Two Lives

The political world was rocked earlier this week when a draft majority opinion, the authenticity of which was subsequently confirmed by the Chief Justice, was leaked to the press.  For those of us in the legal community, any leak from SCOTUS would have been stunning, but a leak on this case, which may upend 49 years of court precedent set by Roe v Wade, was earth shattering.

The pro-life and pro-abortion camps responded swiftly, with either immense joy or apoplectic rage.  I am firmly in the pro-life camp.  I learned of the leaked opinion Monday night at the Alpha Pregnancy Care Center annual fundraising banquet, one of many crisis pregnancy centers across Kentucky.  Moments from the banquet’s conclusion I saw the news break and handed my phone to our keynote speaker; he promptly walked back on stage and in words broken by tears of joy, read the headline to the crowd which responded with a standing ovation.  That moment is one I won’t soon forget.

A room of several hundred people from various faiths stood in united in celebration of the news that a court-made doctrine resulting in the deaths of tens of millions of unborn children may finally be overturned.  Apart from the incalculable human tragedy it brought forth, Roe was poorly decided and wrongly established the “history and tradition” of abortion in our nation prior to 1973.  Even one of the greatest defenders of abortion rights, Justice Ruth Bader Ginsburg, once described Roe as “breathtaking.”

In short, Justice Alito’s draft opinion argues the decision to permit, limit, or prohibit abortion is one that should be left to the elected representatives of the people, not the Courts.  Justice Alito is right.

Quick to criticize Kentucky’s Republican legislature about their position on abortion, the media has adopted popular references to “anti” abortion legislation and abandoning the “pro-life” label we know is the truth.  We vote to limit abortion, and some of us want it banned outright, because we believe there are two lives that must be considered. It is grotesque to perform horrific procedures on a human being that cannot speak for or defend itself. That precious life did not choose under what circumstances it was created, and it should not be murdered by another.  The post-abortive women I’ve spoken to also share their feelings of guilt, shame and emotional trauma they endure having made the decision to end their own child’s life.  Abortion kills one life, and permanently scars another.

Neither the degree of development, nor one’s dependence upon another, has a bearing on one’s right to live. Many argue Republicans only care for lives in the womb, but once they’re born, we lose interest; this theory is as false as it is lazy.  Kentucky Republicans have enhanced our child welfare, foster care and adoption systems, led the nation in restoring dignity for expectant mothers in prison, prioritized mothers in substance use treatment centers, and improved mental health supports and made time for children to start the day with a healthy breakfast in schools,

We can and should do more.  Women and families facing crisis pregnancies, particularly those with low income, need more help, including prenatal and postnatal care.  Adoption should be exceedingly cheap and simple. Biological fathers should also be held more accountable. Kentucky has nearly 9,000 children in foster care today that need loving, permanent homes. Beyond government, each of us should show love and grace to women facing unplanned pregnancies, and those who have already made that life-altering decision. Many women seeking abortions are doing so because they fear the judgment or abuse from their loved ones, school, community, and sadly, even their church.

While we work to make life easier for expecting moms and dads with funding, education and job opportunities, we should always protect the precious lives who cannot speak for themselves.  Protecting those lives is challenging, and for some mothers, carrying the child may be emotionally and physically challenging.  That demands more from us as neighbors, loved ones, and as government leaders, to lighten the burden an unplanned pregnancy creates.  We should never resort to killing an innocent life to do so.  

2021 Extraordinary Session Bills

As has been covered widely in statewide and local media, the Kentucky General Assembly has been called into an extraordinary session to address the ongoing COVID-19 pandemic. During the weeks since the Kentucky Supreme Court issued its opinion (in the litigation against the bills passed during the 2021 Regular Session limiting emergency executive powers) once again recognizing the role of the Legislature as the exclusive policy making authority in state government, the leadership in both the Senate and the House have worked together, and negotiated with the Governor’s office, to bring a series of bills forward for the legislature to consider. These bills address a number of issues related to the pandemic, including childcare and school settings, healthcare and healthcare workforce matters, liability protections previously enacted by the legislature, and restoring several (but not all) of the executive actions already taken by the governor that most agree need to be in place for a short while longer.

These bill drafts will be on the legislature’s website soon, but I wanted the public to be able to see them as early as possible. I’ve created the general headings for each of the linked PDFs below to help you locate each bill draft by subject matter.

Note:

1. The economic development bill, known unofficially as BR26 before it gets filed at the start of the Extraordinary Session, is wholly unrelated to the COVID pandemic. This is an economic development bill the Governor has asked us to consider as part of negotiations with a confidential development prospect.

2. The legislative compensation bill, known unofficially as BR19 before it gets filed at the start of the Extraordinary Session, eliminates legislative pay during veto days during Extraordinary Sessions.

Yes On 1

Most people want one thing above all else when it comes to dealing with the criminal justice system: fairness. But fairness only comes when both sides start out with an equal footing. Unfortunately, that simply isn’t the case for victims of crime in Kentucky who are not provided the same level of constitutional rights as the accused.

Kentucky crime victims need your help, which you can offer by voting YES on Constitutional Amendment #1 (Marsy’s Law) on or before November 3. We need Marsy’s Law in Kentucky because it would finally give victims of crime a constitutionally protected right to be notified, be heard, and be present at key court proceedings without infringing upon the rights of the accused and convicted.

Kentucky is one of only 15 states without constitutional rights from crime victims.

Throughout my time as both a prosecutor and a legislator, I have spoken to many people who have been hurt by the imbalance our current system allows. Their stories of fear, loss, and pain are heartbreaking. But we have an opportunity to correct this imbalance of justice by supporting Amendment #1.

During my tenure as Chairman of the Judiciary Committee, I have proudly championed many meaningful efforts, including criminal justice reform, drug abuse care and prevention, and protections for dating violence victims, not because they are partisan in nature, but because they are issues that matter to all Kentuckians. Honoring the rights of crime victims is no different. Marsy’s Law is a bipartisan, common-sense effort to help victims of crime achieve the justice they deserve. Its list of local supporters spans the Commonwealth, and includes the Children’s Advocacy Centers of KY, KY Association of Sexual Assault Programs, Mother’s Against Drunk Driving, the Kentucky League of Cities, Kentucky Mental Health Coalition, the Kentucky Sheriff’s Association, and the Kentucky Association of Chiefs of Police just to name a few.

In the coming weeks, you’re going to hear a lot about Marsy’s Law / Amendment #1. And as the campaign season kicks into high gear, you will no doubt hear opponents launch ridiculous and unfounded attacks that are not supported in fact or in law.

Amendment #1 does not change the federal and state due process standards for criminal defendants nor does it change existing self-defense and stand-your-ground laws. And nothing changes the presumption of innocence; in fact Amendment 1 reaffirms that protection for the accused.

Some will argue that they support victims, but that giving them constitutional rights goes too far. To those individuals, I would ask – what if it was you or your loved one who was a victim of crime? Are you comfortable knowing that your rights aren’t protected at the same level as the accused and convicted? Wouldn’t you want a constitutional right to be heard and to be present in the courtroom? Wouldn’t you want a constitutional right to restitution? Victims shouldn’t be cast aside or ignored, but should be valued and heard. Victims deserve a voice.

If you agree, then please vote YES on Constitutional Amendment #1.

Kentucky’s constitution protects against government overreach and guarantees participatory rights in government action—protections victims deserve. The constitutional rights Marsy’s Law would provide will improve the criminal justice system by ensuring fairness for all involved.

The need for Marsy’s Law is not hypothetical. Thousands of Kentuckians, including people you know, become victims of crime each year. For them, the need to be protected and given a voice is deeply felt.

When Kentuckians vote this year we will have the opportunity to permanently enshrine these rights into our state constitution. But to ensure this happens, we need your help to spread the word about Marsy’s Law by telling your friends, neighbors and colleagues about the importance of voting YES on Constitutional Amendment #1. (Just keep in mind that you may have to flip over your ballot to find it.)

Let’s make 2020 the year we will finally give victims the protections, the voice and the dignity they deserve. Join me in supporting crime victims by voting YES on Amendment #1.

Have questions about the amendment? Check out the FAQ’s at VictimsRightsKY.com. Most of the tens of thousands of Kentuckians who become crime victims each year have no rights under Kentucky law at all. Together, we can change that on November 3rd. #YesOn1

Moving the Goal Posts

Earlier today, Senate Education Committee Chair Max Wise (R, Campbellsville), along with the entire Senator Majority Leadership team, released an op-ed in response to the Governor’s unexpected and abrupt change of plans, creating confusion and frustration in homes and local school board rooms across the Commonwealth. I fully support my friend and colleague, Senator Wise, in this piece:

Commonwealth of Kentucky

Senate Majority Office

August 11, 2020

Reopening Kentucky Schools? Local Superintendents Should Decide

By Senators Wise, Stivers, Givens, Thayer, Adams, and Wilson

We, members of the Kentucky State Senate Majority, have heard a myriad of disappointment, anger, confusion, and frustration from our constituents regarding Governor Andy Beshear’s ‘recommendation’ that all schools open virtually in the fall of 2020. From parents of high school seniors to grandparents of kindergarten students, we are hearing from them all.

Citizens across the Commonwealth know how vital schools are to their communities, as they play an essential role in preparing their children for the future. Some weeks ago, after sending a letter to the Kentucky Department of Education (KDE) encouraging some guidance to be provided to schools, Governor Beshear’s KDE finally took a position. If districts worked with local health departments, school administrators, teachers, and community leaders to develop well-designed plans that fit their local needs, KDE would review them and offer suggestions. The goal was to get children back into schools ready for in-person learning while permitting districts and families the flexibility if they choose to attend virtually.

Suddenly, yesterday, Governor Beshear unilaterally moved the goalposts. He moved from an initial recommendation to wait until the third week of August to resume in-person classes to now extending that date to the week before schools would be closed for fall break. One of the most frustrating scenarios is that over 100 local school districts were not given a chance to see if their in-person model may work. Surveys were taken, input was provided, and plans were developed only to see a ‘recommendation’ basically corner those superintendents into a box. Are they not to be trusted? Some districts had already announced their initial ‘virtual-only’ plans.

In contrast, many smaller or rural public school districts hoped to follow through on the overwhelming clamor from their teachers, parents, and students to offer a choice and support a reopening for in-person education during the 2020-21 school year. Locally, no voice has been louder than that of working-class parents. Much like when the pandemic began, these parents are being pushed into a financial crisis. Many of these parents have returned to work to now face the additional economic sacrifices and dilemmas of finding childcare, quitting a job, seeking family assistance, or requesting workforce accommodations to comply with this last-minute ‘recommendation.’

At this Monday press briefing, the question was posed to the Governor, “What is the impact of your recommendation on delaying the start of in-person classes until September 28th?” His response, “It is a recommendation. We are basing it on public health advice and the facts right now. If local school officials ignore us, the consequences are theirs.” From the start, the Governor has said, “We are in this together,” but suddenly, now “the consequences are theirs?” This statement and tone indicate blame, finger-pointing, and potential retribution for districts that don’t follow his ‘recommendation.’

“We fully support decisions made on the local level because they have the pulse and the ear of their communities’ safety and students’ best interest. The outcomes of those decisions will likely not be perfect, but we will stand beside those students, families, leaders, and teachers.”

— Senator Max Wise

Regarding public health advice, remember that the CDC director testified that keeping schools closed poses a more significant health threat to children than reopening. Suppose we fail to provide access to in-person learning. In that case, Kentucky’s school-aged children will receive limited or no access to nutrition, immunizations, mental health counseling, speech therapy, and other essential health-related services.

The Republicans of the Kentucky State Senate believe that we should indeed all be in this together. We echo the words of UK President Dr. Eli Capiluto, quoted on July 21, 2020 by the Lexington Herald-Leader. When questioned about the wisdom of his endorsement of students returning to campus coursework and activities, Dr. Capiluto responded, “As I heard someone recently say, we have two choices: we can go into lockdown, shutdown, or we can try to live in a COVID world. I think most of us realize we’ve got to live in a COVID world. So how do we make it as safe as possible for our student-athletes and for those who are dearest in our community — students, staff and faculty? That’s what we’re trying to do.”

In closing, we have full confidence in Kentucky’s education professionals. Their innovation, adaptability, professionalism, and commitment is unmatched. We support districts deciding on their own to start in-person, virtually, or through a hybrid methods. We cannot apply a one size fits all model for our school districts, as what is best for Jefferson County may not be the same for Adair County. We fully support decisions made on the local level because they have the pulse and the ear of their communities’ safety and students’ best interest. The outcomes of those decisions will likely not be perfect, but we will stand beside those students, families, leaders, and teachers.

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Note: Senator Max Wise represents the 16th District, which encompasses Adair, Clinton, Cumberland, McCreary, Russell, Taylor, and Wayne Counties. He is the chairman of the Senate Education Committee. Senate President Robert Stivers represents the 25th District, which encompasses Clay, Knox, Lee, Owsley, Whitley, Wolfe counties. Senator David Givens represents the 9th District, which encompasses Allen, Barren, Green, Metcalfe, Monroe and Simpson Counties. He serves as the Senate President Pro Tem. Senator Damon Thayer represents the 17th Senate District, which includes southern Kenton County as well as all of Grant and Scott Counties. He is the Senate Majority Floor Leader. Senator Julie Raque Adams represents the 36th State Senate District, which includes a portion of Jefferson County. She is the Senate Majority Caucus Chair. Senator Mike Wilson represents the 32nd District in Warren County. He serves as the Senate Majority Caucus Whip.

How to Respond

Like the rest of the nation, I’ve watched the events of the last few weeks unfold in horror. I certainly am thinking as a citizen, a former prosecutor, and as a senator, about what’s happening, what has gone so wrong, where others have made mistakes, what kind of bills I could file or grant a hearing to to advance the cause of racial equality. But all of those are a distant second place in my mind. I am troubled most about the state of the things as the father of two perfect, funny, loving, very busy, brown children.

I’ve watched our five year old learn about all kinds of things, and we’ve done our best to teach her all the important things in life that all five year olds should know. Above all, we tell her often how much we love her, and how much God — who designed and intended every part of who she is — loves her. We do the same for her two and half year old brother. Hadley, our daughter, became part of our family at birth through a traditional adoption. Hayes became part of our family even earlier than birth through embryo adoption. They are our kids. They know Amanda and me as “momma” and “daddy”. When and how do you tell my brown kids that a part of the world sees them as less than? Our kids are too young to try to explain the unimaginable tragedies of George Floyd, Breonna Taylor and Ahmaud Arbery, but they won’t always be. At some point we’ll have to do what Momma’s and Daddy’s of black and brown kids all over America have to do everyday; break their children’s hearts with the truth. Big parts of this great nation will, seemingly, always view them as inferior to people who look like Amanda and me. Institutions that white people rely upon and trust do not universally favor and work for the good of brown and black kids and adults.

We don’t know how to do it. We don’t want to do it. I said as much to a black friend of mine a few nights ago by text message and he replied simply with “You will find a way. Remember ‘Love never fails.’” He is absolutely right. And while I still don’t know how we’ll do it when the time comes, I pray our love (and we know God’s love) will be sufficient. “Love is patient, love is kind. It does not envy, it does not boast, it is not proud. It does not dishonor others, it is not self-seeking, it is not easily angered, it keeps no record of wrongs. Love does not delight in evil but rejoices with the truth. It always protects, always trusts, always hopes, always perseveres. Love never fails.”

The time to talk to our kids about the world isn’t yet upon us. But there’s nothing from stopping me from taking action right now. Anne Frank wrote in her diary “how wonderful it is that nobody need wait a single moment before starting to improve the world.” I serve in the Kentucky State Senate, and I chair the Senate Judiciary Committee, and the time is certainly ripe for action there. We must be willing to examine the mistakes we’ve made over two centuries in the General Assembly. I must be willing to examine my own failures to push hard enough (or in some cases to act at all) to eliminate systemic inequalities of Kentucky state government. We need to be prepared to listen, and to act.

Over the last few years I’ve tried to advance legislation that would address an issue I didn’t know existed when I first came to the Senate eight years ago: disproportionate minority contact, or “DMC.” But there are other proposals that deserve to be debated. Perhaps we should require a review of enacted bills to verify that it does not have a disproportionate impact on minority Kentuckians. Maybe we should include sunset clauses on bills if a disproportionate impact surfaces. We should eliminate the automatic transfer of juveniles to circuit court as youthful offenders. We should, finally, fully prohibit the use of detention for status offenders. I suspect there is no shortage of legislation we could consider in 2021 and beyond. The use of force, no-knock warrants and body cams are certainly at the front of many minds right now, and for good reason. I don’t have all the answers, and government alone can’t fix every problem, but people across the Commonwealth are sharing ideas and suggestions and we should be willing to consider any that may advance the cause of justice and racial equality.

“How wonderful it is that nobody need wait a single moment before starting to improve the world.”

— Anne Frank

I will not condone rioters and looters and violence, and I will not condone those intentionally inciting and inviting those demons. But peaceful protestors are doing what peaceful protestors have done for generations; peacefully seeking to be heard, peacefully seeking to right a wrong. George Floyd, Breonna Taylor and Ahmaud Arbery are just the most recent, most visible examples of generations of wrongs. James wrote in his letter “...everyone should be quick to listen, slow to speak and slow to become angry...”. I will strive to be quick to listen to those suffering from racial inequality, and do my best to understand their perspective, as much as a white man can. They have this senator’s, this father’s, attention. I may not move the needle much, but as long as our kids see that I’m trying to move it at all, that might make all the difference.