The House is expected to vote on House Bill (HB) 5 today with a floor amendment from its primary sponsor. Rather than make the bill less harsh, nearly all of the proposed changes in House Floor Amendment (HFA) 27 will cause even more harm and expense than the original version of the bill, while setting the state back on public safety goals.
HFA 27 greatly expands what qualifies as a violent offense, which will lengthen sentences even more than the original version of the bill
Under current Kentucky law, offenses classified as “violent” are listed in the violent offender statute. Typically, these offenses require someone to serve at least 85% of their sentence before being released on parole. HFA 27 seeks to greatly expand our already-broad violent offender statute by adding:
- Any attempt to commit any crime listed in the violent offender statute;
- Burglary in the first degree if a person other than the offender is present in the building at the time of the offense. (There is no requirement that the person be harmed.);
- Robbery in the second degree;
- Strangulation in the first degree;
- Arson in the first degree.
The amendment also appears to greatly expand the number of people who will be required to serve 85% of their sentences to include a broad array of less serious Class C and D offenses.
This expansion of “violent offenses” — and therefore harsher sentences — is vast, and will undoubtedly result in more Kentuckians being incarcerated, and for much longer.
Research consistently shows that these harsher sentences don’t deter crime and can even make communities less safe and have a huge fiscal impact. As noted in the corrections impact statement for HB 5, the bill originally had 37 provisions that would increase costs to state and local governments. For instance, increasing parole eligibility from 20% to 85% for a Class B felony costs over $400,000 per person. For a Class C felony that cost would be over $275,000 per person. And HFA 27 adds even more such provisions, so a new corrections impact statement for the bill, which includes the changes in HFA 27, would be expected to detail costs over and above those in the original version of HB 5.
HFA 27 also stiffens penalties when guns are even present during an offense, which lengthens sentences
The floor amendment stiffens penalties for anyone charged with a crime while unlawfully in possession of a firearm. Unlike the original HB 5 language, the amendment does not require that the firearm be used or at all related to the underlying offense. This will apply, for example, in cases where someone possesses a firearm while being a convicted felon or when the firearm is stolen. Mere illegal possession would bar someone from probation and any form of early release.
HFA 27’s proposed changes to make HB 5 less harsh are minimal, so on the whole the amendment makes the bill more harmful
A couple of changes included in HFA 27 would somewhat diminish the harms compared to the version that passed out of committee; however, overall, the changes do not mitigate the increased harm that will be caused by the rest of the bill as amended.
‘Drug-induced homicide’ provision slightly weakened
The “drug-induced homicide” provisions have been slightly weakened, so as to not allow a charge of murder when someone sells fentanyl to another person and that person dies from consuming it. However, HFA 27 still allows for the charge of manslaughter in the first degree for such activity.
A person who distributes the substance without payment can be charged with manslaughter in the second degree – the charge for this in the original bill was manslaughter in the first degree. A concern uplifted by many advocates, and a pattern seen in other states, is that other users, and friends of overdose victims are often the people charged under “drug-induced homicide” laws for simply sharing the substance when no money is exchanged.
HFA 27 also adds suspected overdoses involving fentanyl or fentanyl derivatives to protections in the state’s drug overdose “Good Samaritan” law, which provides immunity from prosecution for certain offenses when a person calls for help when someone overdoses. However, current protections under this statute actually are not very strong and need to be strengthened (as well as expanded to more offenses) so that people will not be afraid to call the police for lifesaving medical treatment.
Continues to criminalize homelessness but allows “street camping” in a vehicle under certain circumstances
With regard to the harmful housing provisions proposed by HB 5, HFA 27 creates a carveout to exempt unhoused people who are sleeping in their cars from prosecution for “street camping,” provided the car is legally parked in a public area and not there for more than 12 hours.
While this is a positive change given the number of Kentuckians who are forced to use their automobiles for shelter, especially as shelter beds in many areas of the state remain full, the bill will still criminalize those sleeping on the streets in tents, or those in cars that they cannot move every 12 hours. And most unhoused Kentuckians cannot afford to own, maintain and fuel a car.
Allows possibility of civil liability in ‘shopkeeper’s privilege’ instances, and clarifies violation of emergency protective order enhancements
Other positive changes include allowing shopkeepers to be subject to civil liability if they fail to “exercise reasonable care” when detaining someone suspected of shoplifting. However, criminal liability is still off the table, and the question of what is reasonable in a civil case is up to a judge or jury, and litigation is costly.
Additionally, HB 5’s enhanced penalties related to subsequent violation of emergency protective orders have been narrowed to only apply to a second or subsequent violation within a five-year period that is an “intentional, in person” violation. This would disqualify sending or responding to a text message, for example, a concern raised when the bill was heard in committee last week.
The House should reject HB 5 in its entirety, including HFA 27
On the whole, the proposed changes in HFA 27 make HB 5 even more harmful than the version of the bill that passed committee last week. And HFA 27 makes the bill even more financially costly to the state and local governments, further squeezing out much-needed funding for solutions that actually do make communities safer.
