Why Kentucky’s top business group wants to make drug possession a misdemeanor crime

One of Kentucky’s largest business organizations is reigniting a controversial conversation about drug-related crimes by asking lawmakers to downgrade some drug possession charges from felonies to misdemeanors.

The Kentucky Chamber of Commerce announced a list of nine recommendations Monday as part of its first-ever opioid summit in Lexington. The gathering represents a broader push from the organization and its network of 25,000 business professionals to lessen penalties for Kentuckians struggling with substance use disorder and educate the business community about how the opioid abuse epidemic is affecting them.

“From our perspective, it’s not just a budgetary issue,” said Ashli Watts, senior vice president of public affairs for the group. “We have a workforce issue. We know we’re spending too much on corrections and we’re not seeing the (intended) outcomes. Our communities are not getting safer.”

“Treating it like an addiction and not necessarily a crime,” is how the state should proceed, she said. “This is a population that needs second chances.”

Nearly 1,600 people in Kentucky died from opioid-involved overdose deaths in 2017, according to the state Office of Vital Statistics. The state’s overdose death rate has ballooned since 2012, increasing by 117 percent for fatal heroin overdoses and swelling by 564 percent for overdoses by synthetic opioids such as fentanyl. Possession of one of these substances and other scheduled drugs in Kentucky, even for first time offenders, is a Class D felony, which typically carries with it one to three years in prison.

Kentucky incarceration rates have risen steadily in the last decade. Between 2012 and 2016, the state experienced an overall surge in its number of prison inmates, driven primarily by a nearly 40 percent increase in those charged with Class D felony drug offenses, according to two-year-old report from the Kentucky CJPAC Justice Reinvestment Work Group, commissioned three years ago by Republican Gov. Matt Bevin to address the state’s rising incarcerated population and recidivism rate.

“What’s driving our prison population, to a great extent, is technical violations related to substance use disorder,” such as a positive drug screening or missing a meeting with a parole officer, said Van Ingram, executive director of the Office of Drug Control Policy. “We’re trying to increase the odds of that success.”

Ingram wouldn’t comment on the chamber’s recommendation but said he expects “it’s something we’re going to have to look at in the future, but I don’t know exactly how it will shake out.”

The total number of inmates with a Class D felony grew to nearly 10,000 by the end of 2016, most of whom were housed in county jails for lack of space, according to the report. It costs roughly $18,400 to incarcerate one person for a year in Kentucky, which means the increase in inmates with drug-related offenses in 2016 alone likely cost taxpayers around $82 million.

“Kentucky uses substantial prison resources on low-level, nonviolent offenders with limited criminal history,” the CJPAC work group found before touting the benefits of reclassifying Class D drug offenses as misdemeanors.

The business group is urging the state to adopt comprehensive policies that prioritizes rehabilitative options over penalties, particularly for first- or second-time offenders. This could mean reducing the charge for possession of a scheduled drug to a new, more severe class of misdemeanor, but a misdemeanor nonetheless.

Watts said she plans to work with members of the General Assembly in the upcoming session to craft legislation to this end.

Damon Preston, Kentucky’s public advocate and former CJPAC member, said altering the criminal statute in this way “would really change the way Kentucky law enforcement treats substance abuse.”

Not all Class D felony convictions are dolled out with prison sentences; some are given the option of rehabilitative diversion programs for substance abuse in lieu of prison time. But even then, Preston said, “you still have that hammer of a felony hanging over your head.”

Amanda Hall, who is in long-term recovery and spent time in prison for trafficking prescription opioids as a young adult, said she didn’t receive adequate treatment for substance use disorder until she was released. She now works as the Smart Justice field organizer for the American Civil Liberties Union of Kentucky, but said she still struggles with the felony charges on her criminal record.

“We are absolutely treating a public health crisis criminally, and we are getting horrible results because we are never getting down to treating the mental health component,” she said.

Kentucky lawmakers in the last decade have passed a handful of laws and made even more failed attempts to raise the bar for some drug-related felony charges and to reclassify lower-level possession of drugs. Most comprehensive penal reform efforts have failed, however, and lawmakers have repeatedly created whole new categories of felony classifications.

Under former Gov. Steve Beshear, the General Assembly passed a criminal justice reform law in 2011 to reduce drug crime penalties and alleviate financial pressure on the state’s correctional facilities. The law did help curb the number of inmates arrested on drug-related charges, but the inmate population since then has continued to balloon with people predominantly charged with drug-related crimes.

In 2016, chamber leaders supported a low-level felony expungement bill, that easily won support from Republican and Democratic lawmakers. It was meant to help people convicted of Class D felonies . The group also backed a 2018 bill that died in committee that would’ve downgraded non-violent felony charges — including reducing drug-related Class D felonies to Class A misdemeanors — in hopes of steering those struggling with substance use disorder away from the penal system and into treatment programs.

In addition to reclassifying drug possession, the chamber is urging increased state support for substance abuse treatment options, further efforts to promote hiring people in recovery, and adding more safe sites across Kentucky where people can swap used needles for clean ones without punishment. Currently there are about 60 needle exchange programs spread across the state’s 120 counties.

These proposals are likely to be more palatable than a broad penal code revision, said Preston, who’s doubtful any proposal of this nature will win approval in the next legislative session.

But he’s keeping his outlook in check.

“I think we’re closer than we have been,” he said. “It is something that’s coming, we just might not quite be there yet.”

Alex Acquisto is a corps member with Report for America, a national service program made possible in Kentucky with support from the Blue Grass Community Foundation. Reach her at 859-231-1427, @AcquistoA
Alex Acquisto covers health and social services for the Lexington Herald-Leader and She joined the newspaper in June 2019 as a corps member with Report for America, a national service program made possible in Kentucky with support from the Blue Grass Community Foundation. She’s from Owensboro, Ky., and previously worked at the Bangor Daily News and other newspapers in Maine.
Support my work with a digital subscription