predatory behavior. This exception would specifically include offenders who already live in a residence at the time of a change in law or if a facility or location is opened in an area where the offender is already living in compliance with registry requirements.
- Change registration requirements to only require offenders who have not completed treatment, or who are currently evaluated as a moderate to high risk to reoffend, to register with authorities.
- Publish the names of only high risk offenders to the community. Require moderate risk offenders to register, but keep their information off of the published list. If the public is to be informed, it should be about somebody who is truly a risk.
- Explore other options to help successfully manage high and moderate risk sex offenders. Most can be treated in the community and successfully managed with appropriate restrictions. Invest in reentry services for sex offenders.
- Risk assessments should be integrated into every level of sex offender management, but should focus principally on dynamic factors. Nobody should be viewed as permanently “high risk” based on the offense alone.
23. Require best practices in eyewitness identification - Innocence Projects, both in Kentucky and around the country, have demonstrated that erroneous eyewitness identification is the most common factor in wrongful convictions. Law enforcement agencies in Kentucky should adopt uniform evidence-based practices relating to eyewitness identifications.
24. Remove permanent employment restrictions based solely on felon status - Currently, convicted felons risk losing or being denied a license in many fields including chiropractic care, barbers and hair stylists, emergency medical technician, paramedic, dispatcher, motorcycle safety instructor, and private investigator, and cannot work in any establishment with an alcoholic beverage license for two years after conviction. While expungement will help some felons after a period of time, all broad permanent disqualifications of all felons should be removed.
25. Create an intensive case management system for offenders with mental illness - For persons with mental illness who have committed a crime, an intensive case management system should be created in place of incarceration as outlined by Joel A. Dvoskin Ph.D. and Henry J. Steadman Ph.D., “Using Intensive Case Management to Reduce Violence by Mentally Ill Persons in the Community,” Hospital and Community Psychiatry Vol. 45, No. 7, p. 679 (July 1994).
26. Restrict or eliminate the death penalty – Kentucky spends millions of dollars each year to investigate, prosecute, defend, adjudicate, and appeal/defend convictions in death penalty cases. Eliminating or significantly reducing the scope of the death penalty would allow for vital resources to be redirected with no reduction in public safety as offenders could still face aggravated penalties, such as life without parole. Short of eliminating the death penalty, the following recommendations would make it more effective and efficient:
- a. Reduce the number of aggravating circumstances;
- Repeal vague aggravators, e.g., “the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions;” KRS 532.025(2)(a)(1);
- Prohibit the sentencing of severely mentally ill to death. This could be done by the creation of a gate keeper statute that functions along the lines of KRS 532.130 et seq. Counsel should be allowed to produce evidence for the court of mental illness pretrial and mentally ill clients would be barred from execution;
- Expand statutory mitigating circumstances that jurors are required to consider, e.g., the defendant has a significant history of being sexually, emotionally or physically abused; residual doubt; or the defendant is a victim of trauma or suffers from brain injury or significant cognitive impairment;
- Prohibit a death sentence based on unreliable evidence by enacting a statute similar to one enacted in Maryland in 2009, which for a defendant to be sentenced to death required biological evidence that links the defendant to the act of murder, a videotaped and voluntary interrogation and confession of the defendant to the murder, or a video recording that conclusively links the defendant to the murder;
- Modify KRS 532.130 et seq. to allow the court to exclude death for the borderline retarded in the wake of Atkins v. Virginia, 536 U.S. 304 (2002); Hall v. Florida, 134 S. Ct. 1986 (2014); White v. Commonwealth, ____S.W.3d ___ (KY May 5, 2016). Courts should have the discretion to weigh the subjective individual characteristics of a defendant and weigh them along with the objective characteristic of IQ to determine whether someone is excluded from a possible death sentence;
- Provide a reasonable process pretrial to prevent cases that technically qualify for capital prosecution but will never result in a death sentence to have death eliminated as a possible sentence. Kentucky has a process that allows prosecutors to notice an intent to seek a death sentence where the likelihood of a sentence of death is very low. This wastes limited criminal justice time, money, resources and prevents other cases from being more timely adjudicated. The trial court needs the authority to exercise neutral review and oversight on the capital process. This will reduce wasteful capital prosecutions and efficiently allow the court to limit death as a penalty pretrial when it is not appropriate;
- Require ongoing training and competency on death penalty issues for law enforcement, public defenders, prosecutors, corrections officers, and judges;
- Require the independence and certified proficiency of the state crime lab;
- Create a statewide database for reliable ongoing information relating to capital cases;
- Provide funding for the ”full cost of high quality legal representation” to the Department of Public Advocacy to ensure compliance with the national standards standards for death penalty cases; and
- Directs that interviews of suspects be recorded so courts and juries receive accurate and reliable information about a defendant’s statement.
Many of the recommendations above were made by the American Bar Association’s Kentucky Assessment Team evaluating the death penalty in Kentucky. Since their exhaustive review and detailed recommendations issued in 2011, none of the Team’s recommendations have been adopted.
27. Make “escapes” from a misdemeanor home incarceration sentence a misdemeanor – In Lawton v. Commonwealth, 354 S.W.3d 565 (KY 2011) the Kentucky Supreme Court ruled that a person’s home was a “detention facility” for purposes of felony escape under KRS 520.030. In doing so, the Court upheld the felony and PFO conviction of Jeremy Lawton, who had been serving a 12-month misdemeanor sentence in Fayette County’s Home Incarceration Program when he walked away from his home and was subsequently charged with escape. Instead of serving 12 months in home incarceration, Mr. Lawton was given 6 years to serve with the Department of Corrections. While Mr. Lawton should have been held accountable for his actions, the availability of enhanced felony sentences for walking away from misdemeanor home incarceration should be addressed. It is foreseeable that a fair number of convicted offenders will make the unfortunate choice to violate terms of home incarceration. To address their conduct and retain home incarceration as a cost-saving mechanism, the law should be changed to allow for misdemeanor escape to be the penalty for walking away from one’s own home. That subsequent prosecution, paired with revocation of home incarceration, will adequately sanction the wrongdoing without unreasonably increasing correctional costs.
28. Amend KRS 635.020, KRS 640.010, and related statutes to eliminate mandatory transfers of juveniles to circuit court – Studies consistently show that the threat of adult prosecution is not a deterrent to juvenile crime, and that overuse of adult prosecution actually increases recidivism and reduces public safety. Nevertheless, Kentucky law continues to provide that a child who is older than 13 who uses even an inoperable firearm during the commission of the offense is subject to mandatory adult prosecution. In order to address that, KRS 635.020(4) and KRS 635.025 should be repealed, and KRS 640.010 should be amended to add “use of a firearm” to the list of available factors favoring transfer.
29. Amend KRS 610.010(1) to establish a minimum age of delinquency – Under common law, a defense of “infancy” existed, based on the premise that some children are too young to be held criminally responsible for their behavior. Kentucky does not currently recognize such a defense. As a result, very young children are sometimes brought into court to face public offense prosecutions. A minimum age of at least 11 should be established for a child to be charged with a public offense.
30. Implement sentencing and institutional structures that recognize the immaturity and potential of young adult offenders – Research shows the human brain is not fully developed until around the age of 25. Not unrelated, data shows that the likelihood of criminal behavior peaks between the ages of 18 and 24. These two conclusions should open the door to an evidence-based response in the criminal justice system, recognizing age as a mitigating factor and capitalizing on the potential for meaningful reformation of the still-developing offender. We endorse the recommendations in Rebecca Diloreto’s article, “Shared Responsibility: The Young Adult Offender,” 2014, Northern Law Review, 41:2, pp.253-72.
31. Reduce some misdemeanors to prepayable violations - The reduction of some minor misdemeanors to violations would save state money on many levels:
- Less Court Proceedings (particularly for violations that could be designated prepayable);
- No appointment of state-provided counsel;
- No arrest or jail expenses;
- No conditional discharge or supervision costs;
- Increased court revenue through prepaid fines and costs; and
- Reduction of prosecution and law enforcement resources required as cases are resolved through prepayment.
Defendants would still be charged and, if guilty, be held accountable for their actions, yet still maintain their trial rights if wrongly accused.
The American Bar Association has adopted a resolution in support of the reduction of appropriate misdemeanors to allow for civil fines instead of criminal penalties. “The decriminalization of minor, nonviolent misdemeanors will allow police, prosecutors, and defense attorneys to focus on more serious cases, while also providing states with a stream of income derived from civil fines.” Decriminalization of Minor Offenses, ABA State Policy Implementation Project (2010).
Under Kentucky’s system, this could be accomplished by reducing Class A or B misdemeanors to violations. Possible offenses for reduction include: Possession of Marijuana, Controlled Substance Not in Proper Container, Possession of Drug Paraphernalia, Unlawful Access in the Third and Fourth Degree, Criminal Trespass in the Second and Third Degree, Criminal Possession of a Noxious Substance, Criminal Littering, Unlawful Assembly, Harassing Communications, Disorderly Conduct in the Second Degree, Public Intoxication, Disrupting Meetings in the Second Degree, and Unlawful Transaction with a Minor in the Second Degree (Truancy).
32. Implement a clear and convincing evidence standard for pretrial detention and denial of bail credit – HB 463 had a clear legislative intent of increasing pretrial release of low and moderate risk defendants. In many places, this intent has been thwarted by judges who routinely detain low and moderate risk defendants, making bare findings that the exceptions in the bail statute (risk to public, risk of flight) are present. When these decisions are challenged on appeal, the standard for review is whether the court’s decision was an abuse of discretion, a standard that requires appellate courts to uphold very different practices across the state because each court individually applies its own discretion. A clear and convincing evidence standard would lead to more uniformity across the state because courts would have to have clear evidence on the record that is convincing in support of a decision to detain a low risk defendant. In the absence of such evidence, the legislative intent of HB 463 would have to be followed.
33. Require a court considering revocation to consider graduated sanctions and to have clear and convincing evidence for revocation – While the Department of Corrections is required to have a system of graduated sanctions in place, there is no existing requirement that a trial court recognize or endorse that structure. A court that does not agree with graduated sanctions could revoke at the first opportunity despite the recommendation of a lesser sanction by a probation officer. Revocations should only occur after the graduated sanctions system has been utilized and only when the evidence in support of a probation violation is clear and convincing.
34. Create method for inmates to earn parole – Create reasonable criteria that, if met at the time an inmate is scheduled to be considered for parole, would result in release of the inmate on parole without consideration by the Parole Board. Multiple avenues for Earned Parole could be established, but the criteria could include:
- • The risk level of the inmate, based on a validated risk assessment;
- The offense for which the inmate is serving time;
- The institutional behavior of the inmate, including the number and nature of institutional infractions;
- The age of the inmate and the amount of time served prior to the parole consideration;
- The completion of institutional programs of which the inmate has been given a reasonable opportunity to complete;
- The percentage of overall sentence served; orPrior parole revocations.
Examples of when Earned Parole could be authorized:
- A low-risk inmate serving a sentence for a non-violent Class C or D felony who has no violent institutional infractions;
- An inmate turns 60 years old after serving 5 years or 50% of his sentence, whichever is longer; or
- A low or moderate risk inmate serving time for a non-violent offense reaches 50% of his sentence and has never been granted parole.
35. Authorize discretionary parole consideration based on age or medical condition – In addition to (or instead of) creating Earned Parole for limited circumstances, special circumstances could identified that would result in special parole hearings and authority to grant parole when it otherwise might not be authorized. Two examples would be:
- Age-Based Review – In recognition of the evidence that the likelihood that a person will commit a crime drops sharply after the age of 40, every inmate who turns 50 would have a parole hearing at which the Parole Board could review the inmate’s institutional record, time served, medical condition, risk level, and other factors and grant parole in its discretion if doing so would be in the public interest.
- Expanded Medical Parole – Medical parole is currently limited to inmates with terminal conditions who are independently determined to have less than a year to live. This could be expanded to include substantial or chronic conditions that impose significant limitations on mobility or activity and that can be more effectively and efficiently treated outside a correctional setting. This was proposed in 2012 as HB 528 (and had bipartisan support with 25 cosponsors).
36. Eliminate Parole Upon Completion – The Parole Board currently includes in its parole rates cases where an inmate is technically granted parole, but the start of parole is delayed weeks, months, or even years until an institutional program is completed. Eliminating this practice would provide more transparency and accuracy in the parole rates, but also reduce the prison population by not delaying release for inmates deemed suitable for parole. The elimination could be accomplished in two ways:
- Create a pre-parole review twelve to eighteen months in advance of parole eligibility from which the Parole Board can advise an inmate of any programs that must be completed prior to parole; or
- Require that any required programs for which an inmate eligible for parole has not been provided a reasonable opportunity to complete prior to the parole hearing must be completed as a condition of parole after release.
37. Require transcripts of all criminal trials ending in a felony conviction - Kentucky remains the only state which relies on video recordings of the proceedings as the official and usually only “court record.” While this may be simpler and cheaper for trial courts, it adds considerably to the time and cost of review in all subsequent levels of review. For this reason, even after two decades of Kentucky video records, the Sixth Circuit still does not consider a video of a state court proceeding to be adequate for their review. See 6 Cir. R. 30(f)(3). Beyond the inefficiency, video records are dependent upon current, but ever-changing, technology. Consider that the official records for thousands of Kentucky cases in the 1990’s and 2000’s remain today on VHS tapes stored in boxes in clerk’s offices. No other record of the proceedings exists. Kentucky law should require a transcript in every case that results in a felony conviction after trial. This transcript should be viewed as the official court record, and should be created in addition to, rather than in lieu of, video recordings.
38. Create a unified correctional system to ensure coordinated maximum efficiency statewide of resources, and the highest return on investment.