After two and half hours of testimony from victims’ families, attorneys and lawmakers, the House Judiciary Committee passed legislation that would likely incarcerate more people for longer, and at significant expense.
Republican House leadership has marked House Bill 5 as priority legislation. A cohort of Louisville-area Republicans are pushing the bill as a solution to a perceived rise in crime, especially in Kentucky’s largest city.
The bill’s lead sponsor Rep. Jared Bauman of Louisville said the measure is a reassertion of basic truths.
“And that is that criminals, not society, are accountable for their actions. And society has the right to protect itself from the criminal element,” Bauman said.
The sweeping legislation creates more than two dozen penalty enhancements. It in part cobbles together legislation from previous sessions like restrictions on bail funds and increased penalties for fleeing police. It also includes new provisions like a blanket ban on “street camping” and a standalone carjacking statute.
Several Democrats, leaders of grassroots nonprofits and advocates for homeless people and those suffering from substance abuse disorders say the legislation targets vulnerable populations without addressing root causes.
Louisville Democratic Rep. Keturah Herron said she understands the desire to solve violent crime in Kentucky, but years of mass incarceration across the U.S. have not made the country safer.
“At no time in the state of Kentucky or in our nation, have we been able to incarcerate ourselves out of any issue ever. And I don't think that today or next month or this year is going to be the year that we do that,” Herron said.
A right-leaning economic advocacy group said the bill could come at significant cost to the state and local authorities, citing a Corrections Impact Statement. Two Republicans voted against the measure and a third, Rep. Kim Moser from Taylor Mill, passed on the vote, saying the bill’s broad scope resulted in some provisions she feels are redundant or possibly harmful.
“I just feel like we're looking at about 10 different bills here. It's too much,” Moser said. “I just think that we can get to a better product here. The intent, of course, is to keep Kentucky citizens safe. We all want that.”
Despite concerns raised by committee members and at least half a dozen community leaders who testified, the bill passed the House Judiciary committee with a 13-5 vote. A few elements of the bill were changed and removed in a committee substitute, including a piece that would have endangered federal funding for certain housing programs — though it still bans the use of state money.
HB 5 now moves to the House floor where it’s likely to pass given there are 52 sponsors listed on the bill and 100 members in the state House.
“The doubt of this bill today isn't really in dispute,” said Kungu Njuguna, a policy strategist with the ACLU of Kentucky. “Let's work out the imperfections that we've heard about and the concerns that you've heard about. Join me in engaging in real tough, frustrating and imperfect work of creating the strong, vibrant, prosperous Kentucky that we all want.”
Increased penalties
In Thursday's hearing, Louisville-area Republicans including Bauman and Rep. Jason Nemes cited concerns around rising crime as the driving force behind the legislation.
In the first years of the pandemic violent crime spiked in Kentucky and across the country. But Federal Bureau of Investigations crime data shows a significant drop in violent crime in 2022.
Certain violent crimes, like homicides, are still above pre-pandemic levels, but they have dropped significantly since spiking in 2021. Meanwhile, rates of property crimes haven’t increased in Kentucky for at least a decade, according to the FBI. Property crimes like burglary and car theft in Kentucky actually declined over the last decade through the end of 2022.
Nemes from Middletown pointed to a Council of State Government report that showed violent crime increased slightly in Kentucky in 2023 — data which the FBI has yet to release in detail.
“We were one of only three [states] that have had an increase,” Nemes said. “A fraction [of a percentage point increase] is an individual who got harmed.”
HB 5 increases the severity of several criminal offenses, which Nemes and other Republicans suggest will lower crime rates and keep criminals off the street. For example, a person fleeing the police in a car would be charged with a Class C felony instead of a Class D felony under the bill. That would increase the maximum sentence from five to 10 years in prison.
That provision was inspired by the story of Jake Luxemburger, who was killed when a man who had a history of fleeing the police hit and killed Jake in a stolen car. Jake’s mother and sister testified at the hearing.
“If Jake's law had been in effect, my son's death might have been prevented,” said his mother Kate Luxemburger. “This person may have thought twice about fleeing from the police. We have to do better as a whole. We have to do better to protect our communities.”
Kaylee Raymer, a policy analyst with the Kentucky Center for Economic Policy, said research suggests longer sentences are not effective at deterring crime and are costly for society.
“Longer sentences don't make us safe and they don't deter people from committing violent crime. In fact, the general public is pretty much unaware of sentencing details,” Raymer said. “People tend to age out of criminal behavior. So we've been paying to keep folks locked up long after they pose any threat to our communities.”
The opioid crisis
The bill would also charge any person who “knowingly” sells fentanyl to another person and causes them to fatally overdose with murder. It would also charge any person who knowingly distributes it and causes a fatal overdose with first-degree manslaughter.
Kentucky Fraternal Order of Police Vice President Ryan Straw spoke in support of the stiffer penalties for fentanyl trafficking.
“Fentanyl in our communities is getting worse by the minute. It’s always a danger to those who have become addicted or try it, but it's also dangerous to law enforcement professionals and first responders that had to deal with those individuals,” Straw said.
Several advocates who opposed the provision said they were concerned it would conflict with the state’s Good Samaritan Law, which protects people from prosecution for reporting a drug overdose.
Raymer, with the Kentucky Center for Economic Policy, said charging people with murder in connection with overdose deaths could make people think twice about calling for help.
“We're all concerned about the overdose crisis in our state, but there is evidence that policies in House Bill 5 will make it worse,” Raymer said. “The drug-induced homicide provisions in this bill are unlikely to capture drug kingpins, but more likely to capture low-level offenders.”
Discretion and high costs
Moser, a Republican, joined with Democrats and advocates in concerns the bill could duplicate existing statues.
For example, the Louisville Urban League’s Felicia Nu’Man pointed out the three-strikes law for violent offenders shares many commonalities with the state’s persistent offender statute. The statute already allows for adding time to a sentence for repeated offenses within a given time frame, depending on the severity.
Nu’Man said she considers that discretion a strength, not a weakness of state law as a former prosecutor herself.
“A prosecutor has the discretion to charge as many offenses as he or she wants. It’s called stacking charges,” Nu’Man said. “We do not want to take away the prosecutorial discretion. It will cripple the prosecutor.”
Other groups raised concerns over the cost of the bill, which could take a huge toll on the state’s laboring corrections department. A fiscal impact statement released shortly before the committee hearing showed a “significant” financial burden, although it declined to put an exact dollar amount.
“With longer incarceration times, the challenge of reentry back in the community will become more difficult,” said Sarah Durand, with the right-wing Kentucky Forum for Rights, Economics and Education. “I don't believe that that is the intent of bill sponsors, but that appears to be an unintended consequence.”
