Right to Repair

An interesting public policy debate is happening across the country right now that runs across industries as diverse as cell phones and John Deere tractors.  In fact, those two examples are the subject of cases that have been in the news recently, presenting this question:

Do we have a right to repair the goods we buy? 

My instinctive response to that is, of course, yes.  And thank goodness, right?  I'm at the tail end of what is likely the last generation  (for a while) of consumers who are willing to fix things that break or wear out rather than running to the store for a new one. In fact, even my own inclination often follows the latter path when it comes to technology gadgets. But my oldest brothers (born in the 70's), and certainly my parents (born the in 30's and 40's) nearly always prefer the former.

It also strikes me that this policy ground should be already well plowed. Third-party (vs. manufacturer) repairs are not new.  Think of your car.  The Advance Auto Parts of the world wouldn't exist if we weren't allowed to be our own shade tree mechanics.  So why is this debate stirring up now?

Here are three stories of note worth checking out. The third is particularly interesting (and troubling) because it's about an internet-of-things manufacturer taking an affirmative step to remotely halt a device from functioning out of spite.  What do you think?  Do we have a right to repair?

SB120

After seven months of work by Governor Matt Bevin's Criminal Justice Policy Assessment Council, or "CJPAC," SB120 was filed to make changes to the criminal justice system to achieve two goals:

• Improve Public Safety
• Enhance the Administration of Criminal Justice

Below I've included the committee substitute ("SB 120 PSS1" – SB 120 Proposed Senate Substitute 1) which will be considered in committee tomorrow.  The substitute makes additional edits to the bill as it was filed, requested by various stakeholder groups.  I've also included a section-by-section summary of the contents of the committee substitute, and a brief one-page summary of the major policy highlights of the bill.

DMC

UPDATE:  On November 28th, staff for the Department of Juvenile Justice and the Administrative Office of the Courts informed me that the data contained in this post is not statewide data, but rather specifically from Jefferson County.  I'll update this post with statewide data once the agencies have provided it.

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Over the last two years the Juvenile Justice Oversight Council (JJOC), created by Senate Bill (SB) 200's juvenile justice reforms, has overseen the implementation of that landmark legislation.  In the time since its enactment we have already seen positive outcomes with fewer kids ending up in the court system and being placed, unwisely and expensively, out of home.  This is still the early days of the reforms, but the preliminary indications are very good, and show the bill is improving outcomes for kids without diminishing public safety.

While we continue to discuss and dissect the rollout of this enormous reform bill, our work on the council also includes exploring policy areas that SB 200 didn't directly address.  At the top of that to-do list is an area of policy work that demands our attention and awareness: Disproportionate Minority Contact, or "DMC."  In Kentucky's juvenile justice system, a system Lady Justice demonstrates should be blind, is evidence that minority children are treated differently.

First, it is important to put the data in context.  Remember as you read through this column that as of 2014, Kentucky's youth population (10 to 17 year olds) roughly breaks down to 83 percent white, 10 percent black, 5 percent Hispanic and 2 percent Asian.

In 2015, statewide status offense (a status offense is not a crime but is an offense only because the person committing it is a juvenile, including truancy, possession of tobacco, running away) detentions already demonstrate a disproportionate reality, with 13 percent of those cases belonging to black youth, compared to 77 percent white youth.

With over 1,700 school complaints during the 2015-2016 school year (statewide) we see a vivid image of DMC.  Nearly 1,200 of them were complaints about black youth.  Here are a few other takeaways from this statewide data:

Black youth had nearly the same number of truancy complaints at 322 as white youth at 314 (remember the 83 percent vs. 10 percent).  Still more jarring is the difference in the disorderly conduct complaint category, wherein white youth make up 35 school complaints compared to the 226 lodged against black youth.  On the charge of Assault in the 3rd Degree (the attempted or actual assault on a teacher, law enforcement officer, first responder and other select professions; a class D felony) black youth had 92 school complaints compared to 17 for white youth.  To do the math for you, the percentage comparisons between white and black kids are grossly disproportionate relative to their respective share of the youth population: Truancy – 45 percent black, 44 percent white; Disorderly Conduct – 85 percent black, 13% white; Assault – 80 percent black, 15 percent white.

2015-2016 School Year, Complaints By Race

Complaint data provided by the Administrative Office of the Courts

I wish the data stopped there, but it does not.  Between 2014 and 2016, the likelihood that a juvenile would be deemed a "youthful offender," which means they're prosecuted in Circuit Court for felonies as an adult, has declined for white youth but has increased for black youth.  In 2014, 41 percent of youthful offenders were white, compared to 50% percent black (itself a disproportionate statistic), but the data from 2016 shows those two groups at 19 percent and 71 percent, respectively.

2014-2016 Youthful Offenders By Race (%)

Data provided by DJJ Juvenile Justice Resource Information (JORI) System

This is simply wrong.

Over the last few months the JJOC has heard hours of testimony about DMC in Kentucky and steps already underway to address it.  The September meeting of the JJOC was entirely about the subject.  Prior to the meeting I made a formal request to each member of the council to come prepared with policy recommendations, and they delivered.  I have already begun work on legislation I intend to introduce in the 2017 session to end this miscarriage of justice for minority youth and I intend to include many of these recommendations.  In the 2016 session I sponsored SB 270 that would have required the most prominent state agencies involved in the juvenile justice system to collect data on race, identify DMC in their own systems, and develop and implement plans to eliminate it to the extent they can.  That bill failed to pass, but I am not giving up.  The numbers are painfully clear that we must take steps to eliminate implicit bias in our system wherever it exists, to improve the community resources for troubled youth regardless of their skin color, and to make certain Lady Justice remains blind.

CJPAC Update

As was announced in this space a couple of months ago the Bevin administration and legislative leaders from both parties and chambers were joined to create the Governor's Criminal Justice Policy Advisory Committee.  Since the creation of "CJPAC" we've heard a steady stream of data and policy testimony to provide legislative food for thought as we look ahead to the 2017 session.

Last month the CJPAC divided into several subgroups to study specific issues in greater detail:

• Penal Code
• Reentry
• Recidivism Reduction
• Probation and Parole reforms
• Drug Policy
• Prevention
• Jail reform

I've been assigned to the Penal Code group, tasked with examining any changes to the entire criminal code.  In case you wanted to take a look at every single criminal offense on the books (in the penal code and outside of it) I hope you have some free time on your hands.

Our small group has met once by phone and once in person so far, and we have another meeting scheduled in just under two weeks when we'll discuss continued changes to some of the biggest pain points in the criminal code.  Should some offenses be reclassified to carry more serious penalties?  Lower penalties?  Where are the inconsistencies (possession of child porn carries the same penalty as possession a stolen license plate, for example)?

Last month during the Judiciary committee meeting we heard from prosecutors about the need to eliminate the "violent offense" label in the code.  Especially for everyone outside the court system the suggestion that some crimes are deemed "violent" and others are not is frustrating.  It is also a bit of a misnomer.  There isn't actually a "violent offense" statute, but rather a handful of crimes that carry a "violent" level of parole eligibility.  For these few crimes a convicted individual must serve a full 85% of their imposed sentence before becoming merely eligible for parole.  You can find that statute and the list of applicable crimes right here if you're interested.  It's a short read.  But the bottom line is that there are a great many crimes that anyone of us would deem "violent" that aren't included in that statute.  There's a growing opinion (that I share) that we should remove that label.

We'll take a look at parole eligibility across a number of crimes.  Should the eligibility threshold move up; drop down; stay put?  We have crimes at 15%, 20%, 50% and 85% (50% is a relatively new group, containing a specific high-level theft, certain cases of heroin trafficking).

At the CJPAC meeting last week we heard from the Department of Corrections and from Pew Charitable Trusts (examining Kentucky's own DOC data) and we can identify a number of trends that demand further attention.  For example, the rate of women being incarcerated has increased 25% compared to only 5% for men since 2007.  Property offenses in prison admissions have climbed by nearly 50%.  Two-thirds of prison admissions are for violations of supervision conditions (probation & parole).  I strongly encourage you to take a look at the charts and takeaways in that data presentation.

Needless to say, no small task awaits us.

Bookmark this page or visit my Apple News channel to stay up to date on what's happening with the CJPAC and other legislation as we approach the 2017 session in January.  If you have some input or feedback please contact me here or here!

Sen. Westerfield Appointed to National Cybersecurity Task Force

For Immediate Release
Contact: John Cox
859-492-2963
John.Cox@LRC.KY.GOV

SENATOR WHITNEY WESTERFIELD APPOINTED TO NCSL TASK FORCE ON CYBERSECURITY

FRANKFORT, Ky. (August 2, 2016) – Senate President Robert Stivers (R-Manchester) announced the appointment of Senator Whitney Westerfield (R-Hopkinsville) to  the National Conference of State Legislatures’ (NCSL) Task Force on Cyber Security. 

“I cannot think of anyone better suited to represent Kentucky on this task force than Senator Westerfield,” said President Stivers. “He has shown a deep understanding of the issues facing the Senate Judiciary Committee, and he is a perfect fit to lead Kentucky’s fight in the virtual realm.”

The Task Force on Cybersecurity’s mission is “to engage members in policy discussions, educate members and extend networking opportunities to legislative leaders on cybersecurity issues through a series of well-defined programs, webinars on key definitions and critical cyber policy issues as well as supporting private-public networks.”

Senator Westerfield, the chairman of the Senate Judiciary Committee, thanked President Stivers and NCSL for the appointment. “In our highly-digital world, the threat to Kentuckians and the rest of the country is rapidly changing.  We must be prepared to combat the digital threats that impact not only retailers and service providers that call Kentucky home, but also our children and senior citizens who are targeted by predators and scams" said Senator Westerfield. “I look forward to working with many talented men and women from across the United States on this task force, and I hope our work will make a difference in keeping our Commonwealth—and nation—safe.

The National Conference of State Legislatures was established in 1975 and is a bipartisan, non-governmental organization dedicated to the success of state legislatures. NCSL has three main objectives: improve the quality and effectiveness of state legislatures; promote policy innovation and communication among state legislatures; and ensure state legislatures have a strong, cohesive voice in the federal system.

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