Good Morning,

There has been some talk regarding HB463 recently through our community coalitions and we think it is important that we all properly understand this legislation.

 HB463 is the culmination of the work of a task force created by the Kentucky General Assembly, working in conjunction with the nationally-recognized PEW Center for the States.  The task force consisted of House Judiciary Chairman John Tilley; Senate Judiciary Chairman Tom Jensen; Justice & Public Safety Cabinet Secretary J. Michael Brown; LaRue County Judge Executive Tommy Turner; Defense Attorney Guthrie True; former Commonwealth Attorney Tom Handy; and Kentucky Supreme Court Chief Justice John D. Minton.  The task force met over a seven month period, receiving input from law enforcement, prosecutors, criminal defense attorneys, members of the drug treatment community and others.

Overall, HB463 provides our judicial system a means to have offenders enter the treatment tract at a quicker and earlier pace, rather simply entering into incarceration.  The bill is estimated to create $422 million in savings over the next decade, a significant amount of which will be reinvested into substance abuse treatment options.

Here's a quick summary of some of the bill’s actual implications:

 1.  Provides Parole & Probation Officers with the ability to utilize graduated sanctions.  It provides a wide range of accountability measures and programs for supervised individuals, including but not limited to electronic monitoring; drug & alcohol testing monitoring; day or evening reporting centers; restitution centers; disallowance of future earned compliance credits; rehabilitative interventions such as substance abuse or mental health treatment; reporting requirements to probation & parole officers; community service or work crews; secure or unsecure residential treatment facilities or halfway houses; and short-term or intermittent incarceration.  What this means is that if a parolee/probationee has a violation then the parole/probation officer can use a number of options to deal with the violation rather than simply revoking parole/probation and sending the parolee/probationee back into incarceration. 

 2.  Provides Judges the Ability to Facilitate a Risk & Needs Assessment.  This allows for a "pretrial risk assessment" which is an objective, research based, validated assessment tool that measures a defendant's risk of flight and risk of anticipated criminal conduct while on pretrial release pending adjudication.  Additionally, the "risk and needs assessment" or "validated risk and needs assessment" means an actuarial tool scientifically proven to determine a person's risk to reoffend and criminal risk factors, that when properly addressed, can reduce the person's likelihood of committing future criminal behavior.

 3.  Trafficking in Controlled Substances.  HB463 will amend KRS218A.1412, Section 9(1) to provide that a person is guilty of trafficking in controlled substance in the first degree when he or she knowingly and unlawfully traffics in:

    a.  4 grams or more of cocaine

    b.  2 grams or more of heroine or methamphetamine

    c.  10 or more dosage units of a Schedule I or II controlled substance and is a narcotic drug or controlled substance analogue...

 Additionally, HB463 amends the statute by providing that violators of this section are guilty of a Class D felony, punishable by 1 to 5 years incarceration.  Prior to HB463 offenders would have been guilty of a Class C felony, punishable by 5 to 10 years incarceration.

 4.  Allows Law Enforcement to Aggregate Over a 90-day Period.  The amounts specified in the statute may occur in a single transaction or may occur in a series of transactions over a period of time not to exceed ninety (90) days that cumulatively result in quantities specified in this section.

 5.  Over Specified Quantities.  If the offender is over the 4 gram, 2 gram or 10 dosage unit provided above, the punishment remains a Class C felony for 1st offense or Class B felony for subsequent offenses.

 6.  Schedule 3 Controlled Substances.  If less than 20 doses of a Schedule 3 Controlled Substance, the individual is guilty of a Class D felony (previously a Class C felony).  However, remains a Class C for subsequent offenses.

 7.  Trafficking in the 3rd Degree.  Anyone trafficking in a Class 4 drug (Xanax/Valium) is guilty of a Class A misdemeanor for 1st offense or Class D Felony for subsequent offenses.  Also provides that a person guilty of a Class A misdemeanor for the first offense is subject to imposition of presumptive probation.  "Presumptive Probation" means a sentence of probation not to exceed the maximum term specified for the offense, subject to conditions otherwise authorized by law, that is presumed to be the appropriate sentence for certain offenses.  That presumption shall only be overcome by a finding on the record by the sentencing court of substantial and compelling reasons why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.

 8.  Possession of Marijuana.  This has been lowered from a Class A to Class B misdemeanor with no greater than 45 days in jail.

 9.  Flight Risk or Danger to Self or Others.  The statute provides that the provisions of this do not apply to a defendant who is found by the court to present a flight risk, or to be a danger to himself or herself or a danger to others. 

 10.  Arrests in Misdemeanor Cases.  The statute provides that law enforcement may make arrest in misdemeanor offenses made in their presences involving DUI, Assault, Sex Offense or Weapons, or in any other offense where the law enforcement officer determines the defendant could cause harm to himself or others or in offenses where the defendant doesn't follow instructions of the law enforcement officer or is in violation of probation. 

 As you can see, HB463 decreases punishment levels to those offenders who are not habitual offenders.  It does so in an attempt to provide the first time or early offender an opportunity to receive treatment rather than enter into incarceration.

 We urge you to share this summary of HB463 with those you work with and others. 

 As always, please feel free to contact us with your comments or questions. 

News Release
FOR IMMEDIATE RELEASE
November 24, 2010
Contact: DEA Public Affairs
Number: 202-307-7977

DEA Moves to Emergency Control Synthetic Marijuana
Agency Will Study Whether To Permanently Control Five Substances

NOV 24 -- WASHINGTON, D.C. – The United States Drug Enforcement Administration (DEA) is using its emergency scheduling authority to temporarily control five chemicals (JWH-018, JWH-073, JWH-200, CP-47,497, and cannabicyclohexanol) used to make “fake pot” products.  Except as authorized by law, this action will make possessing and selling these chemicals or the products that contain them illegal in the U.S. for at least one year while the DEA and the United States Department of Health and Human Services (DHHS) further study whether these chemicals and products should be permanently controlled. 

A Notice of Intent to Temporarily Control was published in the Federal Register today to alert the public to this action. After no fewer than 30 days, DEA will publish in the Federal Register a Final Rule to Temporarily Control these chemicals for at least 12 months with the possibility of a six-month extension. They will be designated as Schedule I substances, the most restrictive category, which is reserved for unsafe, highly abused substances with no medical usage.

Over the past year, smokable herbal blends marketed as being “legal” and providing a marijuana-like high, have become increasingly popular, particularly among teens and young adults.  These products consist of plant material that has been coated with research chemicals that mimic THC, the active ingredient in marijuana, and are sold at a variety of retail outlets, in head shops and over the Internet.  These chemicals, however, have not been approved by the FDA for human consumption and there is no oversight of the manufacturing process.  Brands such as “Spice,” “K2,” “Blaze,” and “Red X Dawn” are labeled as incense to mask their intended purpose. 

Since 2009, DEA has received an increasing number of reports from poison centers, hospitals and law enforcement regarding these products.  Fifteen states have already taken action to control one or more of these chemicals.  The Comprehensive Crime Control Act of 1984 amends the Controlled Substances Act (CSA) to allow the DEA Administrator to emergency schedule an abused, harmful, non-medical substance in order to avoid an imminent public health crisis while the formal rule-making procedures described in the CSA are being conducted. 

“The American public looks to the DEA to protect its children and communities from those who would exploit them for their own gain,” said DEA Acting Administrator Michele M. Leonhart.  “Makers of these harmful products mislead their customers into thinking that ‘fake pot’ is a harmless alternative to illegal drugs, but that is not the case.  Today’s action will call further attention to the risks of ingesting unknown compounds and will hopefully take away any incentive to try these products.”