This Year’s KYGA Justice Bills – an interview with Jazmin Smith

Speaker 2 00:00:19 Hello and welcome to Moving Kentucky Forward. I'm Bruce Maples, publisher forward Kentucky. When we follow bills in the General Assembly, many of them are easy to understand and it's clear what they are about. But often when it comes to justice bills, they're not as clear and it's not obvious what they are about. Sometimes we miss vital details or cause we are not inside the justice system, we don't really understand the implications of the bill. So today we're with Jasmine Smith, who up until recently has been a public defender. She is a lawyer in Kentucky, and she follows the General Assembly very closely as part of her work on Myo Kentucky podcast. Let's listen, as Jasmine walks us through some of the justice bills that passed and didn't pass in this year's general Assembly. Speaker 3 00:01:11 We're here today with Jasmine Smith, who is one of the co-hosts of the best political podcast in Kentucky, Mild Kentucky podcast, which we are proud to claim as part of the Forward Kentucky Network. And formerly a public defender for six years, which puts her in Saint category. <laugh>. Uh, Jasmine Smith, welcome to Moving Kentucky Forward. Speaker 0 00:01:39 Yeah, thanks for having me. And thank you for saying nice things about our podcast, Speaker 3 00:01:43 <laugh>. Well, of course, I, I do. That was sincere. I do think it's one of the best I've ever heard. Uh, so I wanted to have you on to talk, uh, legal stuff. Uh, sure. I didn't sleep in holiday in express last night, so I can't claim to know anything about the law. Uh, I am not a lawyer, as they say, but you are, and you follow Frankfurt workings closely in the legislature on your podcast. So there were some bills that were passed that I thought it might be worth talking about. So do you have a particular one you want to start with? I mean, I've got a list here, but we can pick the one that you're most, uh, excited to talk about. Speaker 0 00:02:26 Well, I don't, I don't know how excited I am to talk about some of them, but I think the one that maybe there's a lot to talk about is probably House Bill 1 54, if you, if we wanna start with that one. Sure. Speaker 3 00:02:40 Which is, by the way, as somebody who also covers the legislature fairly closely, I read that bill like four times and I never did understand it. So, uh, explain it to us. Speaker 0 00:02:53 Okay. So there is some context that I think talking about this bill requires. So, okay. This bill, originally, when it was filed, removed a penalty enhancement for refusing to submit to a blood test after being arrested for a dui. Um, and so the law now, if you get arrested for a DUI and they ask you to submit to a blood test and you refuse, then your sentence can be enhanced, um, just for that refusal. Okay. And so the original bill removes that penalty enhancement, and I think this was likely in response to a recent Kentucky Supreme Court case, McCarthy versus Commonwealth. So, to talk about McCarthy, we have to go back a little bit further. Um, to the US Supreme Court back in 2016, there was a case called Birchfield versus North Dakota. Mm-hmm. <affirmative>. And in that case, the US Supreme Court held that the Fourth Amendment permits warrantless breath tests. Speaker 0 00:04:01 So like a breathalyzer incident to an arrest, but not a warrantless blood test. Um, okay. And, and blood tests are, are more accurate and they can test for other substances other than alcohol. Um, so under Birchfield, warrantless blood tests became an unreasonable search under the Fourth Amendment. Um, so after Birchfield, we got two conflicting cases from the Kentucky Court of Appeals. Um, one case said that you can't enhance the penalty for a refusal. One said that you can, and they kind of tried to distinguish from one another. So the Supreme Court of Kentucky finally took up McCarthy to settle the conflicting case law and decide what is appropriate after birchfield. And so, um, they were deciding whether McCarthy's refusal to take a blood test could be used against him at trial and whether it could be used to enhance his penalty. And the Kentucky Supreme Court held that it could not be used to enhance his penalty, but it could be used during the guilt phase at trial to explain why there wasn't any blood evidence. Speaker 0 00:05:13 So you can no longer use a refusal to jack up someone's sentence, but you can use it during their DUI trial just to explain why there might be evidence missing, basically. Okay. So that became the law, um, in 2021. So House Bill 1 54, um, removed that penalty enhancement and I think brought the statute into conformance with McCarthy. But this part of the bill was actually removed in a committee sub, um, that was adopted. And so we still have that refusal enhancement despite the Supreme Court saying, you can't use it to enhance someone's sentence. Um, so I think that's what the original bill intended to do. Speaker 3 00:05:58 D So we still have it despite the US Supreme Court saying you couldn't use it. Right. Speaker 0 00:06:04 So the US Supreme Court case didn't interpret Kentucky's refusal statute. Um, it was interpreting whether you could do a blood test without a warrant, and they Oh, that's right. They said no. And so Kentucky was interpreting birchfield and they're saying, Okay, the Fourth Amendment applies to a blood test, so we're not going to allow the refusal to enhance someone's penalty. Mm-hmm. Um, and so they were interpreting birchfield. And so, um, but we, we still have that statute on the books. Um, that was what the original bill intended to do, but there was a committee sub and now it doesn't do that. Um, so now all it does is it no longer requires license plate surrender, um, for certain DUI convictions. It now says may instead of shall surrender your license plate. So it makes it, um, permissible instead of mandatory. Um, it, it doesn't affect license suspensions or anything like that. Speaker 0 00:07:10 Um, but you don't necessarily have to surrender your license plate unless there's a court order to do so. It also changes the instructions for blood tests. It allows the Department of Criminal Justice training to provide instructions and get approval for manufacturers instead of having to follow the manufacturer instructions. I don't know why this was made part of the bill. There must be some discrepancy between manufacturer instructions and what the Department of Criminal Justice training, how they want to, how they wanna conduct these breath tests. Um, so there must be some discrepancy, and this is allowing for law enforcement to use either one. And so I don't know, like what's the nuance of the, of that provision, um, why they wanted that change. But it, it, it seems like a pretty small technical change. Speaker 3 00:08:04 Okay. Hmm. Well, I don't feel so bad for not understanding it now that you Speaker 0 00:08:08 Explained it. It, that's just a couple other things too. It, it requires, um, detention based on a breath test instead of a blood test for a blood alcohol content of over 0.15. Um, so it allows for detention in, in a broader circumstance. And then it also no longer requires officers to request warrants for breath or urine tests. Um, so it removes that requirement. And then it also removes a requirement that a death or serious injury resulting from an accident, um, dur like during a dui, it removes that requirement in order for a judge to issue a search warrant or order for a defendant's blood or urine testing. So, um, those are the things it does, although it originally also intended to remove a penalty enhancement that part of the bill is taken out. Speaker 3 00:09:04 Okay. All right. So as you said, there are any number of bills that we're not excited about, but there's one that I was actually supporting and very pleased to see, and that was House Bill 2 69, uh, which, uh, talks about mental illness. Why don't you tell us about that one? Speaker 0 00:09:23 Yeah, this is definitely a very good bill. Um, it was sponsored by Chad McCoy, who's a Republican. Um, and it had bipartisan support. Um, but I will note that many Republicans still did vote against this bill, but it bans the death penalty for people who, at the time of the crime had a symptomatic active and diagnosed serious mental illness. And so, um, the mental illnesses are specified in the bill. It includes schizophrenia, schizoaffective disorder, bipolar or delusional disorder. And so there has to be a documented history. Um, and it also can't be primarily manifested by criminal conduct or drug or alcohol use. Hmm. So, um, if someone's charged with, uh, a capital offense and the prosecution is seeking the death penalty, um, the defense must petition the court 120 days before trial, um, alleging a serious mental illness. And then a judge makes a decision within 90 days before trial of whether this provision will apply. Um, the defense will offer evidence, and, and the commonwealth, the prosecutor's allowed to rebut that evidence. So now we have, um, a bill at least restricting the death penalty. You know, we've, we've already banned the death penalty for juveniles and people with severe intellectual disabilities, and now we have this serious mental illness provision. So, um, although we still have not banned outright, we're, we're slowly chipping away at it. Speaker 3 00:10:57 Yeah. Yeah. I was very pleased to see that one and, and hope that we continue to chip away. What about HB 1 27? So this was another one that I thought was an interesting bill to come out of the legislature. Speaker 0 00:11:13 Yeah. So this bill's about court-ordered mental health treatment, and this is a, another bipartisan bill that, um, expands who can be court ordered to do treatment. And so, um, a prior statute used the word examination so that they'll undergo an examination for treatment. Um, it now says evaluated. I think that's just a difference in medical terminology. Um, you know, I'm not a physician or a mental health provider, but I think the way that I think about these words examined is, is more of like an investory thing and an evaluation is more of an overall assessment. And so that's just a technical change in the language. Um, but then what it also does is it expands who can be court ordered to treatment. It used to require a prior hospitalization in the last two years, an involuntary hospitalization. Um, now it only requires a history of non-adherence to treatment, um, which has been a factor in necessitating arrest or hospitalization in the last four years, or resulted in a threat or serious physical injury to yourself or others. Speaker 0 00:12:29 So, um, I think this is a big change in who it applies to. It. It used to be that, um, you needed to have been involuntarily committed in the last two years plus, um, unlikely adherence to voluntary treatment. Um, and so I think this expands that to someone who has just had mental health issues and has not adhered to treatment in the last four years. Um, so I think that broadens that a lot. I, we talked about this bill on my podcast and my co-host and I, I think, disagreed. He thought that this bill tightened the language up, um, for who's eligible. I think it expands it because you're gonna have a lot more people who have, have a history of mental health issues, but not adhere to treatment, or they've made some kind of threat of harm, um, but haven't been hospitalized over a four year period than people who have been involuntarily hospitalized in the last two years. Speaker 3 00:13:33 So one of the things that re that goes with this indirectly, I, I make a distinction when I talk about it between emotional health and mental health and mental health being like the, the, uh, diseases that you mentioned earlier. And so emotional health being, uh, things like depression that's not physically caused, things in your emotional state that need to be dealt with. Does this cover all of those sorts of things? Anything that somebody would need outpatient treatment for that isn't their body. Speaker 0 00:14:08 Yeah. This bill, it, it doesn't have specific conditions the way that the death penalty ban has. Um, it's just a, a diagnosis of mental illness or, but it, it doesn't, it doesn't specify what that mental illness is. It just requires a diagnosis of a serious mental illness plus, um, a history of like not adhering to voluntary treatment. And, and then those requirements that I talked about, um, where you've needed, um, where you've made some kind of threat or harmed someone or yourself in the last two years, um, those kind of things. So I think that this bill expands who can be court ordered to do treatment, and, um, I think, you know, court ordered treatment is certainly a good alternative to incarceration. Um, but it, it can often, you know, when someone's court ordered to do treatment, if they don't comply, there are consequences for that. Um, and so if more people are, are ordered to do something, you, you have a risk of incarceration due to non-compliance or hospitalization due to noncompliance mm-hmm. <affirmative>. And so, um, I don't necessarily think that this is a bag bill. Um, but, but it could be, um, used in a way that threatens the liberty of more people. Speaker 3 00:15:40 Yeah. But it could also be used to keep people out of jail. Speaker 0 00:15:43 Yeah. Yeah. I agree. Speaker 3 00:15:46 Okay. You know, as long as we're talking about penalties, uh, there was HB two 15 where the legislature decided to do something about fentanyl. I'm assuming, and I did not study this bill closely, I assume they increased the penalty for having, for trafficking fentanyl. Speaker 0 00:16:05 Yeah. So they increased the parole eligibility for it. So, um, it makes trafficking fentanyl or derivatives of fentanyl, um, an 85% parole eligibility crime. So that means that someone has to serve at least 85% of their sentence in prison before being even eligible for parole. That doesn't mean they'll get parole, it just means they get to see the parole board. Um, it used to be a 50% crime. So if someone, um, had a 10 year sentence for trafficking after five years, they could see the parole board. Now on a 10 year sentence, the parole eligibility would be eight and a half years. And so this bill, it, it doesn't create a new crime. We're not incarcerating like a new type of drug trafficker. Um, we already had a trafficking fentanyl statute. Um, it's just keeping offenders in prison significantly longer. It also prevents them from being eligible for any kind of diversion program. Like if it's a first offense, um, they're not eligible to have that charge diverted under this bill. The last thing I was gonna note about this one is the statute includes intent to sell or distribute. Um, so I think that our trafficking laws also have, can encompass low level users who have never sold, They've just distributed to friends or other users that, you know, this bill encompasses them too. And so 85% time, um, is a steep price to pay. Speaker 3 00:17:40 Yeah. And I guess the reasoning there is that fentanyl's also very dangerous. Speaker 0 00:17:46 So Yeah, it, it absolutely is. And you know, I think we definitely need tools to combat like the heroin and fentanyl, um, problem that we have in Kentucky. Um, but this doesn't create any new crime or anything. It, it just, it just holds, holds people charged for a lot longer. Speaker 3 00:18:08 Okay. Uh, occasionally the legislature actually looks ahead, looks forward and anticipates issues, and I feel like that's what they did with SB 1 76. Speaker 0 00:18:22 Yeah. So Senate Bill 1 76 is, um, about facial recognition technology. So this bill would basically allow us to study the use of facial recognition technology for law enforcement purposes. Um, the sole sponsor of this bill was Whitney Westerfield. And what it does is it creates a working group, and the working group will develop a model policy by 2024 to allow law enforcement to use this technology. Um, the way that I've heard about facial recognition technology, like we know, like, you know, newer phones have it and things like that. Um, but China has implemented facial recognition technology for a social credit system where people gain credit for like positive social behaviors. Um, but like can get banned from certain things like flight or things like that for, um, unsociable behaviors like stealing or, um, you use an example that I saw was like using one of a shared bike and not like putting it back in the proper place and things like that. And so, um, it, I mean, it, it, it's a form of surveillance <laugh> essentially. Um, and this bill allows us to study it and the, the group that's gonna study it will have a model policy for law enforcement to use it, um, within two years. So yeah, so it'll be attached to the justice and public safety cabinet and it'll be chaired by the secretary of the cabinet. Um, and then it, it will have, um, representatives from like the Kentucky Associations of Chief of Police, the League of Cities, mostly law enforcement groups though. Speaker 3 00:20:13 So in the past there have been bills that dealt with juvenile justice especially, uh, usually. And, and there were some good ones. I remember a few years ago seeing a fairly bipartisan group, uh, posting a, a justice bill. And then there have been some that have been really bad. Were there any bills this year that didn't get passed that had you pretty worried? Speaker 0 00:20:41 Yeah, there was a bill, I don't remember the bill number, but it was a bill that required juvenile detention, um, in a lot of cases. And juvenile justice ispo, the whole system is designed for rehabilitation and treatment. Um, and a bill requiring detention kind of throws that out the door. And it also, juvenile judges are, are, are specialized and, um, they have to consider the best interest of the child and, and requiring detention in cases certainly takes away their ability to do that. Um, and so I was worried about that Bill and I, I think that we might continue to see bills like that, that, you know, it, I think it was stopped by Whitney Westerfield, um, in the Senate. But, um, anytime there's any kind of rise in juvenile crime or, um, there a shooting happens or something like that, um, we, we see these new bills requiring detention and enhance penalties and things like that. Um, it, it's just really unfortunate to me because just seven years ago we passed comprehensive juvenile justice reform legislation and, and it seems like we're, we're trying to go backwards from that a little bit. But luckily that Bill was stopped, um, in the Senate. Speaker 3 00:22:05 I think that now that you mentioned Westerfield, I want to say that that was the bill that got moved out of his committee and he was so upset about it being moved out of his committee that he went and testified against it. Speaker 0 00:22:19 Yeah, I think that's right. Speaker 3 00:22:22 Wow. Speaker 0 00:22:23 He has, you know, he has, he has supported bills that I disagree with. Um, I'm not so sure about the, the facial recognition bill. And he voted for the, the gang enhancement bill a few years ago. Um, but he also has been an ally, um, for criminal justice reform in a lot of cases. And, um, he sponsored another, he was a co-sponsor of a good bill, um, that creates like a behavioral health conditional dismissal pilot program. Um, he was the sponsor of that juvenile reform legislation in 2015. And so he's definitely been an ally, um, for criminal justice reform, even though there are some instances where, um, he's taken votes that I disagree with that seem a little bit contradictory to his other positions on criminal justice. Speaker 3 00:23:18 Yeah. Um, if it's the one I'm thinking about, it's House Bill three 18 and it passed the house, went to the Senate to judiciary, which I'm pretty sure is his committee. Speaker 0 00:23:29 It is Speaker 3 00:23:30 Mm-hmm. <affirmative> and was taken from them and given to Health and Welfare. Yeah. Yeah. Okay. So that's that one. Fun and games in Frankfurt <laugh>. Um, okay. So I've got two more that I wanna ask about. And they both, the reason reason I wanna ask about them is that it seemed to me like there was a story behind them, and I wondered if you knew the story. So this unauthorized practice of law, HB 2 56, was that aimed at somebody in particular as far as, you know, Speaker 0 00:24:00 I have seen stories, um, that it, there was a Courier Journal article, um, that suggested that that bill might be aimed at a man named Eric Dieters, who was a northern Kentucky attorney who was suspended by the Kentucky Bar Association. And he's continued to have a practice, but says that he's a paralegal in the practice, but he's also, um, been caught making comments like he'll never stop practicing law and, and things to that effect. And so many people suspect that this law might be in response <laugh> to, to comments like that, that he's made and, and things that he's done in cases. Um, and so this bill raises the, the punishment for unauthorized practice of law, um, from a misdemeanor punishable by up to 90 days to, um, now up to 12 months. And then a subsequent offense would be a felony. Right. Um, yeah. So I don't, I don't know personally, um, that that's why they passed the law, but the, the Courier Journal had an article about that when the bill was filed. Speaker 3 00:25:17 Yeah. I I think that's, um, very possible. And the last one, let me see, let me get back to my list. Okay. The, the last, which I just, again, people were all worked up about this and I had no idea why HB 2 39 powers of constables. Why were people so excited about constables? Any idea? Speaker 0 00:25:39 I don't know. Um, the reason behind this bill, so it's sponsored by Adam Kanig, um, so he's, he's in northern Kentucky, um, but it does have some co-sponsors from Louisville, including Joanie Jenkins, Al Gentry, Charles Miller. Um, but I don't, but I don't know any kind of story behind why this bill was filed. Speaker 3 00:26:07 I just found it so exciting that, that, you know, people were just all upset, um, about constables, but, you know, maybe there's a constable or two or three or four or five that have exceeded their statutory powers and got people upset. Speaker 0 00:26:27 Yeah. So what what the bill does is it, I think prevents them from exercising general police powers it, you know, except in circumstances, um, and things like that and, and makes changes to their training. But I don't, I don't know what happened to, to spark this bill. Speaker 3 00:26:51 Yeah. I'm looking at the bill now and, and, uh, I just feel like I'll have to ask a couple of people Okay. What was the deal behind the constable's bill? So we've covered the main ones we wanted to talk about. Is there anything else that you would like to, any other bill or anything about the legislature this year that you would like to discuss or share? Speaker 0 00:27:13 Well, I think the last bill is, is a good bill, um, that I, I just mentioned a minute ago, which was a bill sponsored by Whitney Westerfield, Robert Stivers and Brandon Storm in the Senate, um, that it creates a conditional dismissal pilot program. Oh, yeah. Um, it, so it's a pilot program, um, for mental health or substance abuse disorders. And right now it, it's going to be a 10 county, four year pilot program. And the chief justice of the Kentucky Supreme Court will choose the counties, the counties that participate, have to have things like medication assisted treatment options and vocational programs, um, that the participants could participate in. Um, and it's gonna be that the people eligible are people charged with misdemeanors, um, but not including like domestic violence or DUIs are excluded, um, for some reason. Um, and then nonviolent non, um, sex offense, class D felonies. Speaker 0 00:28:22 Um, and so it, it is, it's going to be used for a limited number of people in a limited type of charge. And, um, the eligible people can't even have a prior non classifying offense, so that will exclude a lot of people as well. So I do wish it was a little more expansive. Um, but I do think this is a good thing to have a conditional dismissal program. If they meet the program requirements, their charges will be dismissed at the end. Um, and they're going to be collecting data during this four year pilot. And so, um, trying new things that are alternative to detention is always good. Um, I do wish it was a little more expansive because people charge with misdemeanors, um, and non-violent offenses often have their charges diverted or dismissed. And so if it, if it encompassed, um, more offenses, I think we, we could see a little bit more about, um, how different types of treatment might help other types of offenders. Um, but I do think overall this is a good bill and I'm excited to see what will come from a behavioral health dismissal program. Speaker 3 00:29:34 Yeah. Uh, again, I've got, I've called up the bill and I'm looking at it, and it's a four year pilot, uh, and they made, they gave money for it, you know? Mm-hmm. They put out money to support it, including providing for telehealth services Yes. In county jails, which Wow. That's great. Speaker 0 00:29:51 Yeah. Yeah. This is a, like a 32 page bill that it, it's all, you know, I think this is gonna happen and they have, um, protocols and procedures for how it's gonna be implemented. Um, so I hope, you know, and we're gonna collect the data from it. Um, so hopefully this will be a really good thing. Speaker 3 00:30:12 Yeah. And if you look at the votes, uh, we talk about ranker and division in our government, but this one passed the house 91 to three and passed the Senate 35 to one. So that's pretty impressive. Speaker 0 00:30:29 Yeah, it Speaker 3 00:30:30 Definitely, So it's not, it's not all bad news coming outta Frankfurt Speaker 0 00:30:33 <laugh>. No, it's, it's not all bad news. Um, you know, we, we were trending towards having, passing before the Republicans had a super majority. Um, we had passed some pretty big comprehensive criminal justice reforms, um, House Bill 4 63 in 2011, and then a juvenile justice bill in, in 2015. Um, and so we're definitely not doing anything like that anymore. We're seeing a pretty mixed bag of bills that increase incarceration and, and then some that provide alternatives to incarceration. And so I think we've seen the Kentucky Center for Economic Policy analyze the, the criminal justice bills that we've passed, and more of them increase incarceration than decrease incarceration. So, um, maybe not training in a good direction, but there are good bills and good parts of bills that pass this year, Speaker 3 00:31:35 <laugh>. Right, right. I think one of the things that, that, uh, could be behind some of this is the overcrowding of our prisons and jails and the expense that goes with all of that, uh, could be driving some of it. Uh, but, but again, some of it is people is legislators reacting to what they hear when they're home. Speaker 0 00:31:56 Right, exactly. Speaker 3 00:31:57 Which to me feels like the fentanyl thing was, was definitely in that space. Mm-hmm. <affirmative>. All right. Jasmine Smith, one of the stars of my Kentucky podcast and a practicing lawyer who didn't even have to sleep at a Holiday Inn Express to answer all these questions. Thank you so much for your time. Speaker 0 00:32:18 Yeah, you're welcome. Speaker 3 00:32:19 That Speaker 2 00:32:20 Was Jasmine Smith, one of the co-hosts of Myo Kentucky podcast, along with Robert Connie, a Kentucky lawyer, a longtime public defender, and a real insightful guest on the Justice Bills in Frankfurt this year. I really appreciate her taking the time and bringing her expertise to our podcast. And I hope if you do not subscribe to my old Kentucky podcast, I hope you will do that because it is just an excellent podcast. That's all we've got for this week. If you like what we're doing, follow our podcast on Apple Podcast or on the podcast app of your choice. You can also find many podcasts on forward k y.com and check out our latest addition to the Site Election Central. Uh, this is gonna be a place with a lot of election news on it, and there's more to read about that on the site. Thanks for listening, and we'll see you next week.