SB120

After seven months of work by Governor Matt Bevin's Criminal Justice Policy Assessment Council, or "CJPAC," SB120 was filed to make changes to the criminal justice system to achieve two goals:

• Improve Public Safety
• Enhance the Administration of Criminal Justice

Below I've included the committee substitute ("SB 120 PSS1" – SB 120 Proposed Senate Substitute 1) which will be considered in committee tomorrow.  The substitute makes additional edits to the bill as it was filed, requested by various stakeholder groups.  I've also included a section-by-section summary of the contents of the committee substitute, and a brief one-page summary of the major policy highlights of the bill.

Real ID

I'm thankful to hear that Kentucky has been granted an extension on the compliance deadline relating to Real ID.  The extension moves the January 30 deadline until June 6th.  See the letter from the Department of Homeland Security here, which sets the new extended deadline and a list of Kentucky's current points of both compliance and non-compliance:

Defense

Over the course of the historic first week of the 2017 Regular Session two bills were passed that aimed to give greater information to women seeking an abortion and to restrict when abortion should be available because the unborn child can feel pain from the procedure.

House Bill 2 – The Ultrasound Informed Consent Act

HB2 require an ultrasound be performed prior to an abortion so that the mother can be fully informed about the procedure and the life she carries before making the decision to choose abortion.

Senate Bill 5 – Pain Capable Unborn Child Protection Act

SB5 prohibits abortions after the 20th week of pregnancy, except in cases of medical emergencies, because the babies can feel pain.

Both bills contained emergency clauses, making them take legal effect immediately upon the Governor's signature.  The ACLU promptly sued the Commonwealth over HB2 (ultrasound) on the grounds the bill is unconstitutional.  I disagree.

Unfortunately, the duty of defending the law falls on the shoulders of an attorney general I have little faith will actually work hard to defend the law's constitutionality.  And General Beshear removed all doubt with the following press statement on the matter:

As attorney general, it is my duty to enforce the Constitution. It is also my duty to defend laws where the constitutionality is questionable and finality is needed. Adhering to these duties is why, after close review, my office will defend the agencies sued over House Bill 2 that seek our representation. Whether a mandatory ultrasound and explanation is constitutional has split the two federal appellate circuits that have directly addressed it. The Sixth Circuit that includes Kentucky, has not rendered a decision. I will advise that this matter has risks and potential costs, which resulted in over $1 million in legal fees to North Carolina, which lost its defense. Conversely, my office will not represent the state on any challenge to Senate Bill 5, the 20-week ban. This law is clearly unconstitutional based on our review of numerous federal appellate rulings, which state that identical statutes in other jurisdictions are illegal under numerous Supreme Court decisions. While these decisions may not please advocates on either side, my duty is to the law.

Given the AG's lukewarm support for legislation protecting human life, passed by an overwhelming bipartisan number of legislators representing the vast majority of the people of the Commonwealth, I joined with the House Judiciary Chair, Hon. Joseph Fischer; the Speaker of the House, Hon. Jeff Hoover; and the President of the Senate, Hon. Robert Stivers, in filing an amicus brief in support of HB2.

You can view the brief and other court filings right here:

Note the detail and passion of the General's response to the ACLU's motion for the temporary restraining order to temporarily stop the ultrasound requirement.  Spoiler Alert: "...the Attorney General does not take a position on the Plaintiffs' Motion for a Temporary Restraining Order." 

Here's the ACLU lawsuit challenging the constitutionality of HB2 if you care to read it:

DMC

UPDATE:  On November 28th, staff for the Department of Juvenile Justice and the Administrative Office of the Courts informed me that the data contained in this post is not statewide data, but rather specifically from Jefferson County.  I'll update this post with statewide data once the agencies have provided it.

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Over the last two years the Juvenile Justice Oversight Council (JJOC), created by Senate Bill (SB) 200's juvenile justice reforms, has overseen the implementation of that landmark legislation.  In the time since its enactment we have already seen positive outcomes with fewer kids ending up in the court system and being placed, unwisely and expensively, out of home.  This is still the early days of the reforms, but the preliminary indications are very good, and show the bill is improving outcomes for kids without diminishing public safety.

While we continue to discuss and dissect the rollout of this enormous reform bill, our work on the council also includes exploring policy areas that SB 200 didn't directly address.  At the top of that to-do list is an area of policy work that demands our attention and awareness: Disproportionate Minority Contact, or "DMC."  In Kentucky's juvenile justice system, a system Lady Justice demonstrates should be blind, is evidence that minority children are treated differently.

First, it is important to put the data in context.  Remember as you read through this column that as of 2014, Kentucky's youth population (10 to 17 year olds) roughly breaks down to 83 percent white, 10 percent black, 5 percent Hispanic and 2 percent Asian.

In 2015, statewide status offense (a status offense is not a crime but is an offense only because the person committing it is a juvenile, including truancy, possession of tobacco, running away) detentions already demonstrate a disproportionate reality, with 13 percent of those cases belonging to black youth, compared to 77 percent white youth.

With over 1,700 school complaints during the 2015-2016 school year (statewide) we see a vivid image of DMC.  Nearly 1,200 of them were complaints about black youth.  Here are a few other takeaways from this statewide data:

Black youth had nearly the same number of truancy complaints at 322 as white youth at 314 (remember the 83 percent vs. 10 percent).  Still more jarring is the difference in the disorderly conduct complaint category, wherein white youth make up 35 school complaints compared to the 226 lodged against black youth.  On the charge of Assault in the 3rd Degree (the attempted or actual assault on a teacher, law enforcement officer, first responder and other select professions; a class D felony) black youth had 92 school complaints compared to 17 for white youth.  To do the math for you, the percentage comparisons between white and black kids are grossly disproportionate relative to their respective share of the youth population: Truancy – 45 percent black, 44 percent white; Disorderly Conduct – 85 percent black, 13% white; Assault – 80 percent black, 15 percent white.

2015-2016 School Year, Complaints By Race

Complaint data provided by the Administrative Office of the Courts

I wish the data stopped there, but it does not.  Between 2014 and 2016, the likelihood that a juvenile would be deemed a "youthful offender," which means they're prosecuted in Circuit Court for felonies as an adult, has declined for white youth but has increased for black youth.  In 2014, 41 percent of youthful offenders were white, compared to 50% percent black (itself a disproportionate statistic), but the data from 2016 shows those two groups at 19 percent and 71 percent, respectively.

2014-2016 Youthful Offenders By Race (%)

Data provided by DJJ Juvenile Justice Resource Information (JORI) System

This is simply wrong.

Over the last few months the JJOC has heard hours of testimony about DMC in Kentucky and steps already underway to address it.  The September meeting of the JJOC was entirely about the subject.  Prior to the meeting I made a formal request to each member of the council to come prepared with policy recommendations, and they delivered.  I have already begun work on legislation I intend to introduce in the 2017 session to end this miscarriage of justice for minority youth and I intend to include many of these recommendations.  In the 2016 session I sponsored SB 270 that would have required the most prominent state agencies involved in the juvenile justice system to collect data on race, identify DMC in their own systems, and develop and implement plans to eliminate it to the extent they can.  That bill failed to pass, but I am not giving up.  The numbers are painfully clear that we must take steps to eliminate implicit bias in our system wherever it exists, to improve the community resources for troubled youth regardless of their skin color, and to make certain Lady Justice remains blind.

CJPAC Update

As was announced in this space a couple of months ago the Bevin administration and legislative leaders from both parties and chambers were joined to create the Governor's Criminal Justice Policy Advisory Committee.  Since the creation of "CJPAC" we've heard a steady stream of data and policy testimony to provide legislative food for thought as we look ahead to the 2017 session.

Last month the CJPAC divided into several subgroups to study specific issues in greater detail:

• Penal Code
• Reentry
• Recidivism Reduction
• Probation and Parole reforms
• Drug Policy
• Prevention
• Jail reform

I've been assigned to the Penal Code group, tasked with examining any changes to the entire criminal code.  In case you wanted to take a look at every single criminal offense on the books (in the penal code and outside of it) I hope you have some free time on your hands.

Our small group has met once by phone and once in person so far, and we have another meeting scheduled in just under two weeks when we'll discuss continued changes to some of the biggest pain points in the criminal code.  Should some offenses be reclassified to carry more serious penalties?  Lower penalties?  Where are the inconsistencies (possession of child porn carries the same penalty as possession a stolen license plate, for example)?

Last month during the Judiciary committee meeting we heard from prosecutors about the need to eliminate the "violent offense" label in the code.  Especially for everyone outside the court system the suggestion that some crimes are deemed "violent" and others are not is frustrating.  It is also a bit of a misnomer.  There isn't actually a "violent offense" statute, but rather a handful of crimes that carry a "violent" level of parole eligibility.  For these few crimes a convicted individual must serve a full 85% of their imposed sentence before becoming merely eligible for parole.  You can find that statute and the list of applicable crimes right here if you're interested.  It's a short read.  But the bottom line is that there are a great many crimes that anyone of us would deem "violent" that aren't included in that statute.  There's a growing opinion (that I share) that we should remove that label.

We'll take a look at parole eligibility across a number of crimes.  Should the eligibility threshold move up; drop down; stay put?  We have crimes at 15%, 20%, 50% and 85% (50% is a relatively new group, containing a specific high-level theft, certain cases of heroin trafficking).

At the CJPAC meeting last week we heard from the Department of Corrections and from Pew Charitable Trusts (examining Kentucky's own DOC data) and we can identify a number of trends that demand further attention.  For example, the rate of women being incarcerated has increased 25% compared to only 5% for men since 2007.  Property offenses in prison admissions have climbed by nearly 50%.  Two-thirds of prison admissions are for violations of supervision conditions (probation & parole).  I strongly encourage you to take a look at the charts and takeaways in that data presentation.

Needless to say, no small task awaits us.

Bookmark this page or visit my Apple News channel to stay up to date on what's happening with the CJPAC and other legislation as we approach the 2017 session in January.  If you have some input or feedback please contact me here or here!