Legislators on heroin conference committee dive into sentencing differences without reaching agreement

03/19/2015 06:05 PM

FRANKFORT — State lawmakers on a conference committee to address the state’s burgeoning heroin epidemic formally met for the first time on Thursday, spending nearly an hour hashing out differences in how to punish heroin traffickers.

Conferees left the table without an agreement Thursday after poring over the differences between the chambers’ visions of a response to the heroin scourge, and the committee’s co-chairmen floated the possibility of wrapping up work on a bill based on compromises that can be reached by Tuesday, when the General Assembly is scheduled to adjourn sine die.

“I’m certainly open to that discussion and have expressed that privately to those who would listen,” Rep. John Tilley, a Hopkinsville Democrat and co-chairman of the conference committee, told reporters after the conference committee adjourned.

Conversation on sentencing guidelines dwarfed the amount of time spent elsewhere, such as the House’s proposed locally run needle-exchange programs, funding for various treatment programs and differences between the chambers’ Good Samaritan provisions.

Conferees have settled on language currently in Senate Bill 192 on prescribing and dispensing the overdose-reversing drug naloxone, and GOP senators have yet to see how the House’s $10 million proposal for immediate treatment relief in the next fiscal year would be funded.

Sen. Whitney Westerfield proposed a potential sentencing compromise, allowing those caught selling 2 grams or less to be charged with class D felonies unless officers also find drug-dealing paraphernalia like large sums of cash, scales, baggies and “any of these indicators that prosecutors already use to prove their cases anyway.”

In those instances, traffickers would be charged with class C felonies, which are punishable by five to 10 years in prison.

Senators on the committee generally want stiffer penalties against those selling heroin at all levels and, in their version of anti-heroin legislation, recommended raising penalties on traffickers regardless of amount to class C felonies. Representatives on the committee, however, want to retain the current 2-gram threshold for class D felony heroin trafficking and create a new tier of class B felony trafficking in amounts greater than a kilogram.

Westerfield, a Hopkinsville Republican and chairman of the Senate Judiciary Committee, is unsure whether his proposal will break the current logjam in negotiations on SB 192.

“If they’re concerned about prosecutorial discretion being abused, then we need to investigate whether or not even what I’ve proposed still allows for the abuse to happen,” Westerfield said. “I think it (his suggestion) creates some of the restrictions on the discretion that the House members are wanting but still gives the prosecutor the power to capture the bad guys we need to capture.

“I don’t know if it’ll win the day or not, but I’m trying. And if it doesn’t work, I’ll try plan D. I’ll do whatever I can.”

Senators cautioned that they are not suggesting locking up addicts alongside high-volume dealers, but Kentucky’s sentences for heroin trafficking need to keep criminal entrepreneurs from opening shop in the state. They believe ratcheting up penalties and requiring those convicted of dealing heroin serve at least half their sentences before release will provide a deterrent.

But the House remains resolute in maintaining the current 2-gram limit. Tilley said representatives will review Westerfield’s proposal, but he gave no indication of its chances.

“It’s a different way of looking at things certainly, and it’s going to take some thought,” he said of Westerfield’s recommendation. “Again, our position has always been that we have tough laws on the books now.”

Some on the panel disagreed with Tilley’s assessment.

Lawmakers set the 2-gram threshold as part of criminal justice reforms in 2011, but while drug crimes as a whole have decreased since then, heroin abuse has continued to climb, Senate President Robert Stivers said.

The Manchester Republican likened amending heroin trafficking provisions in penal reforms to tweaking prescription drug laws and regulations in the aftermath of 2012’s “pill mill” bill.

“We changed the model,” said Stivers, a co-chairman of the conference committee. “That’s where I think you’re seeing in certain areas what we did in (criminal justice reform) was effective, but in other areas it’s kind of like we squeezed the balloon and it popped out somewhere else, and this is where it popped out in heroin.”

Sen. Chris McDaniel, R-Taylor Mill, said northern Kentucky communities have seen a spike in thefts and burglaries as heroin addicts look for quick cash to feed their habits.

“Look at the commonwealth’s attorney’s reports that come out of (Kenton County Commonwealth’s Attorney) Rob Sanders’ office every week,” McDaniel said. “The number of people who are dealing with peripheral crimes to a heroin addiction because they’re ripping off air conditioners, they’re going into subdivisions and stealing metal, they’re ripping off tool trucks in small tools and then selling them at pawnshops.

“I mean, this is not a hypothetical. This is the thing that we in northern Kentucky are dealing with every single day.”

Still others, such as Rep. Denny Butler, D-Louisville, and Rep. David Floyd, R-Bardstown, contended that the state has significant trafficking penalties already in place.

Tilley harkened back to a conference call that included Beau Kilmer, co-director of the RAND Drug Policy Research Center, and other drug policy experts.

When asked whether strict penalties work in curbing abuse and crime, an individual on the call “stammered and stuttered and said, ‘Not at all,’” said Tilley, chairman of the House Judiciary Committee.

“Heroin has sadly saturated northern Kentucky,” he said. “We don’t question that, and Louisville to a certain extent as well. The rest of the state, not yet. He said there’s still hope for Kentucky. The hope doesn’t lie in increased penalties — what he said was the hope lies in specialized interdiction.

“… The demand is there; the supply will meet it eventually. But if you continually interrupt it by going after the true kingpins and you can actually get that done, then you have hope.”

If House conferees see evidence that stiffer trafficking penalties will help battle the heroin epidemic, Tilley said they will “sign off on a bill today.”

“I just don’t have any credible evidence to suggest they do,” he said.

The committee’s next meeting date has not been announced.


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