Kentucky just passed the largest change to its criminal laws in recent memory, referred to either as House Bill 5 or the Safer Kentucky Act. It was a massive piece of legislation that made sweeping changes to numerous pre-existing offenses, as well as creating new crimes and punishments. While provisions criminalizing homelessness have gotten a lot of media attention, the most significant long term changes in the law are the increased penalties for already existing crimes.
Prior to the enactment of this legislation, there were a small number of crimes considered “violent”, where probation was not permitted and parole not granted until 85% of a sentence was served. This act amended KRS 439.3401 to add a number of previously excluded crimes to that list.. Some of the crimes now considered violent are attempts of a Capital Offense or Class A Felony (like Attempted Murder), which were already treated seriously in court. However, many other offenses such as Robbery Second Degree, Strangulation First Degree, and Wanton Endangerment First Degree involving the discharge of a firearm were added which were often crimes that were previously probated.
Other crimes that are not considered ‘violent’ under KRS 439.3401 have also had their punishments increase. Fleeing or Evading Police First Degree was just raised from a Class D Felony to a Class C Felony with a mandatory 50% time to serve before a defendant is eligible for probation or parole. Fleeing or Evading Police Second Degree (often just running away from police on foot) was raised from a misdemeanor to a Class D Felony with the same 50% probation or parole eligibility requirement.
The legislature sought to more harshly punish drug traffickers and those who provide fentanyl to people who fatally overdose. Manslaughter First Degree was amended to explicitly include the sale of fentanyl involved in a death and Manslaughter Second Degree now includes giving fentanyl involved in a death without enumeration.
In addition to these changes, additional punishments were added for repeat violent offenders, convicted felons who use a firearm in the commission of an offense, or using a stolen firearm during the commission of an offense.
The only real benefit for criminal defendants in this massive legislative shift comes in the form of a change to the Criminal Mischief First Degree statute, KRS 512.020. While previously the determination of whether an offense was a misdemeanor or felony was solely down to the monetary value, now defendants who pay off restitution ahead of trial can have this felony charge reduced to a misdemeanor. While this pay-to-reduce scheme may not benefit indigent clients (I’m sure there will be equal protection clause challenges raised), it constitutes a massive tangible benefit to defendants with the financial means to pay for the damage they caused.
This massive legislative shift in the punishment of offenses will have the effect of further empowering prosecutors and who can use the increased punishments as leverage. Having a strong criminal defense representation in Kentucky has never been more important.