Since the Kentucky General Assembly’s landmark passage of House Bill 463 in 2011 — which took measures to steer nonviolent drug offenders into treatment instead of incarceration — Frankfort has pushed forward with criminal justice reform to curb the state’s prison population and spending. However, language inserted into a bill just before it passed on the last day of this year’s legislative session has some criminal justice reform advocates fearing the state is going backward on such efforts, pushing low-level heroin dealers and addicts into long prison sentences in a misguided attempt to address Kentucky’s escalating opioid epidemic.
On Monday, Gov. Matt Bevin signed into law House Bill 333, which will go into effect on July 1. The wide-ranging bill limits the amount of opioid painkillers a physician can prescribe at one time, in addition to increasing the sentences of those trafficking fentanyl — an opioid 50 times more potent than heroin that has contributed to the alarming increase in fatal overdoses as it is cut into heroin supplies without the user’s knowledge.
But language added to the bill — mimicking Senate Bill 14 that passed that chamber easily but stalled in the House — went further than just the trafficking of fentanyl and other more powerful derivatives of the drug, significantly lengthening the possible sentence of those dealing or even sharing any amount of heroin, even if that person is addicted to the drug.
Current law includes a so-called “peddler distinction,” in which an addicted person sharing under two grams of heroin for their first offense is charged with a Class D felony that carries a one- to five-year sentence and is eligible for parole after serving 20 percent of that sentence. The new law would end such a distinction, making the first offense for sharing any amount of heroin a Class C felony with a five- to 10-year sentence and parole eligibility only coming after half of the sentence is served. A second offense would be a Class B felony with a term of 10 to 20 years.
Such a change to trafficking laws would be costly, as the Legislative Research Commission estimated SB 14 — which was less stiff than HB 333, not making parole eligibility dependent on serving half the term — would cost the state an additional $30 million if the 497 inmates currently incarcerated on Class D heroin/fentanyl charges had received Class C felonies.
Before passage of HB 333, the progressive Kentucky Center for Economic Policy warned that the newly amended bill would “send our state in the wrong direction with criminal justice issues,” as it would not only “lock up more addicts for longer periods of time and be ineffective in addressing the state’s addiction problems, it would be very costly for the already overburdened criminal justice system… Meanwhile, the state’s inmate population has been growing and the corrections system budget is expected to be $35 million over projections this year — and this is on top of $89.6 million over the past five years in extra money needed due to the state’s inmate population being over projections.”
While there were some objections among legislators to the very late changes to the bill and technicalities on the prescription limits for physicians, it passed with a large majority in both chambers, with many urging the state to crack down on dealers of the deadly fentanyl and unscrupulous doctors. Sen. John Schickel, R-Union, the lead sponsor of SB 14, made clear on the Senate floor before voting for HB 333 that he believed much of the reform of 2011 had been a failure that only exacerbated Kentucky’s heroin problem, and now is the time to get tough.
“I believe in treatment, but we have to keep in mind that we are, at least the majority party is, the party of personal responsibility,” said Schickel. “And where I come from, people are sick and tired of hearing excuses for people dealing in heroin. Killers, murderers dealing in heroin, and then those same traffickers claiming to be victims. I’m sorry, they are not victims, they are criminals and they need to be punished.”
Rebecca DiLoreto, the legislative agent for the Kentucky Association of Criminal Defense Lawyers, tells Insider Louisville that HB 333 was a frustrating — if not surprising — mistake by legislators, who are going backward on the criminal justice reform of HB 463 and instead “building an edifice of incarceration.”
“We just have a real addiction to incarceration and it is our default position,” says DiLoreto. “And it hasn’t helped the commonwealth to date. To me it doesn’t make sense to keep on passing more and more bills to lock more and more people up while you say that you’re going to address something.”
While the Bevin administration created the Criminal Justice Policy Assessment Council last year to take a deep look at further reforms to Kentucky’s criminal code — led by Justice and Public Safety Cabinet Secretary John Tilley, who was the lead sponsor of HB 463 in 2011 — DiLoreto says she was not impressed by their narrow focus on just one felon re-entry bill this session, instead of “re-evaluating what has been a 200-year approach to incarceration as the solution.”
Addressing supporters of the new law who argue a longer prison sentence could actually protect opioid addicts from harm, DiLoreto counters that “the reality of prison is that it’s a place where drugs flow freely. So to think that by incarcerating them we protect them from themselves is really inaccurate… They have access to drugs whether they are in our out. Shouldn’t we instead spend our money on strong treatment intervention?”
DiLoreto adds that Schickel made very clear when testifying for his bill in committee that it was specifically designed “to roll back as much of HB 463 as possible,” which she fears might be a growing trend in Frankfort.
When passed in 2011, HB 463 was projected to save the state $42 million annually by steering offenders charged with nonviolent drug crimes into addiction treatment and early supervised release instead of prison — including the peddler distinction for addicts sharing small amounts of heroin. Such estimates turned out to be overstated, as many parole boards, prosecutors and judges turned out to be reluctant to embrace such changes, and the population of state inmates has actually increased by nearly 10 percent since that time. However, Sec. Tilley stated at the outset of the Criminal Justice Policy Assessment Council that without HB 463 in place, the inmate population might have increased by as much 50 percent today, reaching nearly 30,000 inmates.
Sen. Whitney Westerfield — the Republican chair of the Senate Judiciary Committee and a former assistant prosecutor in Christian County — tells IL that he has heard criticism similar to that of KCEP and DiLoreto on the version of HB 333 that was passed, but “I’m not sure it’s going to happen that way, though.” Since he began serving in the Senate in 2013, Westerfield has been known as a champion of criminal and juvenile justice reform, and he says this new law should not be interpreted as an abandonment of the 2011 reform bill’s mission, which he still supports.
“At the end of the day, we decided that this was a policy worth approving, because we’re continuing to see heroin and now fentanyl abuse occur at a really alarming scale,” says Westerfield.
Though Westerfield acknowledges there is some value to the school of thought behind keeping the peddler distinction, he adds that this has been used and manipulated by major heroin traffickers to avoid stiff sentences.
“Traffickers know what the limits are, and you have commercial traffickers that are not addicts, but they just skirt the limit… and they sell just underneath that,” says Westerfield. “That is consistent with my experience as a prosecutor. I saw people who everybody in the room knows they’re a dealer. They know they’re a dealer, their lawyer knows, the judge knows, the prosecutor and law enforcement knows… but they’re just dealing under the threshold so that they can get the softer penalty.”
He adds that people who deal “don’t often suffer from an addiction with the same drug, if an addiction at all,” and the rapidly escalating and deadly opioid crisis in Kentucky shows that lawmakers have to try something different.
“Because we’ve tried having that (peddler) distinction there for a time, and we’re not seeing as much improvement as we’d like, there was a willingness to try stiffening penalties for traffickers in these most serious drugs only, just to see if that makes a difference,” says Westerfield.
Westerfield adds that prosecutors and law enforcement also will have “wide discretion” on whether to charge small-level heroin peddlers with the maximum trafficking felony, disputing the suggestion that the current climate surrounding the opioid epidemic will cause them to disproportionately use the biggest stick.
“I think it may depend on where you are in Kentucky… you can even find distinctions between city government law enforcement and county government law enforcement,” says Westerfield. “They don’t all think about things in terms of locking people up and throwing away the key. You know a lot of law enforcement folks that are very sensitive to the need for substance abuse care… I think hopefully we’ve moved past that mentality.”
DiLoreto doubts such optimism from Westerfield, saying “I haven’t seen those parts of the state” where prosecutors have fully embraced alternative sentencing and treatment, as most “are going to bring these (maximum trafficking) charges every time. They’ll bring them so they can plead to something, then they’ve got you. Maybe you had a good defense, but given the consequences, you’re going to take a plea.”
While acknowledging that more state funding is needed for addiction treatment programs and the significant budget impact of HB 333, Westerfield says this is a situation where tackling a crisis takes precedent over dollars and cents.
“I know for certain that the fiscal impact was of significance to a number of legislators in both parties, and continues to be, but that was outweighed by the impetus to do something to address this growing problem,” says Westerfield. “I mean, at some point you make a decision about whether or not the price tag is worth the good it can do for the people you represent. And collectively the legislature believed that it was. I agree.”
Westerfield does not believe this is a sign that Frankfort is looking to reverse the reforms of HB 463, as it was the product of Sec. Tilley’s work and “outside of a handful of legislators, I think you’ll find the appetite for increasing access to treatment is still just as strong.” Acknowledging that Schickel is one particular legislator explicitly calling for rolling back the 2011 reforms, he adds, “I think you’ll find that sentiment in small pockets, but I don’t believe there’s an overall desire… I don’t think that’s something we’re trying to do.”
DiLoreto disagrees, believing that the new law is a serious blow to the criminal justice reform effort that will only exacerbate prison overcrowding and budget shortfalls. If more laws are passed that peel away HB 463 reforms, she believes Kentucky may be forced to reinstate the use of private prisons, “or we’re going to face a lawsuit based on the conditions in our county jails and state prisons.”
“I would like to think that Sec. Tilley does not want to reopen private prisons,” says DiLoreto. “Certainly when he was House Judiciary chair he was explicit about his views on it, so I just don’t think they would have changed. But that’s what I would hope.”
Mike Wynn, Tilley’s spokesman at the Justice Cabinet, told IL that the secretary was on vacation last week and unavailable to answer questions about this legislation. Wynn did not reply to multiple follow-up emails this week. Over the past several weeks, the spokespersons for Gov. Bevin have not replied to multiple emails about HB 333.