Senate sends House a bill to create a pilot program for treatment of offenders with mental-health or substance-use disorders

By Melissa Patrick
Kentucky Health News

A bill moving through the state legislature would create a pilot program to divert some qualifying low-level offenders away from jail and into treatment for substance-use disorder or mental-health issues.

State Sen. Whitney Westerfield

While getting his bill through the Senate March 18, Judiciary Committee Chair Whitney Westerfield said he had been working on the problem for several years when he realized, at an unrelated meeting about bail issues, that everyone there recognized the need to address behavioral-health issues among prisoners. 

"The long and short of it is this," he told his colleagues. "Everyone in the room, the most hard-nosed prosecutor, the most soft-hearted defense attorney, every judge at every level, everyone agrees that the vast majority of our prison population could benefit from some sort of behavioral-health intervention."

Westerfield's Senate Bill 90 would create a pilot program in at least 10 counties, determined by the state Supreme Court, that would require a mental-health and substance-use disorder assessment for low-level offenders.

If an offender qualified for the new Behavioral Health Conditional Dismissal Program, the prosecution and the defense attorney must agree for the offender to join it.

Charges against the offender would be deferred, meaning that the prosecution would be "set on the shelf," Westerfield said. Those who successfully complete the program would have their charges dismissed. 

To qualify, offenders can't be charged with a felony higher than Class D (punishable by one to five years in prison), and can't have a previous conviction for a higher felony. Also, those charged with violent offenses or sex offenses, among others, would not be eligible.

In addition to treatment, the program would have educational, vocational and recovery-housing supports. Westerfield said it's been said over and over that getting someone a job is the single most effective thing we can do to prevent offenders from committing another crime: "If we can keep them from coming back, we've saved us all a bunch of trouble and we've saved a future victim."

With some exceptions, the program must last at least a year and cannot exceed the person's maximum incarceration time unless the defendant agrees in writing to extend the treatment period. 

That's important, said Senate President Robert Stivers, a co-sponsor of the bill, who said he had also been working on the problem for several years.

"Every study you will read will say that a person is less likely to be a recidivist or a relapser once you get beyond a year," he said. "If you get them . . . some type of skills and training and a job, your likelihood of relapsing or recidivism even drops greater than that." 

Stivers added, "I don't know if it goes far enough or too far. But truly, if we're thinking about getting into changing the trajectory of people's lives, getting people back to work, getting them off the welfare rolls, medical assistance, Medicaid, this is an alternative that I believe we should try."

Sen. David Yates, D-Louisville, said the program has the potential to be "transformative to the Commonwealth of Kentucky," because a tough-on-crime approach often does not work for people with mental health or substance-use disorder issues. Yates is a lawyer, as are Westerfield and Stivers. 

"This is just an excellent step in the right direction to get people out of jail, into the workforce, into our economy and stopping this terrible cycle that we hear over and over again," Yates said. 

Sen. Robin Webb, D-Grayson, a lawyer who voted against the bill, asked who would have access to the mental-health evaluation that is taken within 72 hours of intake, often before the offender has an attorney. 

Westerfield said that would be medical information, so only the medical provider would have access to it unless the offender committed a crime during the assessment. He said he would be willing to adjust the bill in the House to ensure that the commonwealth's attorney does not have access to the assessment. 

SB 90 passed the Senate 27-4. In addition to Webb, Republicans Chris McDaniel of Ryland Heights, John Schickel of Union and Majority Floor Leader Damon Thayer of Georgetown voted no.

The bill is now in the House. It has a data-collection component to help determine its effectiveness. The program would begin in October and last four years unless extended or limited by the legislature.