This analysis was originally published on January 10. It was updated on January 22 to reflect the most recent version of House Bill 5.
All Kentuckians should be able to feel safe in their communities. However, rather than actually promoting public safety by focusing on evidence-based methods of preventing crime, House Bill (HB) 5 is a collection of dangerous, tried-and-failed policies that will increase the risk of overdose death, worsen our already globally high incarceration levels, squeeze out funding for investments that actually make our communities safer and further entrench Kentuckians in poverty.
HB 5 passed the House Judiciary committee on January 18th and now heads to the House floor.
Takes a harmful, counterproductive approach to state’s overdose crisis
Reducing drug overdose deaths is an important policy issue that lawmakers and communities across the state care deeply about. Kentucky has among the nation’s highest rates of fatal overdoses, and while they recently declined overall, there was an increase for Black Kentuckians. Fentanyl and other synthetic opioids are the most common drugs involved in overdose deaths, and fentanyl was present in the majority of fatal overdoses in Kentucky in 2022.
There are public health strategies to address the opioid overdose crisis that are evidence-backed, such as those recommended by the Centers for Disease Control and Prevention — including increasing access to harm reduction, drug treatment and other supportive services, and strengthening existing Good Samaritan laws that provide some legal protections for people at the scene of a drug overdose when a call for medical assistance is made. HB 5 instead proposes extreme increases in criminal penalties for fentanyl, an approach that has been shown to fail at reducing overdose deaths, and instead increases the risk of fatal overdose.
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 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-to10-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 other controlled substances. The bill newly subjects a person to the following possible charges:
- Murder (a Class A felony with a sentence of 20 years to life) if they knowingly sell fentanyl or a fentanyl derivative to another person, and the person’s consumption of it causes them to die. Such a provision is often referred to as a “drug-induced homicide” statute.
- Manslaughter in the first degree (a Class B felony) if they knowingly distribute fentanyl or a fentanyl derivative to another person without payment, which includes sharing drugs with others, and then the person’s consumption of it causes them to die.
- Manslaughter in the second degree (a Class C felony), which currently applies to the distribution through sale of a Schedule I or II controlled substance, will apply to any distribution (including sharing) of a Schedule I or II controlled substance that is determined to be the cause of death (excluding fentanyl or a fentanyl derivative, which are subject to harsher penalties, as described above).
- 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.
Will create more harm and reduce public safety rather than saving lives
An analysis by Pew examined “whether and to what degree high rates of drug imprisonment affect the nature and extent of the nation’s drug problems.” According to the researchers, if imprisonment was an effective deterrent to drug use and crime, then states with higher rates of imprisonment for drug offenses would have lower rates of drug use, other things held constant. However, when Pew compared state imprisonment rates for drug offenses with three important measures of state drug problems – self-reported drug use rates (excluding cannabis), drug arrest rates and drug overdose death rates – no statistically significant relationship was found. These results account for variation in states’ education level, unemployment rate, racial diversity and median household income.
In contrast, a recent study found an association between increased drug seizures and an increase in opioid overdose deaths in Marion County, Indiana. Another recent study found a relationship between the enhanced criminalization of fentanyl possession and increased overdose deaths in Colorado.
Research indicates that sentence enhancements for fentanyl like those proposed in HB 5 will disrupt the drug supply in dangerous ways, drive people who use drugs away from health services and make people less likely to call for help when they witness an overdose.
Three years after North Carolina passed its drug-induced homicide law, more than 140 cases were filed, and at the same time, the overdose death rate has risen dramatically – including in the counties that utilized the law the most. Preliminary research on the impact of the law in two rural North Carolina counties suggests there has been a negative impact on public health, including because people may be less likely to call 911 when witnessing an overdose.
And as these drug-induced homicide laws have proliferated nationally, people of color have been charged at higher rates and sentenced more harshly, despite the fact that they are not more likely to use drugs or engage in drug-related crime than white people.
Legislators may want to make our communities safer by holding profiteering drug dealers accountable for the harm they cause, but research also tells us these laws are most likely to impact downstream low-level “dealers,” who are typically also Kentuckians struggling with substance use disorder themselves and many times are friends or family of the person who died from overdose. This misdirected responsibility causes harm to communities that are already grieving. For instance, in New Jersey in 25 out of 32 drug-induced homicide cases that were prosecuted, the person charged was a close friend of the person who died, not a drug dealer.
The dramatic increase in incarceration and related financial costs in Kentucky will also squeeze out funds available for other important investments, including those that actually prevent drug overdose deaths and make us safer. One county in Ohio reportedly spent at least $750,000 per-year just prosecuting drug-induced homicide cases, while overdose deaths in the county continued to rise.
Criminalizes Kentuckians for being poor and unhoused
Several provisions in HB 5 specifically target poor Kentuckians and would result in reduced health, safety and economic security. Rather than addressing the state’s high rates of poverty and homelessness, the bill proposes a number of counterproductive measures.
Restricts where unhoused people can sleep without criminal and/or violent consequences
There is a dire shortage of affordable housing in Kentucky, and on any given night in January there are approximately 4,000 Kentuckians experiencing homelessness, according to annual one-night counts. HB 5 would make it harder for unhoused people to survive safely, exacerbate the state’s housing problems and disrupt local initiatives aimed at addressing both substance use and housing shortages. Not every community has a shelter, and those that do often run out of space.
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 also 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.
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/leasor.
Bars public funds from being spent on proven approach to improve health and economic security
HB 5 prohibits state funds from being used for “any initiatives to provide permanent housing to homeless individuals if those initiatives lack behavioral and rehabilitative requirements,” which at a minimum include that participants: abstain from illicitly using controlled substances and/or excessively using alcohol, consent to treatment of any mental health conditions and refrain from criminal activity.
This proposed policy goes against established best practices grounded in research, and would jeopardize money used to address homelessness and could shut down some existing Kentucky programs. Housing First is a proven model for addressing homelessness that prioritizes providing people, particularly those with psychiatric and substance abuse challenges, with permanent, stable housing and access to other services on a voluntary basis. Once their housing situation is stabilized, people are more likely to be able to take advantage of supportive services related to recovery, employment and more.
Studies show that Housing First programs decrease homelessness; increase housing stability and improve quality of life for people experiencing homelessness; can lead to better treatment outcomes; and have an economic return of $1.44 for every dollar invested in Housing First programs due to health care and other cost savings.
There are successful Housing First programs currently operating in Kentucky that could close, and result in thousands of their residents becoming unhoused if HB 5 is passed. Feed Louisville’s Hotel-to-Housed program adopts a Housing First model. The organization repurposed a former Days Inn to provide temporary safe and stable housing for residents, as well as access to a range of services, while they wait to access permanent housing.
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 the majority 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 provide assistance 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, an offense in the violent offender statute, or 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 it should 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 a bail based solely on the charges or the amount set by a judge, not only undermines the presumption of innocence, but it 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 week’s worth of community service hanging over its head, so the discretion to decide whether or not a parent be ordered to attend should be left with the court.
Harsher penalties for violent crime do not make us safer and are not an appropriate response to current conditions
Research consistently shows increased incarceration does not lead to less violent crime. And heightened severity of punishment isn’t effective at deterring people from committing crimes — including because many are not aware of specific punishments or sentences for crimes, and for the few who are aware, there may be a diminishing shock value of lengthy sentences becoming even lengthier. Additionally, removing people who commit crimes from communities also has little impact on crime, and people convicted of violent crime tend to “age out” of criminal behavior and have the lowest rates of recidivism. The most serious offenses — those involving violence — are usually symptoms of deeper-rooted community needs.
Despite this compelling research, HB 5 seeks to increase penalties for many violent offenses and add more offenses to Kentucky’s already-broad violent offender statute, which will keep 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.
Additionally, the desire to increase penalties for violent crime is also not tied to a violent crime increase in the state. In fact, despite some issues with reporting of 2022 state crime data, violent crime is down from the previous year across Kentucky, following trends nationwide. Community dislocation associated with the COVID-19 pandemic resulted in a spike in certain violent crimes across the country in recent years, though those numbers are now coming down. Still, HB 5 seeks to enact antiquated “tough on crime” provisions under the guise that we will be safer by doing so.
Antiquated “three strikes” provision is historically ineffective and redundant
The bill’s “three strikes” (and you’re out) provision requires any person convicted of a violent felony, who has also previously been convicted of two violent felonies, be sentenced to either life without the possibility of parole or death, if the third offense is death eligible.
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. As of December 2023, only 1% of people serving felony sentences in the state were sentenced to life without parole. The implementation of this provision will undoubtedly increase the number of Kentuckians serving life sentences, thus depriving more communities and requiring an increase in spending by the state.
Includes enhancements and increased penalties for numerous offenses that would keep Kentuckians behind bars for longer
Despite clear evidence that longer prison sentences do not make our communities safer and can actually increase recidivism, the bill seeks to increase penalties for numerous violent 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 anyway.
- Drive-By Shootings: Increases the penalty for Wanton Endangerment in the first degree from a Class D felony (one to five years) to a Class C felony (five to 10) years, if the person discharges a firearm during the offense, and adds such conduct to the violent offender statute.
- Carjacking: Creates a new criminal offense for “carjacking,” 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. Carjacking would be a violent offense.
- 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 in violation of state law at the time.
- Fleeing from Police: While not a violent offense, the bill would require someone to serve at least 50% of their sentence in order to be eligible for parole (up from 25% under current law), and increase the penalty from a Class D felony (one to five years) to a Class C felony (five to 10 years).
Existing penalties for the above 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.
Other concerning provisions expand felonies, enhance penalties and restrict personal liberties
HB 5 does not stop at harsher penalties for violent offenses but includes harsher penalties for many non-violent offenses and 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 proposes to change 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 another property crime.
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 amendments also provide immunity from criminal and civil liability for the individual using force, which means the detained person has no recourse in the courts to address any harm or damages caused by such actions.
Expanding “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 who would have no legal recourse under this bill for their injuries. 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 included in the bill 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 another 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 (the law already applies to those released from Department of Corrections facilities or Federal Bureau of Prisons facilities).
The Kentucky General Assembly should reject harmful proposals in HB 5
Kentucky’s laws related to drugs and for violent offenses are already harsh, and 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.
Additionally, the fiscal impact of HB 5 cannot be understated. It is predicted to have a significant impact, with 37 different provisions that will increase costs to the state and local governments. Housing just one person convicted of a Class A felony costs over $850,000. There will also be additional costs that come with caring for aging populations, as HB 5 seeks to lock up more people for much longer. Aging prisoners will have unique healthcare needs, such as memory care and accessibility needs.
Rather than improving public safety, this bill would have a host of negative 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 will crowd out state dollars that could be invested in evidence-based approaches that would actually 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, not further criminalizing the symptoms of our decades-long failure to do so.