A Crisis within DJJ

The Department of Juvenile Justice is in a crisis never witnessed before. Recent reports demonstrate a lack of leadership within DJJ that allows a toxic loss of morale to manifest itself. Meanwhile, executive branch officials are ignoring the needs of front-line workers who have repeatedly tried to communicate directly with them.

For two years, your legislature has received no communication from our Governor on any policy changes or additional resources needed to help him manage the DJJ. In fact, the Governor’s own recent budget proposal did not reflect the request from the Department of the Justice and Public Safety Cabinet. There are reports of assault, rioting, and even a gang rape of a minor in the state's custody. We find these reports reprehensible, and unforgivable, and the inaction from the executive branch intolerable.

“The Commonwealth needs a juvenile system that provides for our most troubled youth’s well-being and the Governor is missing the opportunity to change the path these children will travel. ”

The most immediate priority is ensuring the safety of staff members and the youth. Responsibly deploying defensive measures such as Tasers and pepper spray are but two measures to remedy the situation. Those defensive measures are appropriate only if used judiciously by properly trained adults.

Elected officials met during the interim period because of what’s at stake and are appalled at what we've uncovered.  Kids are locked away 24 hours a day and are not allowed access to basic recreation or a shower. The excuse is understaffing and that it’s simply a more convenient way to maintain order. Workforce issues are challenging but when children are denied food, water and basic self-care, we have a real problem.  We do not cast blame on overstressed and overworked facility staff, who are doing all they can with what they have.  The buck stops with facility administration, the department, the cabinet, and ultimately the Governor himself. After having discussions with those working closest with the children in the Commonwealth’s care, it seems upper management is where the problem resides.

You can't have an effective organization without effective leadership. The lack of leadership at the cabinet level and with our executive branch demonstrates that until now no one there was paying attention.  They are ignoring the problem hitting them squarely in the face and failing to fulfill their basic responsibilities. Adding security measures and a new chief of safety is an admission that no one in the DJJ chain of command is actually doing their job. At best, the Beshear administration is moving the deck chairs around on the Titanic.

From our workgroup discussions, it seems the front-line workers cry out to DJJ leadership but their pleas fall on deaf ears.

Lack of communication is apparent inside and outside the executive branch. The workgroup, with representatives from both parties and chambers, has provided immediate recommendations to quell the rioting, and still, the Governor refuses to engage directly with General Assembly leadership.  He has not even acknowledged our recommendations to mitigate the crisis.  Since the delivery of our letter to the Governor last week, there has already been another riot in Bowling Green.

“Better to send them to restore order in detention facilities than at churches on Easter Sunday.”

The Governor has finally taken a positive step many months too late in deploying Kentucky State Police troopers as a stopgap measure. Before someone gets hurt, assaulted, or killed, we implore the Governor to step out of damage control mode and communicate directly with his co-equal branches of government.  Better to send them to restore order in detention facilities than at churches on Easter Sunday.

Absent leadership, an issue becomes a crisis.  The executive branch has taken a shortsighted view of a volatile crisis and ignored the most vulnerable youth who need their support. Security aside, this administration has also ignored the mental health needs of both DJJ staff and the youth in their care as these riots, assaults and security failures have occurred. The Commonwealth needs a juvenile system that provides for our most troubled youth's well-being and the Governor is missing the opportunity to change the path these children will travel.  Rest assured, if the kids in DJJ detention are neglected long enough, they will eventually become residents of the Department of Corrections as adults.

Senator Whitney Westerfield, R-Crofton, represents the 3rd Senate District, is chair of the Senate Judiciary Committee and a member of the DJJ Workgroup.

Two Lives

The political world was rocked earlier this week when a draft majority opinion, the authenticity of which was subsequently confirmed by the Chief Justice, was leaked to the press.  For those of us in the legal community, any leak from SCOTUS would have been stunning, but a leak on this case, which may upend 49 years of court precedent set by Roe v Wade, was earth shattering.

The pro-life and pro-abortion camps responded swiftly, with either immense joy or apoplectic rage.  I am firmly in the pro-life camp.  I learned of the leaked opinion Monday night at the Alpha Pregnancy Care Center annual fundraising banquet, one of many crisis pregnancy centers across Kentucky.  Moments from the banquet’s conclusion I saw the news break and handed my phone to our keynote speaker; he promptly walked back on stage and in words broken by tears of joy, read the headline to the crowd which responded with a standing ovation.  That moment is one I won’t soon forget.

A room of several hundred people from various faiths stood in united in celebration of the news that a court-made doctrine resulting in the deaths of tens of millions of unborn children may finally be overturned.  Apart from the incalculable human tragedy it brought forth, Roe was poorly decided and wrongly established the “history and tradition” of abortion in our nation prior to 1973.  Even one of the greatest defenders of abortion rights, Justice Ruth Bader Ginsburg, once described Roe as “breathtaking.”

In short, Justice Alito’s draft opinion argues the decision to permit, limit, or prohibit abortion is one that should be left to the elected representatives of the people, not the Courts.  Justice Alito is right.

Quick to criticize Kentucky’s Republican legislature about their position on abortion, the media has adopted popular references to “anti” abortion legislation and abandoning the “pro-life” label we know is the truth.  We vote to limit abortion, and some of us want it banned outright, because we believe there are two lives that must be considered. It is grotesque to perform horrific procedures on a human being that cannot speak for or defend itself. That precious life did not choose under what circumstances it was created, and it should not be murdered by another.  The post-abortive women I’ve spoken to also share their feelings of guilt, shame and emotional trauma they endure having made the decision to end their own child’s life.  Abortion kills one life, and permanently scars another.

Neither the degree of development, nor one’s dependence upon another, has a bearing on one’s right to live. Many argue Republicans only care for lives in the womb, but once they’re born, we lose interest; this theory is as false as it is lazy.  Kentucky Republicans have enhanced our child welfare, foster care and adoption systems, led the nation in restoring dignity for expectant mothers in prison, prioritized mothers in substance use treatment centers, and improved mental health supports and made time for children to start the day with a healthy breakfast in schools,

We can and should do more.  Women and families facing crisis pregnancies, particularly those with low income, need more help, including prenatal and postnatal care.  Adoption should be exceedingly cheap and simple. Biological fathers should also be held more accountable. Kentucky has nearly 9,000 children in foster care today that need loving, permanent homes. Beyond government, each of us should show love and grace to women facing unplanned pregnancies, and those who have already made that life-altering decision. Many women seeking abortions are doing so because they fear the judgment or abuse from their loved ones, school, community, and sadly, even their church.

While we work to make life easier for expecting moms and dads with funding, education and job opportunities, we should always protect the precious lives who cannot speak for themselves.  Protecting those lives is challenging, and for some mothers, carrying the child may be emotionally and physically challenging.  That demands more from us as neighbors, loved ones, and as government leaders, to lighten the burden an unplanned pregnancy creates.  We should never resort to killing an innocent life to do so.  

Yes On 1

Most people want one thing above all else when it comes to dealing with the criminal justice system: fairness. But fairness only comes when both sides start out with an equal footing. Unfortunately, that simply isn’t the case for victims of crime in Kentucky who are not provided the same level of constitutional rights as the accused.

Kentucky crime victims need your help, which you can offer by voting YES on Constitutional Amendment #1 (Marsy’s Law) on or before November 3. We need Marsy’s Law in Kentucky because it would finally give victims of crime a constitutionally protected right to be notified, be heard, and be present at key court proceedings without infringing upon the rights of the accused and convicted.

Kentucky is one of only 15 states without constitutional rights from crime victims.

Throughout my time as both a prosecutor and a legislator, I have spoken to many people who have been hurt by the imbalance our current system allows. Their stories of fear, loss, and pain are heartbreaking. But we have an opportunity to correct this imbalance of justice by supporting Amendment #1.

During my tenure as Chairman of the Judiciary Committee, I have proudly championed many meaningful efforts, including criminal justice reform, drug abuse care and prevention, and protections for dating violence victims, not because they are partisan in nature, but because they are issues that matter to all Kentuckians. Honoring the rights of crime victims is no different. Marsy’s Law is a bipartisan, common-sense effort to help victims of crime achieve the justice they deserve. Its list of local supporters spans the Commonwealth, and includes the Children’s Advocacy Centers of KY, KY Association of Sexual Assault Programs, Mother’s Against Drunk Driving, the Kentucky League of Cities, Kentucky Mental Health Coalition, the Kentucky Sheriff’s Association, and the Kentucky Association of Chiefs of Police just to name a few.

In the coming weeks, you’re going to hear a lot about Marsy’s Law / Amendment #1. And as the campaign season kicks into high gear, you will no doubt hear opponents launch ridiculous and unfounded attacks that are not supported in fact or in law.

Amendment #1 does not change the federal and state due process standards for criminal defendants nor does it change existing self-defense and stand-your-ground laws. And nothing changes the presumption of innocence; in fact Amendment 1 reaffirms that protection for the accused.

Some will argue that they support victims, but that giving them constitutional rights goes too far. To those individuals, I would ask – what if it was you or your loved one who was a victim of crime? Are you comfortable knowing that your rights aren’t protected at the same level as the accused and convicted? Wouldn’t you want a constitutional right to be heard and to be present in the courtroom? Wouldn’t you want a constitutional right to restitution? Victims shouldn’t be cast aside or ignored, but should be valued and heard. Victims deserve a voice.

If you agree, then please vote YES on Constitutional Amendment #1.

Kentucky’s constitution protects against government overreach and guarantees participatory rights in government action—protections victims deserve. The constitutional rights Marsy’s Law would provide will improve the criminal justice system by ensuring fairness for all involved.

The need for Marsy’s Law is not hypothetical. Thousands of Kentuckians, including people you know, become victims of crime each year. For them, the need to be protected and given a voice is deeply felt.

When Kentuckians vote this year we will have the opportunity to permanently enshrine these rights into our state constitution. But to ensure this happens, we need your help to spread the word about Marsy’s Law by telling your friends, neighbors and colleagues about the importance of voting YES on Constitutional Amendment #1. (Just keep in mind that you may have to flip over your ballot to find it.)

Let’s make 2020 the year we will finally give victims the protections, the voice and the dignity they deserve. Join me in supporting crime victims by voting YES on Amendment #1.

Have questions about the amendment? Check out the FAQ’s at VictimsRightsKY.com. Most of the tens of thousands of Kentuckians who become crime victims each year have no rights under Kentucky law at all. Together, we can change that on November 3rd. #YesOn1

How to Respond

Like the rest of the nation, I’ve watched the events of the last few weeks unfold in horror. I certainly am thinking as a citizen, a former prosecutor, and as a senator, about what’s happening, what has gone so wrong, where others have made mistakes, what kind of bills I could file or grant a hearing to to advance the cause of racial equality. But all of those are a distant second place in my mind. I am troubled most about the state of the things as the father of two perfect, funny, loving, very busy, brown children.

I’ve watched our five year old learn about all kinds of things, and we’ve done our best to teach her all the important things in life that all five year olds should know. Above all, we tell her often how much we love her, and how much God — who designed and intended every part of who she is — loves her. We do the same for her two and half year old brother. Hadley, our daughter, became part of our family at birth through a traditional adoption. Hayes became part of our family even earlier than birth through embryo adoption. They are our kids. They know Amanda and me as “momma” and “daddy”. When and how do you tell my brown kids that a part of the world sees them as less than? Our kids are too young to try to explain the unimaginable tragedies of George Floyd, Breonna Taylor and Ahmaud Arbery, but they won’t always be. At some point we’ll have to do what Momma’s and Daddy’s of black and brown kids all over America have to do everyday; break their children’s hearts with the truth. Big parts of this great nation will, seemingly, always view them as inferior to people who look like Amanda and me. Institutions that white people rely upon and trust do not universally favor and work for the good of brown and black kids and adults.

We don’t know how to do it. We don’t want to do it. I said as much to a black friend of mine a few nights ago by text message and he replied simply with “You will find a way. Remember ‘Love never fails.’” He is absolutely right. And while I still don’t know how we’ll do it when the time comes, I pray our love (and we know God’s love) will be sufficient. “Love is patient, love is kind. It does not envy, it does not boast, it is not proud. It does not dishonor others, it is not self-seeking, it is not easily angered, it keeps no record of wrongs. Love does not delight in evil but rejoices with the truth. It always protects, always trusts, always hopes, always perseveres. Love never fails.”

The time to talk to our kids about the world isn’t yet upon us. But there’s nothing from stopping me from taking action right now. Anne Frank wrote in her diary “how wonderful it is that nobody need wait a single moment before starting to improve the world.” I serve in the Kentucky State Senate, and I chair the Senate Judiciary Committee, and the time is certainly ripe for action there. We must be willing to examine the mistakes we’ve made over two centuries in the General Assembly. I must be willing to examine my own failures to push hard enough (or in some cases to act at all) to eliminate systemic inequalities of Kentucky state government. We need to be prepared to listen, and to act.

Over the last few years I’ve tried to advance legislation that would address an issue I didn’t know existed when I first came to the Senate eight years ago: disproportionate minority contact, or “DMC.” But there are other proposals that deserve to be debated. Perhaps we should require a review of enacted bills to verify that it does not have a disproportionate impact on minority Kentuckians. Maybe we should include sunset clauses on bills if a disproportionate impact surfaces. We should eliminate the automatic transfer of juveniles to circuit court as youthful offenders. We should, finally, fully prohibit the use of detention for status offenders. I suspect there is no shortage of legislation we could consider in 2021 and beyond. The use of force, no-knock warrants and body cams are certainly at the front of many minds right now, and for good reason. I don’t have all the answers, and government alone can’t fix every problem, but people across the Commonwealth are sharing ideas and suggestions and we should be willing to consider any that may advance the cause of justice and racial equality.

“How wonderful it is that nobody need wait a single moment before starting to improve the world.”

— Anne Frank

I will not condone rioters and looters and violence, and I will not condone those intentionally inciting and inviting those demons. But peaceful protestors are doing what peaceful protestors have done for generations; peacefully seeking to be heard, peacefully seeking to right a wrong. George Floyd, Breonna Taylor and Ahmaud Arbery are just the most recent, most visible examples of generations of wrongs. James wrote in his letter “...everyone should be quick to listen, slow to speak and slow to become angry...”. I will strive to be quick to listen to those suffering from racial inequality, and do my best to understand their perspective, as much as a white man can. They have this senator’s, this father’s, attention. I may not move the needle much, but as long as our kids see that I’m trying to move it at all, that might make all the difference.

The Balancing Test

Rep. Jason Petrie (Elkton) and Sen. Whitney Westerfield (Crofton)

Benjamin Franklin observed long ago, "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety."  Government acts properly when it offers support to the people and does so while holding sacred their constitutional liberties.  Kentuckians grant this limited authority to government to carry out this supportive role, but retain sole authority to decide what is best for themselves.

No one questions that government should take action in times of emergency, but it must be balanced both to meet the emergency and preserve our “essential” liberties.  Rights exist not only in times of peace and tranquility, but also in times of emergency.  Recent rulings by federal courts have determined that Governor Andy Beshear issued orders in response to COVID-19 that failed to maintain the required balance and violated Kentuckians’ constitutional rights.  

Governor Beshear violated the federal and Kentucky constitutions by discriminating against people of religious faith.  Rights associated with religious liberty receive particular constitutional priority.  Arguably, there is no more important right than the right to hold religious beliefs and act upon them. The Governor’s blanket orders prohibited people of faith from gathering at their houses of worship while many other places were left open and encouraged to use CDC guidelines such as social distancing and practicing safe hygiene.  The Governor did not extend the same opportunity to houses of worship.

“Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.“

Similarly, the Governor’s orders unconstitutionally prohibited Kentuckians from traveling.  The right to travel applies broadly among Kentuckians and poses a great threat when restricted.  The mobile nature of society requires the ability of persons to travel without undue restriction, and is especially significant where there is no natural border between states.

Whether constitutional rights are honored eventually is irrelevant.  Constitutional rights are so foundational to our civil society and the balance of power between government and the governed, that they warrant expedited review by courts to avoid irreparable harm.  If the government delays considering an issue, it effectively terminates any real protections afforded by the constitution.  Regrettably, Governor Beshear has chosen in each legal challenge to wait for a court ruling detailing the Governor’s violations before issuing new orders.

Recently, a group of Kentuckians filed another lawsuit against Governor Beshear for violating their constitutional rights to assemble peaceably and protest.  Stationing Kentucky State Police in and around the Capitol to restrict access, banishing demonstrators to a distant parking area, and placing Emergency Response Team members with sharpshooter equipment in and atop the Capitol Annex, evidences a government-first mentality that belies a fear of the very people government is charged with serving.  Constitutional rights cannot yield to the executive branch, especially at the seat of its operations.  Our federal and state constitutions memorialize the fact that the rights of each person existed prior to government, and that those rights are superior to both kings and governors.

Governor Beshear, in particular, cannot plead ignorance of the law or inexperience in government.  The Governor is the son of an attorney, and an attorney himself.  The Beshear family has been in state government for the last five decades. He is the son of a former House member, lieutenant governor, and governor.  Immediately preceding his current position, the Governor acted as Attorney General charged with defending constitutional rights.  This Governor, more than any, should understand constitutional rights and appreciate the necessity of their full protection.

Only during its next regular session, which convenes in January 2021, may the General Assembly act on behalf of the people by modifying existing laws, enacting new legislation, adopting resolutions, performing official inquiries, censuring and impeaching.  Until then, note carefully the actions of this Governor.

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Rep. Jason Petrie (Elkton) represents the 16th House District, including all of Todd and Logan Counties, and a part of Warren County, Kentucky. Sen. Whitney Westerfield (Crofton), represents the 3rd Senate District, including all of Christian, Todd and Logan Counties. Both legislators serve as Chair of the Judiciary Committee for their respective legislative chambers.