Last week, the House passed House Bill (HB) 5, a sprawling collection of tried-and-failed policies that will increase incarceration, hardship and the risk of fatal overdose in Kentucky. Prior to passage, a successful floor amendment brought by the primary sponsor increased the harm and the cost of the legislation, despite minor improvements. As it moves to the Senate, HB 5 remains a troubling bill that would make our communities less safe. It will also require significant additional appropriations to the Department of Corrections and local jails to cover the increased costs of incarcerating many more people – money that could instead be used to invest in approaches that actually make communities safer.
As HB 5 heads to the Senate for consideration, here’s what the latest version of the bill does:
Increases criminal penalties for fentanyl in numerous ways
Kentucky’s drug laws are already very harsh, and since 2011, legislators have increased criminal penalties – specifically for fentanyl and its derivatives – several times (Senate Bill (SB) 192 in 2015, HB 333 in 2017, HB 215 in 2022).
Under current law, the transfer of any quantity of carfentanil, fentanyl or a fentanyl derivative meets the definition of trafficking in the first degree, which is a Class C felony with a sentence of five to 10 years for the first offense and a Class B felony with a sentence of 10 to 20 years for the second offense. The legal definition of drug trafficking in Kentucky also doesn’t require that drugs be sold, which means that people who use drugs and share them with others, with no intent to sell for a profit, can be charged with trafficking.
In addition, since 2019 (HB 470) a person can be charged with manslaughter in the second degree, a Class C felony with a five-to-10-year sentence for “unlawful distribution” of certain drugs, when the consumption of that drug results in someone’s death.
HB 5 goes far beyond these existing harsh penalties for fentanyl and fentanyl derivatives. While the newest version of the bill no longer includes the possibility of someone being charged with murder for knowingly selling fentanyl that results in someone’s death, it still subjects a person to the following possible charges:
- Manslaughter in the first degree (a Class B felony) if they knowingly sell fentanyl or a fentanyl derivative to another person where payment is involved, and then the person’s consumption of it causes them to die.
- Manslaughter in the second degree (a Class C felony), if they knowingly distribute fentanyl or a fentanyl derivative to another person without payment and the person’s consumption of it causes them to die. This provision applies to people sharing drugs. Trafficking at one level higher than the level otherwise specified in statute for any quantity of fentanyl or fentanyl derivative if it results in a person’s death – so a Class C felony for a first offense becomes a Class B, and a Class B felony for a second offense becomes a Class A. Notably, this charge can be applied whether the person “trafficking” the substance does so knowingly or not, and the person who dies does not have to be the person directly receiving the drug in the exchange; and Kentucky’s definition of “trafficking” is incredibly broad.
- A Class B felony (which carries a sentence of 10 to 20 years) for promoting contraband in the first degree in a detention facility or penitentiary if the contraband is fentanyl, carfentanil or a fentanyl derivative. Currently promoting contraband is a Class D felony (subject to a one-to-five-year-sentence) for all “dangerous contraband” (including fentanyl, a derivative and carfentanil). Promoting contraband is defined in statute (KRS 520.050) as when a person “knowingly introduces dangerous contraband into a detention facility or a penitentiary or is a person confined in a detention facility or a penitentiary who knowingly makes, obtains, or possesses dangerous contraband.” The violent offender statute is also amended to include this offense.
Criminalizes Kentuckians for being poor and unhoused
Several provisions of HB 5 target poor Kentuckians. Rather than addressing the root causes of the state’s high poverty rates, the bill proposes new criminal penalties.
Restricts where unhoused people can sleep
Despite a dire shortage of available, affordable housing in Kentucky, HB 5 seeks to address the state’s homelessness problem with new criminal penalties.
HB 5 creates a new offense of “unlawful camping,” making sleeping outside in a public area illegal. The penalty for “unlawful camping” is a violation for the first offense (subject to a fine of up to $250) and a Class B misdemeanor for the second and each subsequent offense (which carries a maximum punishment of 90 days in jail and fines of up to $250). If the person refuses to stop their “unlawful camping” during the first offense, they could be charged with a Class B misdemeanor. Localities cannot develop a policy or practice that “directly or indirectly prohibits or discourages” the law’s enforcement. The bill provides that local governments can designate areas for temporary camping for unhoused people that contain potable water and adequate sanitary facilities, but not all counties have existing shelters or the financial resources to invest in them.
This version of the bill does carve out a “street camping” exception for those sleeping in their cars for less than 12 hours, provided the car is legally parked.
The bill also amends KRS 503.080 (related to the justifiable use of physical force) to add instances when a person who owns or leases property where “unlawful camping” is occurring, and the person engaged in the act has been told to cease and has used force or threatened to use force against the property owner/lessor. These provisions were added despite the recourse in existing law when someone is unlawfully occupying a property.
Adds new income inequities to criminal legal system with limits on charitable bail organizations
On any given day there are over 21,000 Kentuckians in jail, more than 50% of whom have not been convicted of any crime, but are detained simply because they cannot afford to post bail. While awaiting their day in court behind bars, many will lose employment, custody of their children, housing and other aspects of their life on the outside. Given the prevalence of pretrial detention, and since most of Kentucky’s jails are chronically over capacity, charitable bail organizations emerged in Kentucky in recent years. These groups use pools of donated money and varying criteria to post bail for qualifying candidates who could otherwise not afford the amount needed to be released. The organizations often also aid in finding housing and connection to services. When clients return to court, which one organization that posted over 4,200 bonds found happened 91% of the time, the organization gets the money back and can use it to help others.
HB 5 imposes the following restrictions and requirements on charitable bail organizations:
- It would be unlawful to post or furnish funds for any bond of any nature (cash, surety, property) of $5,000 or more.
- It would be unlawful to post bond for anyone accused of a domestic violence offense, a dating violence offense, who is a violent offender as defined by statute, or anyone held under a civil court order or warrant for involuntary treatment for substance use disorder.
- It requires that anyone posting a bond on behalf of the organization provide a photo ID.
- It requires that the organization annually report records, including expenditures and the offenses for which bail has been provided, to the Interim Joint Committee on Judiciary. Organizations must also make this information available to the public.
- Any bond forfeited shall be given to the victim of the underlying offense if one is identified.
If bail is required, law requires it be set at a level that the person required to pay can afford and that it not be used as a means of punishment or to keep someone in jail pretrial. The purpose of bail is to allow people charged with a crime to go on with their lives while providing some assurance that they will show up for court hearings. Not allowing community organizations to post bail based solely on the charges or the amount set by a judge undermines the presumption of innocence. It also exacerbates the harms of our existing two-tiered system of justice where two individuals who are charged with the same crime, with one having resources and the other not, are treated differently. The person with resources can pay bail and be released, while the person without resources cannot.
Charitable bail funds help to reduce this disparity by helping those whose loved ones cannot come up with $5,000 or more to secure their pretrial freedom. Charitable bail organizations are in many ways a “band aid” on a larger systemic problem with the state’s bail system. By limiting their function, but doing nothing to make the pretrial process better, HB 5 only increases inequity.
Creates counterproductive criminal penalties for parents of children involved in the juvenile justice system
HB 5 creates new penalties for parents or guardians with children in juvenile court proceedings. It requires at least one parent or guardian to attend court with the child, and if they fail to do so, become subject to a fine of up to $500 and up to 40 hours of community service.
While the intent of this provision is likely to ensure adults are involved and accountable for their children, it is unnecessary and misinformed. Judges already have contempt power and can order parents to attend court appearances and hold them accountable if they do not. Moreover, some courts across the state already will not proceed with substantive action in juvenile cases unless an adult is present. Finally, court occurs during the workday, and most children involved in the juvenile system are from low-income families. This law would unfairly burden parents who are likely working hourly-wage jobs with limited or no paid time off or facing transportation limitations. The last thing a family already in crisis needs is a fine and a work weeks’ worth of community service hanging over its head, so the discretion to decide whether a parent is ordered to attend should be left with the court.
Creates harsher penalties for violent crime that do not make us safer and are not an appropriate response to current conditions
Despite research consistently showing that longer sentences do not lead to less violent crime, and heightened severity of punishment not being an effective deterrent, HB 5 greatly expands Kentucky’s already-broad violent offender statute and increases penalties for many existing crimes.
Includes vast expansion of Kentucky’s already-broad violent offender statute and enhanced penalties for many other offenses
Expansion of the violent offender statute will keep more Kentuckians behind bars for longer. Typically, when someone is convicted of a violent offense, that person is not eligible for early release on parole until they have served at least 85% of their total sentence, compared to just 15%, 20% or 50% for other offenses. People convicted of violent offenses are not eligible for probation.
HB 5 adds the following offenses to the violent offender statute:
- Any attempt to commit an offense listed in the violent offender statute.
- Carjacking: HB 5 creates a new criminal offense for “carjacking,” in a separate section of the bill, despite the same conduct already being prosecuted as robbery and/or kidnapping. Carjacking would be a Class B felony, carrying 10 to 20 years in prison.
- Burglary in the first degree: This offense would apply if a person other than the offender is present in the building at the time of the offense, with no requirement that the person be harmed. Burglary in the first degree is a Class B felony, carrying 10 to 20 years in prison.
- Robbery in the second degree: A Class C felony carrying 5 to 10 years in prison.
- Strangulation in the first degree: A Class C felony carrying 5 to 10 years in prison.
- Arson in the first degree: A Class A felony carrying 20 to 50 years or life in prison.
- Wanton endangerment in the first degree involving the discharge of a firearm. HB 5 increases the penalty from a Class D felony (one to five years) to a Class C felony (five to 10) years if the person discharges a firearm. This provision is aimed at drive-by-shootings.
- Promoting contraband in the first degree, as mentioned above.
The bill also greatly expands the number of people who will be required to serve 85% of their sentences by including any person convicted as a violent offender regardless of the offense class. (Existing law requires people convicted of A or B felonies as violent offenders to serve 85% of their sentences.)
In addition to expanding the violent offender statute, HB 5 enhances the penalty for the following offenses:
- Murder of a first responder: Expands Kentucky’s death penalty eligibility to include murder when the victim is a first responder who was killed in the line of duty. Currently, someone is only eligible for the death penalty in Kentucky under very specific circumstances — conviction for murder plus a specific list of aggravating circumstances. Kentucky has not executed someone on death row since 2008, and polls show most Kentuckians oppose capital punishment.
- Crimes where a gun is possessed illegally: Removes the opportunity for probation or any form of early release for an individual who was convicted of an offense, regardless of the underlying offense, if they were in possession of a firearm at that time and were a convicted felon, were on some form of supervised release, or they knew or should have known the firearm was stolen. There is no requirement that the gun be used in the commission of the offense, or that the gun was at all related to the underlying offense.
- Fleeing from police in a motor vehicle: Requires someone to serve at least 50% of their sentence to be eligible for parole (up from 25% under current law) and increases the penalty from a Class D felony (one to five years) to a Class C felony (five to 10 years).
Existing penalties for these offenses are already severe and making them more severe is unlikely to deter future crime. Instead, more Kentuckians will be involved in the carceral system for longer, face the lifelong consequences of being branded as violent, felony offenders, and will struggle to reintegrate into society upon release.
Antiquated “three strikes” provision is historically ineffective and redundant
The bill also contains a “three strikes” provision that provides that anyone convicted of three violent offenses be sentenced to life without the possibility of parole or the death penalty (if the third offense is one eligible for the death penalty).
Three strikes laws are not new. They have a long, messy history at both the federal and state level going back to their origin in the early 1990s, when they were enacted to target “repeat offenders” at a time when public fear of crime was high. To date, 28 states have enacted some sort of three strikes law, although the mandatory sentencing rules can differ from state to state. Research shows that three strikes laws are an ineffective way of deterring crime, incredibly expensive to implement, remove sentencing discretion from the judicial system and disproportionately impact people of color.
The creation of a three strikes provision is also unnecessary given that Kentucky already has laws that enhance consequences for people who stand convicted of multiple felonies. Unlike existing persistent felony offender laws, HB 5’s three strikes provision has no time restrictions. For example, a person convicted of two violent offenses in their early 20’s, who lives a crime-free life for decades, and then stands convicted of a violent offense in their 60’s would have no option for sentence leniency.
The implementation of three strikes will undoubtedly increase the number of Kentuckians serving lifelong sentences and require an increase in spending by the state.
Expands felonies, enhances penalties and restricts personal liberties, among other provisions
HB 5 also increases penalties for some non-violent offenses and adds restrictions on personal liberty that are likely to have concerning consequences for Kentuckians.
Lower threshold for felony “vandalism” will move reforms backward, harm presumption of innocence
The bill reduces the amount of damage needed for the charge of criminal mischief, or “vandalism,” to be considered a felony from $1,000 to $500. The change would apply to both public and private property damage. It also allows for the charge to be reduced from a felony to a misdemeanor if the person charged, prior to conviction, repairs, replaces or pays for the damages they are accused of causing. This provision is contrary to the presumption of innocence and is likely to result in otherwise innocent people paying for a crime they did not commit simply to avoid the harm of a felony conviction because doing so will result in a less serious conviction. It is also contrary to action taken by the General Assembly just three years ago when it decreased the felony threshold for a host of other property crimes.
Expands criminal liability for renters
HB 5 expands the definition of criminal mischief to include when a tenant damages property, at any monetary amount. Previously, this only applied to damages over $500. Under HB 5, damages of $500 or less would be a Class A misdemeanor, and damages of $500 or more would be a Class D felony.
Many landlords already require tenants to pay a security deposit to cover potential damage to the property and can pursue a civil action to recover additional damages if needed, so the expansion of criminal penalties is unnecessary, will subject more Kentuckians to criminal charges, and is likely to disproportionately impact people with children and pets.
Dangerous expansion of shopkeeper’s privilege
The bill also expands a legal concept known as “shopkeeper’s privilege” which currently allows employees or business owners to temporarily detain someone who they believe is stealing from their store. The proposed provision expands the privilege to allow use of force to prevent the person from escaping, to prevent the loss of goods for sale, or for the store personnel to protect him or herself. The amendment also provides immunity from criminal liability for the individual using force but does allow civil liability for failure to exercise reasonable care in using the authority granted.
Expanding the “shopkeeper’s privilege” is harmful as the privilege does not require that the shopkeeper be correct about the theft they believe is happening — they simply need to have probable cause. Allowing the use of force to detain someone who may or may not be stealing could result in unnecessary harm to the person. This provision could also increase racial profiling. While the color of someone’s skin does not count as reasonable suspicion, one study by a large retailer found 53% of Black shoppers reported having personally experienced unfair treatment while shopping due to their race.
This expansion is especially unnecessary and problematic given advancements in anti-theft technology and surveillance footage available in many places of business, which assist law enforcement with investigating potential thefts.
Increased penalties for adults charged for crimes with juvenile accomplices likely to harm young people
Another penalty enhancement provides that anyone 18 or older who engages in “criminal conspiracy” with a minor be charged one level higher than the listed level for the underlying offense. For example, if the underlying offense is a C felony (five to 10 years), the adult would be charged with a B felony (10 to 20 years), facing a higher level of consequence and prison time. Criminal conspiracy can be as simple as agreeing with another person to commit a crime or helping someone commit a crime.
While the intention of this provision may be to protect children and deter adults from exploiting children to engage in criminal activity, the impact will likely fall hardest on young people who are newly adults and still socializing with friends who have not yet turned 18.
Bill includes a mix of additional provisions
Other provisions include expanding statutory definitions of harassing communications, increasing penalties for repeated violation of an emergency protective order, and changes to the laws governing auctioning guns that were previously used in homicides. The bill also expands the list of individuals entitled to a personal identification card or driver’s license upon release of custody to include those incarcerated in county jails and regional correctional facilities if funding is available (the law already applies to those released from Department of Corrections facilities or Federal Bureau of Prisons facilities).
Spends a large amount of state and local financial resources on these tried and failed approaches to public safety
The provisions in HB5 will result in significant cost increases for state government as well as counties because of the increase in the number of people incarcerated and the significant lengthening of many sentences, combined with mandatory minimums. And these costs will only snowball over time as the number of people serving mandatory minimums grows each year.
A corrections impact statement (CI) is currently only available for HB 5 as originally filed, and the bill has changed significantly since then with additional new crimes and enhanced penalties included as the bill was passed in committee and on the House floor, all of which will make the bill even more expensive.
As reflected in the CI, the average daily cost of incarceration for A, B, and C felonies is $116.93, and the average cost to incarcerate a person with a felony in a county jail is $44.97 per day. (Note that the daily cost to incarcerate a person in a state prison differs depending on the facility, with a range from $85.41 at the Lee Adjustment Center to $204.16 at the Kentucky State Penitentiary.)
As an example of how much HB 5 will cost, one enhancement included in HB 5 increases the penalty for fleeing or evading in the first degree from a Class D felony to a Class C felony. According to the CI, there are currently 1,581 people serving time on this charge as a Class D felony. A Class D felony sentence (which is served in a county jail) costs between $16,404.05 and $82,070.25 in total. A Class C felony (which could be served in a county jail or a state prison) costs between $213,397.25 to $426,794.50 in total. If all 1,581 people currently serving time for fleeing or evading in the first degree were instead serving a Class C felony as HB 5 requires, the increased cost to the commonwealth would range from $311 million to $545 million just for this one offense – and this isn’t even the costliest enhancement included in the bill. HB 5 also requires all people convicted of felonies that qualify them as violent offenders to serve at least 85% of their sentence (current law requires this of only Class A and B felonies). This enhancement was added as part of the floor amendment and the CI isn’t yet available, but it is anticipated that the cost of this enhancement will be far greater than that reflected above for the crime of fleeing or evading in the first degree.
On the local level, costs will increase as more people sit in jail for longer while awaiting trial, as houseless people are incarcerated for not having a place to live, and as more people overall are arrested and processed through the jails. And our jails are already chronically overcrowded. As of Jan. 18, 2024, 48 of Kentucky’s 74 full-service jails (65%) were at over 100% of capacity, with seven of those at over 150% of capacity. As a state we already incarcerate 40% more people per capita than the rest of the nation.
The Senate should reject harmful proposals in HB 5
Kentucky’s laws related to drugs and for violent offenses are already harsh. State lawmakers have repeatedly turned to increasing criminal penalties over recent decades as a response to their concerns about a range of issues despite their established ineffectiveness at reducing overdose deaths, violence and the state’s housing crisis.
Rather than improving public safety, this bill would have many harmful consequences. It would lead to increased risk of overdose death. It would result in more poor Kentuckians incarcerated pretrial and increasingly entangled in the criminal legal system including for unpaid fines and fees. It would hamper the most effective method for fighting homelessness and lead to increased violence against people who are unhoused. And it would result in longer sentences that crowd out state dollars that could be invested in evidence-based approaches that would make our communities safer.
An effective approach to reducing violence would focus on policies that create safe and healthy communities. Lawmakers should make investments in education, housing, food and other supports people need to thrive. And they should recognize that real public safety comes from addressing root causes rather than continuing to ever more criminalize the symptoms of our decades-long failure to do so.
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