Frankfort, Kentucky- April 20, 2024
Editor: Michael R. Grigsby
Although House Bill 5, popularly known as the "Safer Kentucky Act," has drawn a lot of attention for its contentious homelessness measures, the 78-page bill contains a lot more.
The law also specifies what constitutes a violent crime, which is now expanded to include attempted violent offenses. By a vote of 27 to 10, the Senate overrode Governor Andy Beshear's veto on April 12. President of the Senate Robert Stivers was one of those 27. Additional modifications include charging for the distribution of fentanyl that results in death, providing statistics to state government officials, and prohibiting violent offenders from receiving forms of early release until 85% of their sentence has been served.
The criminal penalties for fentanyl and its derivatives have been enhanced by Kentucky legislators on many occasions (Senate Bill (SB) 192 in 2015, HB 333 in 2017, and HB 215 in 2022). Current law defines trafficking in the first degree as the transfer of any amount of carfentanil, fentanyl, or a fentanyl derivative. This is a Class C felony, punishable by five to ten years in prison for the first offense, and a Class B felony, punishable by ten to twenty years for the second.
Furthermore, as of 2019 (HB 470), the use of certain narcotics in "unlawful distribution" that causes a death can result in a charge of manslaughter in the second degree, a Class C felony carrying a five-to 10-year term. The most recent draft of the bill retains the ability to charge someone with murder even though they did not intend to cause someone else's death through the sale of fentanyl; nonetheless, they might still face the following 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.
The new crime of "unlawful camping," introduced by HB 5, makes it unlawful to sleep outside in a public place. "Unlawful camping" is punishable by a Class B misdemeanor for the second and subsequent offenses, which carries a maximum sentence of 90 days in jail and fines of up to $250, and a violation for the first offense, which is subject to a fine of up to $250. The first offense might result in a Class B misdemeanor penalty if the offender doesn't discontinue their "unlawful camping."
Local governments are not allowed to create procedures or policies that “directly or indirectly prohibit or discourage” the application of the legislation. Although not all counties have shelters or the funding to build them, the bill allows local governments to designate locations with potable water and sufficient sanitary facilities for homeless people to temporarily camp. For people who sleep in their cars for less than 12 hours, this version of the law does allow an exception for "street camping," as long as the vehicle is parked legally.
The bill also adds new circumstances to KRS 503.080, which addresses the lawful use of physical force, in which a person who owns or leases property where "unlawful camping" is taking place has been told to stop and has used force or threatened to use force against the owner or lessor.
More than 21,000 Kentuckians are incarcerated on any given day; almost 50% of them have not been found guilty of any crimes and are only there because they are unable to pay their bond.
HB 5 will impose 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, or 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 necessary, the law stipulates that it cannot be used as a form of punishment or to hold someone in custody until trial, and that it must be established at a sum that the individual obliged to pay can afford. Bail is meant to give those facing criminal charges some certainty that they will appear in court so they can move on with their lives.
HB 5 introduces penalties for parents or guardians with children in juvenile court proceedings, requiring attendance and fines.
HB 5 greatly expands Kentucky’s already-broad violent offender statute and increases penalties for many existing crimes. 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 expands the 85% sentence requirement for violent offenders, including those convicted of three offenses, and includes a "three strikes" provision, allowing life without parole or the death penalty.
HB 5 increases penalties for non-violent offenses and reduces criminal mischief charges from $1,000 to $500 for public and private property damage. It also allows for a reduction to a misdemeanor if the accused repairs or pays damages.
HB 5 expands the criminal mischief definition to include tenant damages at any monetary amount, making $500 or less a Class A misdemeanor and $500 or more a Class D felony. It also expands "shopkeeper's privilege" to allow force to detain a stealing person, providing immunity from criminal liability but allowing civil liability for failure to exercise reasonable care.
A penalty enhancement allows adults 18 and older to be charged with a B felony for "criminal conspiracy" with a minor, resulting in a higher level of consequence and prison time, even if the underlying offense is a C felony.
The bill expands harassing communications definitions, increases penalties for repeated violations of protective orders, and makes changes to the auctioning of guns used in homicides. It also expands individuals entitled to identification cards or licenses upon release. Kentucky's jails are chronically overcrowded, with 65% of full-service jails at 100% capacity, and seven at over 150%. This leads to increased costs and houseless incarceration, with the state incarcerating 40% more people per capita than the rest of the nation.
Opponents argue that the proposed bill would increase overdose deaths, incarcerate poor Kentuckians, hinder homelessness efforts, increase violence, and result in longer sentences, reducing state funds for evidence-based approaches, thus hindering public safety. State lawmakers have increased criminal penalties in response to concerns over overdose deaths, violence, and the state's housing crisis, despite their ineffectiveness in reducing these issues.
The General Assembly's override of Governor Beshear's veto, House Bill 5 (HB5), was passed on April 12, 2024, and is now in effect.
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