2011 General Assembly

Kentucky drug laws would change under new proposal

Report due on penal code reform

jcheves@herald-leader.comJanuary 19, 2011 

FRANKFORT — Many of Kentucky's drug criminals would be sentenced to probation and addiction treatment instead of prison under a broad reform bill proposed Tuesday by a high-powered committee created to find cheaper alternatives to incarceration.

The Task Force on the Penal Code and Controlled Substances Act is proposing changes in the law for the 2011 General Assembly, which resumes Feb. 1. It will present its first report on Wednesday to the legislature's Interim Joint Committee on the Judiciary.

Among many other things, the 100-page bill draft — still a work in progress — would reduce penalties for drug possession and for drug trafficking at lower volumes while establishing a new Class A felony of "commercial drug trafficking" that would bring at least 20 years in prison.

Task force members said they want stiff prison sentences for major drug dealers but not for addicts whose only crime is possession of drugs for their own use. One-fourth of Kentucky's nearly 21,000 prison inmates are serving time for drug offenses.

The bill would establish a penalty of "presumptive probation" for some lesser offenses, such as drug possession, requiring judges to sentence defendants to probation rather than prison unless the judges can state a compelling reason to do otherwise. It also would require addiction treatment for those convicted of drug possession.

Marijuana possession would drop from a Class A misdemeanor, with a penalty of up to a year in jail, to a Class B misdemeanor, with a maximum jail term of 45 days, if the judge ordered incarceration at all.

The offense of drug trafficking near a school, which now covers drug crimes within 1,000 yards of a school, would be reduced to 1,000 feet. The persistent felony offender law — a favorite of prosecutors that strengthens penalties against repeat felons — no longer would cover drug-related crimes.

The state would have to develop "graduated penalties" for criminals who violate the conditions of their probation or parole so that they're not routinely revoked and sent to prison for technical offenses.

Also, any state legislation to create new crimes or increase penalties for existing crimes would have to include an estimate of the additional cost of imprisoning or supervising more criminals and specify from where that money would come.

The bill requires any savings, which would be tracked and reported to lawmakers on an annual basis, to be invested in expanded addiction treatment programs. The state now spends more than $460 million a year on its Corrections Department.

Task force members on Tuesday debated parts of the bill, including the "quantity cutoffs," the amount of drugs necessary to trigger stronger penalties for possession and trafficking. At present, the bill sets the cutoff at four grams for most drugs and two grams for methamphetamines.

Jennifer Hatfield of the Kentucky State Police crime laboratory told the task force that prescription pills — the source of much drug crime in Kentucky — come in milligrams, not grams. It would take 133 Oxycodone tablets to reach the four-gram threshold, Hatfield said.

Task force member Tom Handy, a former commonwealth's attorney, said the four-gram threshold would put an unrealistic burden on prosecutors trying to build cases, especially combined with other proposals in the bill.

"The trafficker is being given too many breaks," Handy told his colleagues.

But defense lawyer J. Guthrie True, also a task force member, defended the cutoffs and said the whole point of the bill is to separate hardened career criminals from drug addicts. It costs Kentucky $19,000 a year to imprison someone, so the state must be more selective, True said.

"It's a move in the right direction, it's a move in the reasonable direction," True said. "I'm afraid that if we don't do this, then we'll lose a lot of what we want to do here in terms of putting the right people in prison for the right lengths of time."

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