State lawmakers on Wednesday expressed reservations about passing stronger penalties for animal cruelty in the wake of a Mercer County case involving 43 abandoned and neglected horses.
Legislators on the Subcommittee on Horse Farming were also wary of giving judges more latitude on the forfeiture of animals in such cases.
In September, Charles Borell, 69, a New York resident, entered an Alford plea to nine of 43 counts of second-degree animal cruelty, meaning that he did not admit wrongdoing but accepted there was sufficient evidence against him for a conviction. Borell’s jail sentence was probated for two years, and he agreed not to assume a caretaker role for any animals in Kentucky.
An arrest warrant was also issued for his daughter, horse trainer Maria Borell, but because second-degree animal cruelty is a misdemeanor, she could not be extradited to Kentucky to face charges, Mercer County Attorney Ted Dean told the committee. Dean prosecuted the Borell case.
Dean suggested that if animal cruelty was made a felony, it would be possible to extradite offenders who are outside the state.
“I was hamstrung and continue to be hamstrung by the fact that these were misdemeanor charges,” Dean said. If Maria Borell returns to Kentucky, “my hope is that she would be served and would be brought to justice.”
Furthermore, Dean said forfeiture statutes are “lacking.”
“There is no option under the statute, barring the agreement of the defendant, for the forfeiture of these animals in a criminal prosecution,” Dean said. “In fact, I have prosecuted animal-abuse cases where those animals were returned back to the owner after the service of the jail sentence.
“It is exceptionally disheartening and very difficult to me to explain to my constituents why I can’t do more in these cases, and why horses are going back to the people that let them lie in the field, covered in their own filth, without food, without water.”
Charles Borell voluntarily agreed to forfeit his interest in the animals, some of which were owned and returned to third parties. But had Borell not done so, a judge has no statutory authority to order Borell to forfeit the animals, Dean said. A judge should have that option, Dean argued.
State Sen. Robin Webb, D-Grayson, said making animal cruelty a felony isn’t necessarily the answer.
“If you prosecute a misdemeanor and they get that year in county jail, that’s pretty hard time,” Webb said. “If you get a five-year sentence on a felony, you may not serve that long.”
Webb told Dean “I feel your pain” in not being able to extradite the accused on a misdemeanor, but “to go to the extreme for that anomaly or that one case” isn’t the answer.
Furthermore, Webb said most states are tightening, not expanding, forfeiture rules.
State Sen. Damon Thayer, R-Georgetown, said the investigation and prosecution of the Mercer County case “was handled as professionally and expedited as quickly as possible.”
Nevertheless, Thayer said he shares Webb’s concerns about personal property and due process.
“We’ve got to be able to thread the needle here and strengthen these laws without putting an undue burden on people’s constitutional rights,” Thayer said. “Any time we start adding felonies to the judicial system, there’s a cost involved. If it’s an appropriate cost for public protection, I’m willing to take it.”
Rep. Tom Riner, D-Louisville, noted there are mitigating circumstances in some cases. For example, defendants in some animal-abuse cases are mentally ill, and it doesn’t serve them or the public to make those defendants felons, Riner said.
“I think we need to be as merciful in those circumstances as possible,” Riner said.
Dean expressed appreciation to the thoroughbred industry and donors who contributed money to the horses’ care after they were seized. Had that not happened, it would have placed a big financial burden on Mercer County Fiscal Court.
“It would have been a budget buster, to say the least,” Dean said. “We are not equipped for an expenditure like this.”