Change from 1000 yards to 1000 feet from school became effective on March 23, 2011 under HB 121

The change comes in the first section of KRS 218A.1411 (see below).   This change was also made as part of the new “Penal Code Reform” (HB 467) but the difference is that HB 121 has an emergency provision, meaning it became effective on 3/23/11 (the date it was signed).  The Penal Code reform would not become effective until 6/8/11. 

This means that:
(a)    Offenses committed after 3/23/11 are only subject to enhancement if they were committed within 1000 feet of a school, without question; and
(b)    Offenses committed before 3/23/11 are subject to KRS 446.110, which provides that where a new bill mitigates a penalty, the defendant can opt for the penalty in the new bill.  Since KRS 218A.1411 is a penalty provision, I would argue that 446.110 applies to the that provision.  If that is the case any offense for which final judgment has not been entered should only be enhanced under that provision if the transaction occurred within 1000 feet of a school, rather than 1000 yards.

Section 8.   KRS 218A.1411 is amended to read as follows:
(1)      Any person who unlawfully traffics in a controlled substance classified in Schedules I, II, III, IV or V, or a controlled substance analogue in any building used primarily for classroom instruction in a school or on any premises located within one thousand (1,000) feet[yards] of any school building used primarily for classroom instruction shall be guilty of a Class D felony, unless a more severe penalty is set forth in this chapter, in which case the higher penalty shall apply. The measurement shall be taken in a straight line from the nearest wall of the school to the place of violation.
(2)      The provisions of subsection (1) of this section shall not apply to any misdemeanor offense relating to naphthylprovalerone, 3,4-methylenedioxypyrovalerone, 3,4-methylenedioxymethylcathinone, 4-methylmethcathinone, synthetic cannabinoid agonists,[ or] piperazines, or salvia.

Contributed by Kristen Bailey and Tim Arnold

States Rethink Drug Laws - Wall Street Journal

Treatment Gains Favor Over Long Prison Terms; a New Look at Rehabilitation

A growing number of states are renouncing some of the long prison sentences that have been a hallmark of the war on drugs and instead focusing on treatment, which once-skeptical lawmakers now say is proven to be less expensive and more effective.

Kentucky on Thursday became the latest to make the shift when Gov. Steve Beshear signed into law a measure increasing spending on rehabilitation programs and intensive drug testing. The law also reduces penalties for many drug offenses and may allow some traffickers and users of smaller amounts of drugs to avoid prison.

Sweeping Penal Code Bill Signed into Law

Beshear signs into law sweeping bill to overhaul criminal code

Gov. Steve Beshear signed into law Thursday a broad overhaul of Kentucky’s criminal code, saying House Bill 463 “helps us be tough on crime, while being smart on crime."

The legislation changes Kentucky drug laws by reducing prison time for low-risk, non-violent drug offenders who possess small amounts of illegal drugs.

It then reinvests the savings from the reduced prison costs into drug treatment opportunities for offenders who need help.

The full text can be found here

Watch this blog for summaries and analysis in the coming months. 

"Do you know Sarah Johnson?" DPA Social Worker profiled by The Morehead News

Addiction costs state millions of dollars - The Morehead News

If you talk to the district and circuit court judges, the commonwealth or county attorney or the jailer about treatment options for addicts, they’ll invariably all ask the same question: “Do you know Sarah Johnson?”

    Her name has become synonymous with genuine, and professional, advocacy for people in legal trouble because of crimes committed in addiction.

    The master clinical social worker at the Kentucky Department of Public Advocacy—the public defender’s office—is well known for thorough and personalized work to find treatment options for indigent clients.

    The DPA social worker program came about as a means to lessen the taxpayer burden of overcrowded prisons and jails, according to an agency report. Johnson is one of 12 social workers throughout the Commonwealth that work in the DPA offices to assess and refer clients to appropriate treatment options.

    “Our role is to work as an agent of the attorney to assess cases where there’s apparent mental health and substance abuse and when the attorney feels a person would benefit more from treatment than incarceration,” Johnson said.

    According to a 2008 report, the social worker program has proven cost-savings. Kentucky saved $3.25 for every $1 invested in the social workers’ salaries.

    More than 10,000 days of incarceration were saved as social workers worked with the public defenders, prosecuting attorneys and judges to divert clients into long term residential treatment, outpatient treatment and other community treatment alternatives.

    While Johnson is concerned with the economic cost savings, she is also concerned with helping people recover their lives from addiction.

    “I really care about my clients and advocate for them to find the appropriate programs,” Johnson said.

    “My education and training has prepared me to find individualized options for people, each of whom are unique and valuable. All addicts are not the same,” she added.

    Usually, Johnson first encounters defendants when they are in jail. She goes to them and conducts an assessment and works with them to identify the most appropriate options for resolving legal problems and for helping them move into recovery.

    She then works with the public defender, the prosecuting attorney and the judge to recommend the best options. Oftentimes, residential or outpatient treatment is recommended for defendants with drug-related offenses.

    Johnson said she doesn’t stop at the recommendation, however.

    “I help our clients through the process. I don’t set treatment up for people. I give them options and work with them to make a good decision,” she said.

    “If they are comfortable with me talking to families, I do. There are many needs beyond just getting a person into treatment,” she added.

    Johnson said the success of the DPA social worker program goes far beyond reducing the jail and prison population.

    “My clients are people who suffer from addiction and because they suffer they committed a criminal offense.

    “If we invest in them and allow them to make something of themselves, I believe they can,” she said.

Kentucky Penal Code Reform Bill Filed

Newspaper coverage of the bill

Louisville Courier Journal  Bills aim to cut prison costs, improve drug treatment

Lexington Herald Leader Kentucky drug laws would change under new proposal

Below is a summary of the bill by former Public Advocate Ernie Lewis ( caveat - I have been reviewing numerous drafts, and could easily have made a mistake in the summary. If you have a question about a provision, please go online to read the entire bill.) HB 463 and SB 161

There are several very progressive reforms undertaken in this legislation, including the following:

  • Establishes quantities for trafficking in controlled substances.
  • Changes the 1000 yards to 1000 feet in 218A.141.
  • Eliminates the enhancer for possessory drug offenses. 
  • Lowers penalties for trafficking 2nd, creating a mini-Class D for first offenses.
  • Lowers penalties for trafficking 3rd.
  • Lowers penalties for possession 1st to a mini-Class D.
  • Creates deferred prosecution as a preferred alternative for possession 1st cases and 2nd, with presumptive probation as the other alternative.   Presumptive probation is required for second offenses unless the person is ineligible.
  • Marijuana possession is a Class B misdemeanor punishable by 1-45 days.
  • Significant changes are made to pretrial release.  For example, if presumptive probation is the possible sentence, the court must release the defendant on an OR or unsecured bond unless written findings are made.
  • Deferred prosecutions are created similar to pretrial diversion.
  • Evidence based practices, including the use of risk and needs assessments, permeate the bill.  This is especially so for probation and parole. 
  • Changes are made to eliminate double enhancements.  Possession cannot be PFO'd, although it can be used as a prior.
  • Citations will be required for all Class B misdemeanors and most Class A misdemeanors. 
  • Pretrial release is changed significantly.  If a person is indigent he must be released on an OR or unsecured bond unless he is not a flight risk, a danger to himself or others, or unlikely to appear for trial. 
  • A system of graduated sanctions is created for persons on probation and parole whereby revocations won't have to take place.  Probation and Parole will also have an administrative caseload with lesser supervision and an early means of termination for persons on probation. 

Early reporting on KY Task Force on Penal Code proposal

Kentucky drug laws would change under proposal   John Cheeves Bluegrass Politics Blog

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

The Task Force on the Penal Code and Controlled Substances Act is meeting to discuss and sometimes debate a draft of its final proposal for the 2011 General Assembly, which resumes Feb. 1.

The 100-page bill would rewrite many of Kentucky’s criminal laws, especially those concerning illegal drugs.

It would establish a penalty of “presumptive probation” for some lesser offenses, such as drug possession, that would require judges to sentence defendants to probation unless they could give a compelling reason why the defendants could not safely be supervised in the community. It also would require up to a year of addiction treatment for people convicted of drug possession.

Marijuana possession would be reduced from a Class A misdemeanor, which brings 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 bill would fine-tune drug-trafficking laws so that people caught selling larger volumes of drugs would face tougher penalties than those selling two to four ounces or less, depending on the type of drug.

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.

At the same time, the proposal would create a new Class A felony — the most serious level of crime, other than a capital offense — for people convicted of “commercial drug trafficking.” That charge would be possible if someone had an illegal drug in quantities greater than five times necessary to trigger the trafficking statute and if they were guilty of at least five of 10 possible aggravating circumstances, such as possessing $10,000 or more in cash, a gun, a list of customers or drug transactions, or drug-manufacturing paraphernalia.

Task force members said they want stiff prison sentences for high-volume drug dealers but not necessarily for addicts whose only crime is personal possession. One-fourth of Kentucky’s nearly 21,000 inmates are being held for drug offenses.

The task force includes the chairmen of the House and Senate judiciary committees, a former prosecutor, a defense lawyer, the secretary of the Justice and Public Safety Cabinet and Kentucky’s chief justice. It will present the draft bill on Wednesday to the legislature’s Joint Interim Committee on the Judiciary.

Tom Handy and Guthrie True on the need for penal code reform in Kentucky

Kentucky needs to control rising cost of corrections - Lexington  Herald-Leader

The article concludes with: 

And so you find a prosecutor and defense attorney coming together — with legislators, state and local officials and the chief justice of the Kentucky Supreme Court — in an effort to chart a course that will make a positive difference. The task force plans to issue its recommendations to the state legislature in January and the focus will be clear: getting Kentuckians a better return on their public safety dollars through policy options that protect public safety and hold offenders accountable, while controlling corrections costs.

Discussion on Penal Code Reform tonight on KET

On the Monday, Dec. 20 edition of “Kentucky Tonight” at 8 p.m. ET on KET1 and at www.ket.org/live, host Bill Goodman and guests will discuss the state’s penal code.

Scheduled guests are state Sen. Tom Jensen, R-London, chiar of the Senate Judiciary Committee and co-chair of the 2010 Task Force on the Penal Code and Controlled Substances Act; state Rep. John Tilley, D-Hopkinsville, chair of the House Judiciary Committee and co-chair of the 2010 Task Force on the Penal Code and Controlled Substances Act; state Justice and Public Safety Secretary Michael Brown and Kentucky Supreme Court Chief Justice John Minton.