Police Must Detail Seizures Or Lose Training Money Under Proposed Bill Wednesday, Jan 15 2020 

A bill filed this week in the General Assembly would require law enforcement agencies to disclose more details about cash and property seized through asset forfeiture or be subjected to financial penalties.

Rep. Reginald Meeks, a Louisville Democrat, is sponsoring the measure, which would beef up existing reporting requirements. Agencies that don’t comply would lose $4,000 reimbursements from a state fund for individual officers who complete continued training.

Law enforcement agencies are already required to file annual reports detailing how much cash and property they seize, but not all do. State data analyzed by the Kentucky Center for Investigative Reporting found just 11 percent of law enforcement agencies submitted required reports each year between fiscal years 2013-2017. In that time, the agencies that did submit the required reports seized about $36 million.

Meeks said asset forfeiture is a financial boon for some counties and any process that takes property from people demands transparency and discussion.

LRC Public Information

Rep. Reginald Meeks, D-Louisville

“It’s a slippery slope when counties start funding serious components of their operation off the backs of these people,” Meeks said. “That feeds the proverbial industry of incarceration.”

State law allows law enforcement agencies to keep 85 percent of what they take. Prosecutors keep the rest. That wouldn’t change under Meeks’ bill. But agencies would be required to provide a greater degree of detail about what they take.

Currently, law requires agencies to submit a “detailed listing of all money and property seized” at the end of each fiscal year. But Meeks’ bill would bolster that by requiring agencies to list the date and location of each seizure, a description of what was seized, the name of the person subjected to the seizure, the criminal charges tied to the seizure and the outcome of those charges. Agencies would also have to explain details about the disposition of the property seized — if it was returned, destroyed, or kept.

Agencies would also be required to disclose if the seizure was made by a federal agency or through a task force of multiple agencies.

Failing to submit a report would make agencies ineligible under the measure to receive the officer training funding from the Kentucky Law Enforcement Foundation Program, or KLEFP, which is funded through a surcharge on certain state insurance policies. 

Meeks’ bill also seeks to establish a protocol to enable the Kentucky Justice and Public Safety Cabinet to enforce the reporting requirement. Under his proposal, the cabinet would refer agencies that fail to report to the Office of the Attorney General, which would institute civil action to collect any money or property seized through asset forfeiture by the agency.

Justice Cabinet officials would also be required to provide legislators with a summary report of what law enforcement agencies reported seizing each year, under the bill.

Lisa Lamb, a spokesperson for the cabinet, said the agency doesn’t have a position on the bill.

Meeks has served in the House since 2001. As a Democrat in the Republican-controlled legislature he will face an uphill battle to see his bill considered in a committee, let alone pass one.

“I think that there are people out here who want to have this discussion and who deserve the opportunity to have this discussion,” Meeks said. “If the Republican leadership doesn’t agree with that then they won’t let it be heard.”

Republicans have pushed similar efforts to reform the state’s asset forfeiture practice.

Meeks’ bill bears similarities to a measure filed last year by Rep. Savannah Maddox, a Republican from Dry Ridge. That bill also called for more details about seized property and threatened to withhold officer training funding if agencies failed to report. Maddox’s bill died in committee.

Meeks’ bill has yet to be assigned to a committee as of Wednesday morning. But it’s already drawing ire from some law enforcement advocates.

Jerry Wagner, the executive director of the Kentucky Sheriffs’ Association, said he would not support any measure that jeopardizes funds meant to support officers.

Stripping those particular funds due to a law enforcement agency’s failing is unfair and short sighted, he said. 

“You’re going after the wrong people,” Wagner said. “If an adult breaks the law, you don’t go after the children.”

The bill’s fiscal impact is “indeterminable,” but the financial penalty of withholding the officer training funds would impact morale and affect retention and recruitment of officers, according to documents filed with the bill.

The Kentucky Law Enforcement Foundation Program fund is administered by the Department of Criminal Justice Training. A 2016 state audit found excessive travel spending, unpermitted purchases, and questionable hiring decisions with those funds. 

The DOCJT took in more than $67 million in Kentucky Law Enforcement Foundation Program funds in fiscal year 2016, Harmon reported.

Wagner said he could be swayed to support the bill if language was amended to hold agency leaders accountable, instead of focusing on  officers’ funds. “You’re penalizing people who have no control,” Wagner said.

But Wagner and other law enforcement officials agree that agencies should be disclosing what they take through asset forfeiture.

“It’s a matter of transparency and accountability,” said Daviess County Sheriff Keith Cain. 

Cain, a two-time president of the Kentucky Sheriff’s Association, said asset forfeiture is “under attack” and agencies can help squash concerns about the practice by being open with what they seize.

“We are in the business of enforcing the law,” Cain said. “It would send a negative message if we chose to ignore it.”

Contact Jacob Ryan at (502) 814.6559 or jryan@kycir.org.

Beshear Reinstates Worker Safety Board Bevin Dissolved Friday, Jan 10 2020 

Gov. Andy Beshear announced Friday that he has reinstated the Occupational Safety and Health Standards Board, which former Governor Matt Bevin abolished in July 2018.

“Every Kentuckian should be safe at their place of employment,” Beshear said in a statement. “We have worked with industry leaders to reestablish the board and ensure we have professionals from across the Commonwealth that are committed to helping strengthen our workplace safety standards.”

The OSH Standards Board is responsible for adopting, modifying or suspending the state’s worker safety regulations. As a state-run OSHA plan, Kentucky’s worker safety regulations must be “as effective as” the federal standards.

The board is chaired by Labor Secretary Larry Roberts. Beshear appointed 12 members, representing industry, agriculture, safety and health and labor.

Bevin abolished the OSH Standards Board through executive order and transferred all of its powers to the labor secretary. Beshear, who was the attorney general at the time, and Senate Democrats called for the board to be reinstated.

The labor secretary at the time, David Dickerson, wrote in a July 2018 letter to Senate Democrats that disbanding the board was “consistent” with Bevin’s agenda “to eliminate ‘business as usual’ in Frankfort, to implement meaningful and reasonable reforms to the size and scope of state government and to serve the people…through more economical and efficient means.”

A November 2018 KyCIR investigation found that Kentucky’s OSHA agency had failed to properly investigate nearly every workplace fatality in a two-year period. Inspectors often failed to interview eyewitnesses, ignored worker safety violations and, in some cases, improperly blamed the deceased employee for the incident.

(Read the investigation, “Fatal Flaws: How Kentucky Is Failing Its Workers“)

KyCIR reported that Kentucky was facing potential federal action for these, and other, shortcomings in its state-run OSHA program. When Bevin disbanded the OSH Standards Board, Beshear questioned whether it could violate the state-federal agreement and incite further action from the feds.

Dickerson said it would not.

In the wake of that investigation, the state promised salary raises, additional training and new equipment for inspectors. House Minority Leader Rocky Adkins, now senior advisor to Beshear, proposed a bill to reinstate the OSH Standards Board during the 2019 legislative session. It died in committee.

“It’s important to have that board in place,” Adkins told KyCIR in February 2019. “I think it sends a strong message across Kentucky that we are here for a safe workplace, we demand it and it’s a priority.”

Donna Ringo, a former member of the board and a safety and health consultant, applauded the reinstatement of the board. She said a board made up of people from different areas of expertise is more valuable than vesting that power in one person.

She said she had been alarmed by some of the deregulation efforts she saw under Bevin, and hopes this is the beginning of Beshear’s efforts to reinvest in worker safety.

“The cost of cleanup of a problem that you ignore is so much more expensive that the cost of regulation,” Ringo said. “It’s always easier to put in place systems and regulations so people don’t get hurt.”

Punished: Louisville Teens Charged As Adults Are Almost Always Black Monday, Jan 6 2020 

Aunts and uncles, cousins and friends — Aunt Cookie! Grandaddy Glen! — multiply every few minutes, compressing hip to hip on couches. Earlier, the gift of a ’97 Buick from his dad. And a rodeo of a March storm has left a rainbow over the Shawnee neighborhood in west Louisville. As far as 18th birthdays go, Tracey Wilson Jr. is having a good one. And he knows it.

A little more than a week earlier, Tracey sat alone in his white cinderblock room at the Louisville Youth Detention Center downtown, dreading how his birthday may unfold. When he turned 18 at midnight, he would be escorted out. Officially an adult, he could no longer be housed with juveniles. He’d get loaded into a Metro Corrections vehicle that would drive around the corner and deposit him into the “adult jail,” a place Tracey could only imagine is all edges and land mines, especially for a wiry, 5-foot-8 newbie.

Tracey had been arrested several months earlier, in October 2018. He was charged with robbery in the first degree, a class B felony. According to the Louisville Metro Police Department, Tracey acted as a lookout while two others robbed a convenience store at gunpoint. Tracey didn’t use the gun. Still, Kentucky law dictates that any juvenile, age 14 or older, who is involved in a felony with a firearm automatically gets bumped from juvenile court to adult circuit court. Though Tracey was 17 at the time of the alleged crime, he was charged as an adult and became known to the system as a “youthful offender.”

Experts and advocates say that process is harmful, and that the penalties youth face when charged as adults escalate the likelihood of failure later. In Louisville, this process captures black youth almost exclusively.

According to data from the Administrative Office of the Courts, 126 individuals were charged as youthful offenders in Jefferson County from 2016 to 2018. One hundred and seventeen of them — 93 percent — were black, and the vast majority were male. Black youth account for about 27 percent of Jefferson County’s population younger than 18.

Robbery in the first degree (robbery committed using physical force, a weapon or the threat of physical harm) is the most common felony that pushes black juveniles into the adult system in Louisville. (Murder, assault and wanton endangerment are examples of other charges.) Of those 126 youthful offenders, 54 black youth faced a robbery charge compared with two white youth and one Hispanic youth in the same time period.

J. Tyler D

Tracey Wilson and his mother, Mitzi Wilson, take a picture during Tracey’s birthday party.

Tracey, who has a thin mustache and an often-skittish energy, weaves through his birthday party, joking with friends, eating hot wings and scrolling on his phone. A few days before Tracey’s birthday, the organization Black Lives Matter and the Louisville Community Bail Fund each contributed $5,000 and handed a $10,000 cashier’s check to the circuit court clerk, posting his bond. He’d been in custody for five months, his family without the means to pay the bond themselves.

In the weeks leading up to his birthday, Mitzi Wilson, his mother, lost sleep. He’s not “mentally ready” for the “big jail,” she said. On the afternoon his bond was paid, she and her youngest son, Tré, hung around the courthouse for hours anxiously awaiting Tracey’s release. Tré, a curious 11-year-old, listened closely as his mother and a woman who’d come to support the family discussed how the process would go. In a quiet moment, Tré looked up at his mom, an urgent thought behind his light-brown eyes. “Mama, you know what I just figured out?” he said. “We are going to bond (Tracey) and (he and I) haven’t really bonded together.” Tré had last seen his brother at Christmas.

A short time later, in the youth detention center’s waiting room, with the heavy click of a door designed to keep people in, out came Tracey wearing a shy smile, a plastic bag of clothes slung over his shoulder. Tré squealed. Mitzi leapt to her feet. “Look who’s a free man!” she cheered, fighting back tears. Tracey walked outside and gulped the 40-degree air, shivering. “This is my first time outside. I’ve been here since October,” he said. “I’m joyful.”

A week later, on the evening of his March 14 birthday, his family cocoons him as they get ready to blow out candles and slice into a sheet cake with a photo of Tracey as a newborn and “Happy 18th Birthday Tra-Tra” in blue icing. Three, two, one. Happy birthday to you. Cha, cha, cha….

Eighteen years old. It’s an age teens eagerly drift toward, for the promise of freedom and independence. But for Tracey and his family, adulthood sprung early and hit hard. Though he no longer waited in lockup, he still faced a robbery charge that could carry a sentence of ten years in prison. In Kentucky, with Louisville as the state’s largest city, Jefferson County sends the most black juveniles into adult court. But Louisville mimics a pattern seen across the nation and across Kentucky.

A Kentucky Center for Investigative Reporting analysis of youthful offender cases across the state, dating from 2014 to 2018, found that nearly 80 percent of the youthful offender cases stem from Jefferson or Fayette County, home to the two largest cities. But in parts of the state with much smaller black populations, disparities persist: In virtually all metro areas and even in Appalachia, where the population is 80 percent white, black youth are charged as adults more often than their white counterparts. That’s not just in rates, but in raw numbers. Only in non-Appalachian rural counties are more white youth charged as youthful offenders.

Racial disparity in the juvenile justice system troubles many Kentucky legislators, Republicans and Democrats alike. Making change, particularly when it comes to youthful offenders, though, is a hard sell. Kids transferred to adult court are charged with serious offenses, often involving guns. There’s a long-held belief that violent crime deserves scare-’em-straight punishment. That so many black youth wind up charged with violent crimes, well, that’s merely a symptom of chronic societal conditions, the thinking goes. “There’s still a strong mindset out there that ‘get tough on crime’ works and that racial disparities have nothing to do with racism,” says Amanda Mullins Bear, managing attorney for the Children’s Law Center, a Lexington-based youth-advocacy organization. “Neither of which are true.”

Scientists have largely demystified the adolescent brain. They know it’s not fully wired for reason and impulse control, and that it’s highly attuned for reward and peer approval. This can lead to poor decisions. Parents, teachers and much of society understand that, and extend some grace when youth mess up, though it’s less likely if you’re black or brown. Look at school suspension rates, arrests, juvenile incarceration rates and sentencing outcomes: Black youth emerge as the ones facing the harshest penalties.

One morning after a court hearing for her son, Mitzi Wilson vents. She wonders: Isn’t there a juvenile system for a reason? Tracey didn’t even have a juvenile record before this incident. She says he’s a “good kid for real,” who sometimes mixes with those who are a bad influence. “I’m like, how do you be a juvenile and they charge you as an adult?” she says. “And then the more and more I kept going to the (youth detention center) to visit (him), the more and more I kept hearing parents saying that their kids have circuit court. How?”

Mandatory Transfer Emerges Amid Juvenile Crime Boom

J. Tyler Franklin | wfpl.org

Age draws necessary lines for all sorts of reasons — doses of medicine, when to enter what grade. In 1899, America acknowledged that age should also determine how kids are punished for crimes. Up until then, juvenile status didn’t exist. Kids were mini-adults, tried and doing time alongside adults. In the late 1800s and early 1900s, a progressive push encouraged lawmakers to accept that children often committed crimes due to need, be it for money or food. And incarcerating children with adults encouraged vulnerable minds to absorb the criminal behavior around them. In 1899, Illinois created the first juvenile court.

A pivot toward compassion and rehabilitation meant judges no longer simply pinned a sentence on a kid based solely on the crime. Instead, judges had heaps of discretion, creating individual punishments for every child. And in 1974, the federal Juvenile Justice and Delinquency Prevention Act established standards for how to treat kids charged with crimes, focusing on rehabilitation and reintegration programs. Still, black youth didn’t benefit from these changes like their white peers. For decades, juvenile facilities had been segregated. “Back in the day, white kids are being rehabilitated or reformed and they were being taught trades and things like that. Black kids were not,” says Cherie Dawson-Edwards, a University of Louisville professor who researches race and the criminal justice system. “(Black kids) were in more punitive environments. So this isn’t new stuff.”

In the 1980s and ’90s, attitudes about juvenile justice shifted. As violent crime spiked nationwide, skepticism of the juvenile system grew, a chorus of influential voices deeming it too weak. Hillary Clinton’s use of the term “superpredators,” in reference to youth involved in serious gang activity, caught on and drifted, hardening the public view of child offenders, particularly kids of color.

Between 1992 and 1999, nearly every state reacted with laws that made it easier to charge juveniles as adults for serious offenses. In 1996, the Kentucky legislature passed an automatic transfer, or mandatory waiver, law. That’s the law that bumped Tracey Wilson into adult court because of his alleged complicity to the robbery that involved a gun.

Other paths can take a child into adult court. Kentucky law permits juvenile court judges to allow youth to face charges in circuit court if they feel the alleged crime warrants transfer, and that it’s in the best interest of the public and the juvenile. For instance, if a youth is charged with something like rape or a stabbing — or throwing rocks at a sheriff’s deputy patrol car, causing the deputy to wreck, as was the case for two Boyle County teens this past spring — they can be tried as adults. But for mandatory transfer offenses, all discretion is gone.

The mandatory transfer law has sent Tracey and hundreds of other juveniles across Kentucky into adult court, and they’re mostly, disproportionately black. While black youth make up 11 percent of the juvenile population statewide, they represent 57 percent of youth transferred to adult court.

While juvenile records are private, getting tried as an adult means the offense becomes public record. Landlords and employers can easily trace past mistakes.

Lana Fazio, the deputy chief for the juvenile division of the Louisville Metro Public Defender’s office, calls it “egregious” that, for some kids, one bad decision can carry such a heavy toll. “You’re looking at a 14-year-old child, and you are telling them that if we go to trial, and we lose, you’re not getting less than ten years,” she says. “They have no idea. Their life is kind of over before it begins.”

Republican state Sen. Whitney Westerfield used to work as an assistant commonwealth’s attorney in Christian County from 2007 to 2012 and handled several youthful offender cases. Now, as a Republican legislator, he opposes mandatory transfer. “I think you’ll find that there is probably a consensus amongst the bench, the prosecution and the defense bar that are opposed to it,” he says, adding that, in his experience, mandatory transfer can on occasion make those in the courtroom feel like their “hands are tied.”

Mike O’Connell, the Jefferson County Attorney, believes the law “doesn’t work.” His office handles juvenile cases that stay in juvenile court. He says that a “one-size-fits-all” approach isn’t “best for every youth that is a certain age and does a certain stupid, malicious, crazy thing.”

But in the Office of the Commonwealth’s Attorney in Jefferson County, where youthful offender cases are prosecuted, mandatory transfer is embraced. “I would say it is the one thing we’re doing right in the juvenile justice system,” says Critt Cunningham, the juvenile crime liaison with the Office of the Commonwealth’s Attorney. “If you have any hope of curbing gun violence, you have to be consistent with your message that it’s wrong and it’s going to have serious consequences.”

J. Tyler Franklin | wfpl.org

Tracey Wilson

From 2016 to 2018, 111 of the youthful offenders in Louisville whose race was known were black males. Seven were white males. Six were black females. There were no white females. Cunningham says it’s unfortunate that some predominantly black Louisville neighborhoods are “rougher” due to “historical factors.” All his office can do, Cunningham says, is do their jobs fairly.

In the adult system, sentences are longer. Because of the serious nature of the offenses, juveniles often end up with high bonds. Like Tracey Wilson, who sat in custody for five months, charged youth often wait in detention centers as their cases navigate the court system. Amanda Mullins Bear of the Children’s Law Center says stability, connections to the community and consistent education are among the most important factors in keeping a juvenile from repeating criminal behavior. “When you’re in a facility for a long time, those things just aren’t present,” she says.

Exposure to the adult system likely frightens many juveniles. It doesn’t necessarily forever steer them away from crime. A policy brief from the Children’s Law Center points to research, which shows that “on average children prosecuted as adults are 34 percent more likely to commit additional felony offenses than children who committed a similar initial offense but remained in the juvenile system.” Mullins Bear says one study that tracked youthful offenders over several years found that robbery offenders specifically tended to reoffend, and did so more quickly than youthful offenders charged with similar crimes. “If this research is correct, then we are sending all these kids who are charged with robbery (into the adult system) and increasing their likelihood of reoffending,” she says.

‘That victim is still a victim’

When teens commit serious crimes, particularly if they’re nudging close to adulthood — 16- and 17-year-olds — there’s a murmur, a gut feeling among some, particularly law enforcement, that many know better. (In Jefferson County, of the 126 youthful offenders between 2016 and 2018, 81 percent were 16 or 17 years old.) “They’re 15-, 16-, 17-year-olds committing gun crimes,” Cunningham says. “None of them are unaware that they’re not supposed to have a gun or that it’s dangerous or that people could lose their lives.”

Cunningham argues that Kentucky does a good job ensuring juveniles charged as adults remain somewhat insulated. A few states put youthful offenders in an adult jail or prison setting, but Kentucky waits until they turn 18. And while adults lose the option of probation for certain violent offenses, as a juvenile, probation remains on the table regardless of the charge. Lastly, Kentucky re-sentences the youth once they turn 18. So a prison sentence could soften if a judge determines that a juvenile shows promise.

Sitting in his office on the second floor of a brick building across the street from the jail downtown, Cunningham lists two cases he has prosecuted: a 15-year-old who he says strapped on a bulletproof vest and shot at a kid across the street, and one in which the chaos of a drive-by shooting resulted in a kid accidentally shooting his best friend in the head.

Given the violence, the weight of some juvenile crimes, Cunningham says shielding kids from tough consequences seems illogical. “The juvenile justice system isn’t a standalone system,” he says. “It’s built into the larger criminal justice system. Do you want someone that’s shooting at people sent to a (juvenile) facility for three months and then leave? There has to be something you can do to protect the community.” Gun crime, he says, is a “line in the sand,” an action you “can’t allow to happen.”

It’s a sentiment shared by the Louisville Metro Police Department, which cites curbing gun violence as its top priority. “The person who has died at the hands of a 16- or 17-year-old is no different than the person who was murdered by a 25-year-old or 40-year-old,” says Jessie Halladay, an LMPD spokesperson. “That victim is still a victim.”

Those pushing for juvenile justice reform agree that serious crimes demand a firm response. They just can’t dismiss that other line in the sand: that anyone younger than 18 is still considered a juvenile. “Is it a tough call when it’s a 17-and-a-half-year old? Sure it is,” Westerfield, the state senator, says. “We tend to think that kid knows a lot more about what they’re doing than a 10-year-old kid does. But as long as we still believe that kids are kids, we’ve got to tailor our response to reflect that.”

Dawson-Edwards, the U of L professor, knows that black children march into adult court more frequently than white kids. That it’s expected and blends into the background, that doesn’t surprise her either. “There is increasing research that talks about the adultification of black kids,” she says, referring to the case of Tamir Rice, a 12-year-old boy in Cleveland who was shot by police in 2014 after being spotted playing with a toy gun. “The person who called (him) into the police said it was a young adult male, a black male, and he was 12. With the adultification, whether it’s with black boys or black girls, there’s an expectation that you are more culpable or responsible, or you should know better. There’s an application of adulthood on them, which makes what they did seem worse. Because you’re not applying that same youthful lens to them as you are to white kids. So they seem more threatening.”

In recent years the American Bar Association has recommended that children be tried as juveniles, with a focus on “rehabilitating rather than punishing,” just as the juvenile system intended when it was first created more than a century ago. In the past 15 years, the U.S. Supreme Court has affirmed the differences between children and adults, ruling the death penalty and mandatory life without parole unconstitutional for children under the age of 18 due to their “lack of maturity and an underdeveloped sense of maturity.”

Kate Howard | wfpl.org

A relative smears cake frosting on Tracey Wilson outside at his birthday party.

That movement is largely due to advances in brain science. Neuroscientists have discovered that the juvenile brain is not fully developed until a person reaches their mid-20s. Each individual matures at their own pace. Neglect in early childhood can hinder brain development. Exposure to violence and trauma can wire the brain for heightened anxiety, even aggression. No matter the particulars of childhood, all juveniles lack a fully developed prefrontal cortex, the part of the brain that allows us to pause and reflect, delaying a possible bad decision. In the teenage years, the social and emotional system of the brain rapidly blooms, faster than cognitive control, setting up a phase in which adolescents take risks, seek peer approval and leap on and off emotional cliffs.

Robert Walker, a retired University of Kentucky assistant professor in the department of behavioral health, says of course teens grasp that guns pose danger. “Do they understand the meaning of death? Do they understand what harm does to people? Do they understand what ramifications this does to a life and themselves?” Walker asks, rhetorically. “The answer is no.” Teens need punishment for serious offenses, he says, but he casts holding the juvenile brain to adult standards as “totally nuts.”

Dawson-Edwards says automatic transfer to adult court dismisses both what we know about the teen brain and teen culture. They’re social creatures, often filling time and space in groups. “One of the philosophies for punishment is deterrence. That’s great for adults,” Dawson-Edwards says. “But for young people, there’s not a lot that deters them. They don’t think consequentially enough to say: ‘Oh, I better not go to the store with my friend who’s with his friend that I don’t know, because what if he has a gun?’ They’re not thinking that far. Some of the things we apply to youth we get from the adult justice system and it just doesn’t make sense.”

Late on the morning of Oct. 18, 2018, Tracey Wilson says he went to the West End Market, a now-closed convenience store in a brick building at the corner of 20th and Bank streets, for ice cream and a box of “blacks” (cigarillos). He should’ve been at Liberty High School, an alternative school off Preston Highway, but he had stopped going regularly. Tracey says he spoke to two boys at the store for several minutes, the same boys who committed the alleged armed robbery. When they rushed the clerk, Tracey says he ran out, only to U-turn and look through a store window. Curiosity got the best of him, he says.

“I was like, is this really going on? They really robbing this store?” Tracey says.

The store clerk, Anthony Hill, remembers it differently. He says he noticed Tracey in a corner of the store talking to two individuals who had hoods tied tightly enough to cover everything but their eyes. When the only other person in the store, a Little Debbie delivery man, went to his truck, Hill says Tracey slipped outside the door and stood watch. Hill says one of the boys pointed a gun at him and demanded money while the other boy scooped up bongs from a display case. “I wasn’t really scared,” Hill recalls. “Just mad.”

Tracey’s face wasn’t covered, and he was a regular customer. He returned to the store the next day. It wasn’t hard for police to identify him as a suspect. Four days after the robbery, as Tracey walked in the Portland neighborhood with a friend, police stopped him, took him in for questioning and ended up arresting him.

Only Tracey and the two other boys walked the timeline of the robbery, and only they know the texture of every decision and detail. No matter his level of involvement, no matter the outcome of his case, Tracey was now in the gears of a system that processes Tracey after Tracey after Tracey.

It’s worth noting that in 2014, Kentucky passed a major juvenile reform bill that greatly scaled back arrests of youth for misdemeanors and other low-level offenses, like truancy or running away. But the reforms largely benefited white youth, who tend to be older when they pick up their first charges, and those charges tend to be less serious. As the overall number of arrests shrunk, instead of putting a dent in the racial disparity of who’s getting arrested and locked up, the reform put a spotlight on it. LMPD data from 2014 shows that 3,000 juvenile arrests were made and that 65 percent of those arrests were black youth. In 2018, LMPD arrested fewer than 2,000 juveniles. Sixty-eight percent were black.

Halladay, the LMPD spokesperson, says many officers recognize that past policies, like redlining, have structured largely black neighborhoods with pockets of violence and poverty. But when a crime happens, she says, police can only respond to the matter at hand. “Our job is to determine whether there’s probable cause to believe a crime was committed under the law,” she says.

Tracey’s Shawnee neighborhood is one that LMPD saturates in an effort to fight crime. In 2018, LMPD made its highest total of juvenile arrests — nearly 400 — in the Second Division, an area that includes the Park Hill, Shawnee, California and Chickasaw neighborhoods in west Louisville. The Fifth Division, which circles Crescent Hill and much of the Highlands, totaled about 61 juvenile arrests.

“If you look for things in a certain part of town for certain young people, that’s where you’re going to find them,” Dawson-Edwards says. She adds that while most childhoods in Louisville are preserved, violence can shape the lives of juveniles living in high-crime areas. “If you live in a neighborhood that has violence, you want to feel protected,” she says. That may mean keeping a gun close by. Mistakes can strike depending on when and why the gun is used. “I’m not an expert on the prevalence of youth having firearms, whether they’re black or white,” she says. “But there’s context to all of this. And our system is not designed always for context, even though if any system should be, it would be the juvenile (system).”

Hill, the clerk who was robbed, worked at the market on 20th and Bank for nearly ten years. The incident in October 2018 was the first time he was held up. But he says the problem of armed youth is real. He sees it. Still, when asked about that day, and if Tracey’s involvement in the robbery merits a possible ten-year prison sentence, he shrugs. “Maybe not that much time,” Hill says, pausing. “Sometimes that’s what it takes. I don’t know.”

After Murder, An Adult Charge And A Second Chance

Understandably, justice stiffens, broad-shouldered and severe, when there’s a murder, whether the accused is an adult or a kid. In mid-August 2016, 14-year-old Da-Airra Hayden had just completed her first week of high school. It would be her only week of high school. In the early-morning hours of Aug. 16, she allegedly shot and killed 53-year-old Larry Pope. A 19-year-old friend was involved in the incident as well.

Pope apparently picked up the girls at 26th Street and Broadway at 2:30 in the morning. They drove to an alley in the Shawnee neighborhood. At this point, the strands split. It may have been a drug transaction gone sideways or the girls attempting to rob him or, as Da-Airra and her lawyer would argue, an act of self-defense against Pope after he threatened to kill the girls. (Prosecutors vigorously refuted this claim in court.) At about 3 a.m., shots were fired. Pope, who was unarmed, died, his foot still on the gas pedal. The tires of his blue Lincoln spun and smoked upon slamming into a fence and trees.

By the evening of Aug. 16, Da-Airra was arrested. Police interrogated the 14-year-old several times over the course of 18 hours, her parents unaware of what was going on. A lot was going on. Within the first hour of questioning at police headquarters, Da-Airra, who has type I diabetes, stated that she was feeling sick and needed water. Court records show a detective returned with a soda that spiked her blood sugar to levels in which headaches and nausea can occur. EMS arrived and transported her to Kosair Children’s Hospital. The interrogation continued.

Da-Airra’s parents, DaRon and Levonda Hayden, received calls from Kosair. On the morning of Aug. 17, they say they went to the hospital and tried to see their youngest daughter but were told they could not because she was in police custody. “We’re hearing rumors from Facebook that a 14-year-old had shot somebody,” her father recalls. “Then I get a call that my truck was found in the area of where it happened. So we’re putting two and two together.” (Da-Airra had stolen her father’s truck a few days prior to the shooting.) Police are supposed to notify parents upon a juvenile’s arrest and detain that child for no more than two hours; a court official can extend the window another ten hours in certain cases. In Da-Airra’s case, a judge ruled that extra time was never authorized.

Regardless, she was charged as an adult for murder, largely based on incriminating things she said to police over those 18 hours. Between the years of 2016 to 2018, one white youth in Louisville was charged with murder, compared with 24 black youth. Da-Airra’s bond was set at $75,000, too high for the family to afford.

Da-Airra’s parents feared this coming. At about eight years old, their little girl who loved basketball and dancing withdrew. A grandmother she was close with and occasionally lived with died. Soon after came her diagnosis of type I diabetes and regular trips to the hospital due to complications. Something new and difficult stirred within her, her father recalls. Her mother says, “One time she took Mace to school and Maced a girl and the whole school had to get shut down.” By 13, Da-Airra was stealing cars, routinely skipping school and running away from home. “There was nothing we could do to stop her,” her mother says. “It was one thing after another.”

Da-Airra struggled with depression. Her parents say they tried to get her mental-health treatment and enrolled her in a number of support programs. Listening to them talk about their daughter and the murder, it’s apparent they love her, but hope deflated long ago. For a parent, that’s a ragged place to land. When asked what might help Da-Airra, her mother unclasps her hands, throws them upward and presses them back together. “I don’t know,” she says, softly.

For a while, Da-Airra’s parents say, things were going well. After a new judge was assigned to their daughter’s case, and after two years locked up in a juvenile facility, Da-Airra pleaded guilty to murder and manslaughter. She was sentenced to five years of probation. While in the youth detention center, she had earned her high school diploma and, this past summer, her father says, she was working at McDonald’s, then UPS. She had arranged to go to Gatlinburg, Tennessee, for a fall trip with her family. But in late August, she was arrested again.

According to LMPD, Da-Airra, another juvenile and an adult friend went on a two-day robbery spree, arranging to sell items with somebody online, only to meet them in person and rob them at gunpoint. Because the new felony charges involved a gun, they were automatically transferred to circuit court. “The judge told her, ‘If you get in trouble again, you’re going to do ten years,’” her mother recalls. “And she chose to get with the wrong people.”

Da-Airra’s parents believe their daughter deserves punishment, especially for what happened to Pope. (Pope’s wife declined to be interviewed.) “It’s horrible what she did,” her mother says. “You just don’t get no worse than that.” They weren’t surprised when she was charged as an adult for the shooting.

They believe that in that alley, gun in hand, heated words exchanged, it was an equation too big for the moment. Maybe Da-Airra panicked. Her father says it feels like, if you’re black, there’s no room for error. “If you put the same circumstances — the man, his age, a [53]-year-old man trying to pick up a teenage white girl, 14 years old, in the alley, and that white girl defended herself? Deal would’ve been squashed. It wouldn’t have went as far as it went,” he says. “She wouldn’t have had to do no two years. She wouldn’t have been locked up. And that’s the difference.”

That so many black youth end up in the adult system doesn’t surprise anyone familiar with criminal justice. “I think the system is doing what it was designed to do,” says Keturah Herron, the ACLU of Kentucky’s juvenile justice field organizer. She agrees that draping the problem on society makes sense. “Our communities and our government say we’re going to put all these dollars in police in these communities, but we’re not going to put money to make sure that these kids have community centers, make sure that they can go swimming in the summer, make sure that (if) there was a murder on this block, we’re going to make sure that this block has therapeutic services,” she says. “If you don’t put money into people, into neighborhoods, then the same things are going to occur.”

Conversations about racial disparity often turn brittle, impossible. How do we begin mending the past 400 years, the legacy of slavery, racist policy, the whole of black life in America? There are those who call for demolishing the entire criminal justice system as we know it and starting from scratch. More moderate advocates say not to underestimate the impact of information and policy.

When state Sen. Westerfield worked as a prosecutor in Christian County, the disproportionality of black youthful offenders was not something he was aware of. Each case was handled individually, one story at a time. Once he became a policymaker and was presented with research on the number of incarcerated black youth and youthful offenders, the magnitude of the problem hit. “Once you’ve seen the data, you can’t unsee it,” he says. In his region of western Kentucky, more than twice as many nonwhite youth were charged as youthful offenders than white youth, state data shows.

Westerfield believes in juvenile rehabilitation, specifically pointing to successful programs in other states he has visited, in which there’s an emphasis on therapy, job training and unconditional support, even for the most violent offenders. “Ultimately, I subscribe to the Frederick Douglass quote, ‘It is easier to build strong children than to repair broken men,’” Westerfield says. A majority of kids charged as adults will end up back in the community at some point, after all.

For the upcoming legislative session, he’d like to see Kentucky implement a minimum age of criminal responsibility. As it is now, kids as young as 7 years old have been charged with a felony in Louisville, according to police data. Westerfield would like to make it so that only juveniles who’ve committed crimes against people, not property, would wind up in circuit court. (This wouldn’t affect Tracey’s case and all the other armed robbery cases; that’s considered a crime against a person.)

In December, with a month to go before the legislative session begins, Westerfield has mandatory transfer on his mind. He’s not sure when or if he’ll introduce a bill that would wipe it from the books, but there are numerous changes he’d like to make to the juvenile justice system, and he knows he won’t be successful if he introduces too many at once. Eventually, he’d like to return discretion to juvenile judges, giving them time to learn about each case, about each kid before deciding if transferring a juvenile to circuit court is best. Mullins Bear, of the Children’s Law Center, agrees that erasing mandatory transfer would benefit youth.

“Whether giving the judges more discretion is going to reduce disparities,” she says, briefly pausing, “time will only tell.”

A Plea Entered, But The Case Isn’t Over

It’s about 9 in the morning on July 11, the time of day at the Jefferson County Judicial Center when attorneys move with great purpose but the rest of the place yawns, reluctant to wake. Tracey walks in, a jolt of energy. “I’m great,” he announces. Dressed in khakis and a blue-and-white checkered shirt, he’s sure a few girls just drifted glances his way. “They was looking at me,” he says with a smirk.

All spring and into summer, Tracey has been weighing whether or not to fight his robbery charge or take a plea deal. Still unsure what to do, he needs to decide before the morning’s pre-trial hearing. He admits, “On the outside, I’m smiling. But I know inside I’m nervous. I feel it in my guts.”

According to data from Louisville Metro’s Juvenile Justice Advisory Committee, of the 126 youthful offenders in Jefferson County from 2016 to 2018, only two went to trial for their offenses. Both were acquitted. Prosecutors or judges dismissed about a dozen cases, but most youth wound up pleading guilty to either original or amended charges.

Over the next hour, Tracey paces, circling from family and friends over to a bench with his public defender, then back again. One minute he is talking about hiring a private attorney and going to trial, only to later lean toward the plea. There’s surveillance video of him talking to those boys. That could persuade jurors that he was in on it, he worries.

If a jury finds him guilty, Tracey could spend a part of his 20s in prison. Five months confined at the youth detention center was enough. “I don’t like the fact of being caged,” he says. A friend who has attended all of Tracey’s hearings tries to help him move toward a decision. “What if in this situation there is no right answer?” she asks. “What if it’s just whatever you pick?”

As part of the plea, Tracey is supposed to talk further with detectives about the robbery, perhaps to help identify the other two suspects. Mitzi Wilson, Tracey’s mother, bristles, worried this could put her son in danger. “In the long run, if you do snitch on people and it comes out in the motion of discovery, or you have got to be the one to testify…” she says, trailing off. Tracey has already been shot. In fall 2018, early one morning as he waited for his school bus, someone drove by and shot at him, hitting his wrist. Nerve damage keeps a few fingers on his right hand curled inward.

The plea offer is tempting. Prosecutors would amend his robbery charge to a lesser felony. He’d have to serve five years diversion, essentially probation that ends with the felony dropped from his record as long as he does not commit another offense and doesn’t test positive for alcohol or drugs over those five years.

For about 10 minutes, Tracey rambles, his body knotted up and fidgeting. Five years.

He’ll need to cut out a few friends. What if he screws up? Police patrol his neighborhood heavily. Just walking around can attract attention. “Every time they come up to me, they say I fit a description,” Tracey will say later. “I always fit someone’s description.” But the plea does feel like closure. No juries. No surveillance video. Maybe no felony record, if all goes well.

It’s impossible to know exactly how juvenile court would’ve resolved Tracey’s charge. It may have resulted in a few months in a juvenile detention center or a treatment facility often referred to as “camp.” Time in the state penitentiary would not have been a possibility.

By about 11 a.m., Tracey’s in front of circuit court judge Angela McCormick Bisig.

“How do you plead?” Bisig asks. “Guilty or not guilty?”

“I plead guilty,” Tracey says.

In the back of the court, his mother lets out a sigh. Her eyes drop; her heart follows. You don’t have nothing to do with it, she thinks. She didn’t want him to take the plea. “But it was his decision,” she’ll later say. He is now an adult. The plea deal recommends he talk to detectives, but it does not request that he attend a job-training program, or counseling, or school. Tracey signs the paperwork, neatly printing his name.

As his hearing ends, Bisig catches Tracey’s eye and leans forward.

“You have the ability to move forward from this, this incident and this very serious felony charge, and your lawyer has set you up to do that,” Bisig says. “You have got to make very smart decisions these next few years.

“You can’t make stupid mistakes like some other young men your age might be at liberty to make because, if you lose the diversion program, you’re going to lose the opportunity to move forward with a clean record.

“I always think the 30-year-old you would tell the 18-year-old or 20-year-old you: ‘Don’t mess this up for me,’” she adds. “Mr. Wilson, I do not want to see you here with any violations of your diversion.”

“You won’t,” Tracey says. “I promise.”

A week before Christmas, at 8:45 on a Tuesday morning, police pull up to a two-story home with a long driveway on Northwestern Parkway, in the Portland neighborhood. They see a gray Dodge Caravan, its doors open, the engine still running. The officers are certain it’s the stolen car they’re looking for. The Caravan’s owner had been tracking it with a GPS device once someone drove off with it, leading officers to this driveway.

Police eye two men. One is in his late 20s. The other is Tracey.

According to the police citation, Tracey says he was in the back seat of the car looking for tools as the older man removed the car’s stereo. Tracey is charged with a felony: receiving stolen property in the amount of $10,000 or more. This likely violates his plea deal. How this will unravel, the justice system will decide in the weeks and months ahead.

On that Tuesday morning, police arrest both. Tracey is booked into the adult jail.

Note: This story was reported in collaboration with Louisville Magazine and is featured in the January edition.

KyCIR In 2019: Our Year In Investigations Friday, Dec 27 2019 

In 2019, the KyCIR team broke news on politics, horse racing, criminal justice and more. Take a look back with us at some of the year’s biggest and most impactful investigations.

Criminal Justice

For Louisville Offenders And Victims Alike, A New Label: ‘Public Nuisance’

Louisville’s public nuisance ordinance is intended to provide a way to bust up drug houses and crime dens. But police and code enforcement officials have been increasingly focused on residential locations where crimes are reported — regardless of whether the victim or the offender lives there.

Kate Howard | wfpl.org

Reporter Jacob Ryan found examples where grieving families were issued nuisance violations after a murder or fatal overdose. Domestic violence victims got violations after calling police for help. And city officials encouraged landlords to evict drug users who committed minor offenses.

Louisville Metro Police Department and city code enforcement officials have vowed to examine how they’ve been using nuisance violations, particularly when it comes to victims of crime. 

Conviction Or Not, Seized Cash Is ‘Cost of Doing Business’ In Louisville

J. Tyler Franklin | wfpl.org

Theron Carson sits with his daughter watching cartoons. Police seized money from Carson after smelling marijuana coming from his apartment.

Kentucky law allows law enforcement agencies to keep the cash seized by officers: 85 percent goes to police and 15 percent to prosecutors. Critics say these laws create a perverse incentive for police to seize, which they can do whether or not they bring criminal charges as long as they’ve got reason to believe cash is related to drug trafficking.

Ryan dug into the use of asset forfeiture and found that seized money provides leverage in resolving drug trafficking cases and has become an ingrained aspect of the justice system in Louisville. When officers seize money, they’re required by law to use it for direct law enforcement purposes. But Ryan reviewed $3.7 million in spending records and found that agencies take varied interpretations of that law.

Louisville Police Expected A Grow Operation. They Found Christmas Lights.

Jacob Ryan

“I feel like I’ve been victimized,” Evans said in the wake of the police’s raid of his home.

Officers said thermal images showed a heat signature “indicative of cultivating marijuana” at Tyrone Evans’s house. When they returned a few days later, early in the morning on New Year’s Day, they did not find any physical evidence of a “grow” operation. Instead, they found Christmas lights. Evans and his family were traumatized by the police search. 

KyCIR intern Jewél Jackson examined this case and LMPD’s use of helicopters and thermal imaging to find suspected grow houses. 

Sexual Assault Investigations

Illustration by Carrie Neumayer

Prosecution Declined

LMPD asks prosecutors to review their rape cases and decide whether they should make an arrest. More often than not, the prosecutors say no. In this yearlong investigation — the subject of the first season of Dig — we share what reporter Eleanor Klibanoff learned: here, the police defer to prosecutors on rape cases, and prosecutors reject the vast majority of cases presented to them. It’s a very different system than most similar cities, where the police decide who to arrest. 

In Louisville, our investigation found, most people accused of rape here will never face consequences. Most won’t be arrested or convicted. And the case will be closed anyway.

Though many local politicians saw cause for concern in our investigation, Mayor Greg Fischer said he’s “confident” LMPD is prioritizing justice for rape victims.

Lacking Sexual Assault Nurses, Some Ky. Hospitals Illegally Turn Victims Away

Klibanoff shined some light on other issues related to sexual assault. She learned that some emergency rooms were turning away rape victims, in violation of state law, when they didn’t have a specially trained nurse on staff. And Kentucky has essentially created a new backlog of rape kits while clearing out the old backlog: kits are averaging seven months to testing.

Government and Politics

Former Staffer Alleges Sexual Assault, ‘Nearly Daily Touching’ By Ky. Rep. Jeff Hoover In Sealed Deposition

Ryland Barton | wfpl.org

Jeff Hoover

Early this year, reporters R.G. Dunlop and Ryland Barton obtained a document few people outside the statehouse had seen: the sealed deposition of a former legislative staffer describing in detail what she called sexual harassment and assault by the then-Speaker of the House, State Rep. Jeff Hoover.

The deposition included new details about the staffer’s allegations against Hoover and a few other Republican legislators that led to a secret settlement, an ethics investigation and resignations. Three legislators filed a lawsuit against the staffer, Marissa Espinosa, alleging she disclosed details of a secret settlement dealing with the harassment allegations. They dropped the suit in September.

With Race Horse Deaths Under Scrutiny, Kentucky Keeps Details Secret

Equibase

A still image from a video of the May 16 race, where Kinley Karole started slow out of the gate.

Kentucky is widely considered to be the center of the thoroughbred horse-racing world. But reporter Caitlin McGlade found in a story this June that our state was among the most secretive when it comes to horse deaths. 

A Horse Racing Commission official cited a Kentucky state law that protects competitive information from disclosure in refusing to turn over details from the necropsies, and said releasing that information could put trainers and owners at a competitive disadvantage.

After our investigation, the Kentucky Horse Racing Commission began releasing details about horse-racing fatalities.

At Dangerous Kentucky Dams, Locals Aren’t Prepared For Disaster

Caitlin McGlade

The Loch Mary dam’s concrete spillway is deteriorating.

Eighty Kentucky dams have deficiencies and are deemed high-hazard, because a breach would threaten lives or property. Only six of those dams had complete emergency plans when reporter Caitlin McGlade went looking for them this summer.

State records and more than two dozen interviews with local emergency management officials showed that emergency responders largely lacked detailed plans for responding to a crisis at those dams. Precisely how many people in Kentucky are living at risk is unclear without those plans, as one of their functions is to scientifically identify where the flood waters would go during a breach.

Fixes are now underway at one dam we highlighted in western Kentucky

Ky. Worker Safety Leaders Promise Grieving Families They’ll Do Better

Mike and Pam Oakley talked for years about how Kentucky’s worker safety agency failed their 17-year-old son, Grant Oakley, who died on his second day of work. State officials never listened. They’re listening now.

After our “Fatal Flaws” investigation revealed serious failings in the state’s investigations of worker deaths, the agency promised to raise the bar with pay raises and more training. Then, the state’s safety commissioner acknowledged these problems and promised a culture change.

And when Workers Memorial Day came around, the state’s top safety officials drove to Garrard County to pay their respects to the Oakleys and assure grieving families they mean what they’ve said.

Our Newsroom

This year brought some big successes when it comes to collaboration and growth.

We joined ProPublica’s Local Reporting Network, and R.G. Dunlop is hard at work on our ProPublica collaboration. We became a host newsroom for Report For America, and the new reporter will cover social issues in Kentucky. We look forward to welcoming our first RFA fellow next spring. And we launched our new podcast: Dig will take on a brand new investigation each season. 

Ideas for what we should investigate in 2020? Send us an email at investigate@kycir.org.

J. Tyler Franklin | wfpl.org

KyCIR staff, 2019

‘We need to fight against this discrimination.’ | Entrepreneurs fight to abolish Kentucky’s home healthcare law Monday, Dec 23 2019 

Dipendra Tiwari and Kishor Sapkota want to help their Nepali-speaking community through a home healthcare system. The state told them "no".

        

KyCIR Amplify: A Sexual Assault Survivor On Getting Justice Friday, Dec 20 2019 

It was Labor Day weekend and Cay was nervous. The 17-year-old freshman at the University of Kentucky didn’t have many friends, or any experience with alcohol. But she’d jumped at the chance to attend this house party, and soon she was so drunk she could barely stand.

She asked a man for directions to the bathroom, but instead, she said, he took her to his room, laid her down on the bed, and raped her.

Cay, who we are identifying only by her nickname, walked herself to the hospital to get a rape kit exam. She reported to the police and, eventually, saw the man she accused of rape arrested and prosecuted. He accepted a guilty plea for sexual misconduct and served seven-and-a-half months in prison.

Cay is now applying to law school, hoping to help rape victims like herself find justice in the legal system.

“I like to say that is my first legal win,” said Cay. “I know that so many people do not have the courage, or the ability, or even the safety to speak about what happened to them and I am really thankful that I do.”

This story contains descriptions of sexual assault. If you, or someone you know has been sexually assaulted, please contact the National Sexual Assault Hotline at 800-656-HOPE. 

Cay’s case is the exception: nationally, only about 25 percent of rape cases end in an arrest, and that number is lower in both Lexington and Louisville. Prosecution Declined, a yearlong investigation from the Kentucky Center for Investigative Reporting, found that only 15 percent of all rapes reported to the Louisville Metro Police Department in 2017 ended in an arrest.

In Louisville, police often defer to prosecutors to decide whether an arrest is made in rape cases, and KyCIR found that prosecutors decline far more cases than they take. That system leaves many victims confused about who is making decisions in their case.

Meanwhile, in Lexington, rape cases are handled like all other cases: police investigate and arrest, and then the prosecutor takes over. Cay said it was a long fight for justice, but she always felt like her detective had her best interests at heart.

“My detective never made me feel like justice wouldn’t come, or like the prosecutor wouldn’t take [my case],” she said. “I felt like he believed me.”

Our investigations seek to protect society’s most vulnerable citizens, expose wrongdoing and increase transparency.

Amplify brings you the voices of the Kentuckians who feel the effects of the failures we reveal and secrets we expose. Hear more.

For Louisville Offenders And Victims Alike, A New Label: ‘Public Nuisance’ Wednesday, Dec 18 2019 

A woman shot and killed in her grandmother’s Valley Station home. A man dead of a suspected overdose in his sister’s home in Pleasure Ridge Park. A woman who told police she was strangled to the point of losing consciousness after refusing to have sex with her ex-boyfriend, who she still lived with.

In each of these cases, Louisville Metro Police officers responded. And each time, they decided the home — where the domestic violence victim or grieving loved ones lived — ought to be deemed a “public nuisance.”

Louisville’s public nuisance ordinance is intended to provide a way to bust up drug houses and crime dens. But police and code enforcement officials have been increasingly focused on residential locations where crimes are reported — regardless of whether the victim or the offender lives there.

While some nuisance cases involve stereotypical drug houses where drugs are manufactured or sold in high quantities, many stem from simple possession of drugs, paraphernalia or low-level trafficking offenses, a KyCIR review of nearly three years worth of nuisance cases shows.

In at least three dozen cases since 2017, the nuisance cases have stemmed from domestic violence, often putting housing at risk for victims in addition to perpetrators.

For renters, this has huge ramifications: after LMPD asks Louisville Metro Department of Codes and Regulations to issue a nuisance violation, its office sends a registered letter to property owners. The letter says the property has been deemed a public nuisance, and offers a defense: evict the tenants within 75 days.

Department of Codes and Regulations

If they don’t abate the issue, property owners face civil penalties starting at $400 and criminal fines as high as $1,000 a day, according to the letter.

The review shows that city agencies aren’t always following the terms of the ordinance, which requires two police interactions within a year before action is taken. Records show that, while city officials say the registered letter is just a warning, the code enforcement department is informing property owners the property has already been deemed a nuisance in that letter, and landlords are evicting tenants in response.

And the violations are issued seemingly randomly, given that the 200-plus violations issued this year don’t come close to the number of eligible police interactions in Louisville.

This is “utterly sickening,” said Councilwoman Jessica Green, a Democrat who represents District 1 in west Louisville.

Metro Council

Green voted for expanding the ordinance in both 2017 and 2018. She said she thought the ordinance was intended to go after businesses, and she had no idea how it’s been implemented.

“The application of this goes beyond decency and really common sense,” Green said. “This is a travesty, a real travesty.”

Officials from code enforcement and LMPD both said they’d examine how their enforcement is affecting victims of crime after learning of KyCIR’s findings. But they otherwise defended their use of the ordinance as a tool to address problem properties.

Codes and Regulations Director Robert Kirchdorfer said the nuisance ordinance is key to addressing problems for residents who live near homes with criminal activity. People might begin to reevaluate their lives if they’re forced to move every time they get in trouble, Kirchdorfer said.

And LMPD spokesperson Jessie Halladay said the ordinance is a creative and important tool that goes beyond “locking people up.”

“We can go in and make those arrests or do those citations, but then you just leave the environment there,” Halladay said.

Alexandra Kanik

But local housing experts and advocates for victims of violence said treating eviction like a crime-fighting device is bad policy that leads to housing instability for the city’s most vulnerable.

Nearly all nuisance cases come at the request of the Louisville Metro Police Department.

“This is insidious that we’re using the police force to evict people,” said Cathy Hinko, executive director of the Metropolitan Housing Coalition. “It doesn’t seem to fit in with everything else that we’re trying to do in Louisville to help stabilize families and people.”

It’s unclear how many nuisance cases led to an eviction because code enforcement officials don’t track the outcomes. At least 20 cases reviewed by KyCIR included documentation that a tenant was evicted, but homeowners don’t always submit the documentation.

Jerimy Austin, the city’s code enforcement supervisor, estimates at least half of all nuisance cases result in an eviction.

And enforcement of the ordinance is ramping up: police and code enforcement officials have issued more nuisance violations this year than they did in the previous two years combined.

Most Crimes Now Eligible As ‘Nuisance’

Louisville’s public nuisance ordinance has been in place for decades, but for much of its history, it focused on prostitution, alcohol, gambling and felony drug offenses.

In 2015, Metro Council added parameters for which hotels and motels would be considered nuisances. It also added murder and assault to the list of crimes that justify a nuisance case at a particular property.

By 2018, new language further expanded the list of reasons a property could be considered a public nuisance: code enforcement officials can now also consider misdemeanor drug crimes, possessing drug paraphernalia, theft, sexual offenses, and unlicensed massage therapy as the basis of a nuisance case.

Though much of the public discussion of the ordinance has focused on hotels, motels, and troublesome convenience stores, it’s almost always used against residential properties, the KyCIR review found. About 84% of cases are in the county’s western half, where studies show residents are more likely to be poor, black, or disabled, and less likely to own their home.

Green, the councilwoman, said she refuses to believe that nuisance crimes are largely occurring only in homes in west and southwest Louisville.

“Who is doing the screening process?” she said. “Who gets to ride off into the sunset because they check the box of being affluent, white, East End?”

Alexandra Kanik

When LMPD officers suggest possible nuisance cases, resource officers from each division screen them and pass them on to code enforcement. Louisville Metro Police Sgt. Christina Beaven, who until recently was the First Division Resource Officer, which includes portions of west Louisville, said the expanded ordinance was a “huge win” for LMPD. Nuisance cases actually allow them to help citizens in poorer areas of the city, where absentee landlords might ignore problem tenants, Beaven said.

“It’s not fair that they can’t have the quality of life we have in other parts of the city,” Beaven said. “Nobody would ever put up in the East End with having a drug house move in next door to them.”

But one expert on nuisance ordinances said this ordinance as written could be having a disproportionate impact in neighborhoods where police are more present.

Megan Hatch, an associate professor at Cleveland State University’s department of urban studies, researches nuisance ordinances, and she reviewed Louisville’s public nuisance ordinance at KyCIR’s request. She noted that it allows broad enforcement for nearly any run-in with police — and not just for arrests and confirmed crimes, but any time a police report is written.

A police report can be written for nearly anything, Hatch said.

“This is a little harsher than some,” she said.

And it’s unclear what leads one property to be considered as a nuisance over another with a similar history.

In October 2017, police filed an incident report after responding to the scene of a shooting in the Parkland neighborhood. The victim became “uncooperative” after he was confronted with inconsistencies in his account, according to the incident report, and he refused to participate in the investigation.

Later that month, he received a letter informing him of the nuisance violation.

When asked if a nuisance violation is used as an added penalty when people don’t want to cooperate with police, Halladay of LMPD said it’s useful to force the hand of a landlord who isn’t willing to make changes.

“Not everyone willingly wants to fix an issue,” Halladay said. “Public nuisance is designed to say, ‘Hey, what’s going on here isn’t acceptable by this community’s standards because we passed the law on this and we would like you to make some changes, or there will be some penalty.’”

Relying on nuisance laws to counter some of society’s most pressing issues is misguided and shortsighted, said Marie Claire Tran-Leung, a senior attorney with the Shriver Center on Poverty Law, a Chicago-based economic advocacy group.

“It’s not a way to actually address problems that are in a community,” she said. “It’s just a way to sort of put a Band-Aid on things.”

And it could cause some vulnerable people to be unwilling to call police when they need help.

Advocates: Eviction Threat Could Stop Victims From Seeking Help

Elizabeth Wessels-Martin, the president of the Center for Women and Families, said she was unaware that the city’s nuisance laws were being enforced after domestic violence incidents.

It’s unrealistic, she said, to expect victims to bear the burden of resolving a nuisance case.

“Domestic violence relationships are very complicated and very intertwined,” she said.

Some victims may depend on their abuser for financial support, or perhaps they fear their children may be taken away if they report abuse, Wessels-Martin said.

Adding the threat of eviction could absolutely prevent victims from seeking help, she said.

“It pushes victims to stay with the perpetrators because they don’t have anywhere else to go,” she said. “They don’t want to be homeless.”

In Louisville, the number of people experiencing homelessness due to domestic violence has increased steadily since 2014, according to research from the University of Louisville’s School of Public Health and Information Sciences.

In 2018, more than 1,580 people spent time in a homeless shelter due to domestic violence, which is a 17 percent increase compared with the year prior.

LMPD and codes officials said they would consider revisiting the issue as it pertains to victims.

Kirchdorfer of the codes department said he didn’t know his department was using the nuisance ordinance against victims of crime, particularly domestic violence.

“I think on these, we need to have some further followup with LMPD,” Kirchdorfer said. “We don’t want to cause any problems if someone’s been victimized.”

Austin, the supervisor of the nuisance program, said he reviews each case before issuing the violation notice to ensure the charges qualify as a public nuisance.

Domestic violence incidents can qualify a property as a public nuisance, under the ordinance, because all assault-related offenses can be considered a nuisance. But Austin said he’s never approved a notice in a domestic violence case since he took over the role in May. Records show his office has, before and since Austin’s tenure.

Halladay, the LMPD spokesperson, said the enforcement “may have some adverse consequences for those people who get caught up in other people’s behavior.”

“If we need to review how domestic violence has been impacted… we’re totally open to that,” Halladay said. That is not our intention, to put people in a position of greater hardship.”

With Little History Of Problems, Families Surprised By Notices

Jacob Ryan | wfpl.org

Andrea Swain is photographed in her Shawnee home, which city officials have deemed a “public nuisance.”

Andrea Swain was out of town when her cozy, tidy Shawnee home was labeled a public nuisance.

Swain is a homeowner, and she likes the neighborhood, close to downtown and the interstate. She recently replaced the hardwood floors, and photos of family line the shelves. On the wall near the front door is a framed, old newspaper article featuring her son when he was younger, with a violin tucked beneath his chin.

“We’re just a normal family,” Swain said. “We get up and take care of our yard and talk to our neighbors. We are not a nuisance.”

She was visiting family out of state when the police showed up to her house in March 2018. In her absence, her son, then 17, had friends over for a night of socializing and smoking weed.

One of the teens grabbed a pistol and fired it into the dirt in the backyard.

Swain’s house is on a street equipped with ShotSpotter, a gunshot detection system largely reserved for the city’s highest-crime blocks. The police showed up, and cited the teens for possession of marijuana. Swain’s son was cited for possessing the gun as a minor.

Two days later, the city sent Swain a letter, informing her that her home was a public nuisance because of the incident. Swain doesn’t condone what her son did, but she’s also not sure how that one incident qualifies her home as a nuisance.

But it’s allowable under the ordinance, which requires two police interactions within 12 months. Police records show they had visited Swain’s home on three different occasions. Twice, they came in response to burglar alarms. The other time, they were asked to make a welfare check on Swain, who suffers from lupus and brain cancer, after she missed a doctor’s appointment and didn’t answer the phone.

Since Swain owns the home, she’s not at risk of eviction. But she risks a $400 fine if the police are called to her home again.

“I would be highly pissed if something like that happened,” she said. “Four hundred dollars is a lot of money.”

The threat wouldn’t necessarily deter Swain from calling for help, if she needed to. But she doesn’t think it’s fair.

Far down Dixie Highway, beyond the strip clubs and factories, Kenneth Allen Sr. lives in a 700-square-foot home built on the steep bank of the Ohio River. There are no other homes in sight, but his home has nonetheless been deemed a public nuisance, too.

This February, Louisville Metro Police and the United States Postal Inspection Service showed up at his door for a “knock and talk,” according to police records.

They alleged that Allen, 79, trafficked in controlled substances after they seized eight pain pills he tried to mail to his son in Florida.

Allen couldn’t be reached for comment. His wife, Diana Allen, said she thought the nuisance violation was unwarranted, and amounted to police harassment.

Allen’s landlord, Ted Hayes, received a letter alerting him that the property had been deemed a public nuisance, and noting that a defense to the violation would be evicting Allen. He refused.

“Why would you evict someone for that?” Hayes asked. “The man wasn’t dealing drugs out of my property. [The police] know that, he’s not a drug dealer.”

Hayes received that letter shortly after Allen was charged — well before Allen’s trafficking charge was amended down to not keeping his prescription pills in the proper container.

Hayes had his attorney send a letter to the code enforcement department letting them know he was not going to evict Allen. He said he never heard anything else.

Landlords Say Enforcement Is Complicated For Business

Enforcement is complicated for property owners, who might welcome the added information from law enforcement but are also trying to run their private business as they see fit.

“I like to know what’s going on,” said Lisa Thornton, who manages nearly 40 properties in the city, three of which have been deemed a public nuisance.

In October, at a house she owns in southwest Louisville, police arrested a 24-year-old woman for possession of methamphetamine, according to police records. After receiving the notice of the public nuisance, Thornton contacted the tenant — the arrested woman’s mother — to find out what happened.

As Thornton tells it, her tenant’s daughter was visiting, and when she refused to leave, the tenant called the police to escort her out. She had outstanding warrants, and the police arrested her. Then, they found meth on her, and issued a nuisance violation against the house where her mother lived.

Thornton decided not to evict the woman she called a wonderful, long-term tenant who keeps her house clean.

But Thornton said she doesn’t want to be perceived as a landlord “that turns a blind eye.” So she told her tenant her daughter was no longer permitted to visit — even though the tenant is caring for her daughter’s child.

“I like to go by the law,” she said.

Toni Raybon owns a handful of properties in western and southwest Louisville. She said it’s unfair to saddle landlords with potential fines if tenants fail to adhere to the city’s standards.

So when police served a search warrant in October 2017 on her tenants and found drugs and guns, Raybon promptly evicted. She felt like doing so was her only option.

“I don’t want to be associated with that,” she said.

Richard Sturgeon was glad to receive a public nuisance violation on a home he used to own on Blue Lick Road in far south Jefferson County. He said he suspected his tenants were dealing drugs, and he was quick to evict after LMPD charged the man with trafficking methamphetamines.

“It gave me an excuse to get rid of them,” he said. “You can’t blame me for idiots like that.”

The ordinance also wields power over property owners who live in their properties.

Police asked codes in March 2018 to issue a nuisance violation to a home on West Madison Street. Beaven of LMPD said its occupant was one of the most notorious drug dealers in the Russell neighborhood.

“We all knew he was dealing drugs,” she said. “Because of the public nuisance ordinance, we were able to dislocate him from that area.”

But, property records show that he was not exactly pushed out — at least not immediately.

In the midst of the case, he bought the house from his landlord.

He was cited, and then codes issued him an “order to vacate” in February — he wasn’t allowed to live in the house he owned. Or, at least, he wasn’t allowed to live in that house: property records show he owns three others, including one on the same block.

Eviction doesn’t necessarily resolve the problem, according to Hinko, the housing advocate.

“It’s just a waterbed,” Hinko said. “You push down here, it rises somewhere else. People are just moving around, because you’re not intervening in a meaningful way.”

Rules Unclear Even To Enforcers

According to Louisville’s ordinance, properties are considered a nuisance after two incidents with police within a year.

Code officials are supposed to issue a warning after the first notification from police, notifying the property owner that “further violations will constitute a public nuisance.” After a second report from police, code officials should notify the owner that the property is a public nuisance — and that the public nuisance must be abated. If it isn’t, property owners risk fines or even an order to vacate.

But interpretations of that ordinance vary depending on whom you ask.

Beaven, the LMPD sergeant, said just one visit from police can result in a public nuisance violation — but LMPD officers wouldn’t do that “arbitrarily,” she said, unless they knew there was a problem.

Austin, the Code Enforcement supervisor, said “there is no set number” of incidents needed at a property to trigger a nuisance violation.

But the ordinance clearly mandates that a property must be the site of at least two police incidents within a year before it can be considered a public nuisance.

Austin said he doesn’t know how many runs LMPD has made before they ask his office to issue a violation, and the violations only include detail about the one police interaction that led to the violation.

“We just go by what LMPD sends us,” he said.

While Kirchdorfer of the codes department said the letter his office sends is indeed a warning, as the ordinance prescribes, the letter specifically says the property has been deemed a nuisance and offers eviction as a defense, a review of the records shows.

Louisville City Council President David James didn’t respond to a call for comment. Green, the chair of the council’s public safety committee, said city employees need to understand the ordinance language — and follow it.

“If we have employees out there that are violating what the code says, shame on them,” she said. “They should be dealt with.”

But the confusion extends all the way through the appeals process.

Jacob Ryan | wfpl.org

Charles Barbee

Dozens of police officers scaled Charles Barbee’s fence in June 2018, rifles in hand, looking for signs he was selling drugs.

The police found no drugs inside his Pleasure Ridge Park home after executing that search warrant. But records show police found weed and two guns in a truck in the driveway.

Barbee is a felon, and he was arrested and charged with illegal possession of a handgun, trafficking marijuana and possession of drug paraphernalia. He spent the night in jail. Three weeks later, city officials sent his landlord a public nuisance violation notice.

Barbee’s landlord is his son, Andrew Barbee. He appealed, using the process laid out in the registered letter he received.

Records show he’s one of only about a dozen property owners to take that step, since that’s how many cases the city’s Code Enforcement Board has reviewed out of nearly 500 nuisance cases since 2017.

The penalties laid out in the violation letter are also rarely enforced: only 25 of the cases have resulted in a $400 fine, records show. Five were eventually issued an order to vacate.

In February, Andrew Barbee’s attorney, Stephen Ryan, argued to the enforcement board that the charges against Charles Barbee weren’t lawful.

Jeremy Kirkham, the board chair, questioned how the property could even be considered a public nuisance.

Only one incident involving police was listed on the violation notice, and the ordinance requires at least two. Kirkham turned to Wesley Barbour, the Code Enforcement official present at the hearing, to explain how the case met the definition of the ordinance.

Barbour fell silent, and searched the ordinance for nearly two minutes. Then, he said the notice is only meant to alert property owners that an additional incident involving police would constitute their property being listed as a public nuisance.

The letter Andrew Barbee received clearly stated the city “has deemed your property … a public nuisance.” It made no mention that at least two incidents with police are required before a property can be considered a public nuisance. And an unknown number of landlords have evicted their tenants on the basis of similar letters.

Upon hearing Barbour’s explanation, Kirkham ruled the Barbees were never deemed a nuisance in the first place. They had nothing to appeal.

Ryan, the attorney, said he and his client would be satisfied — although, he noted, “I don’t really understand.”

The Code Enforcement Board chair laughed.

“Apparently we don’t either,” he said.

Contact Jacob Ryan at (502) 814.6559 or jryan@kycir.org.

 

Catholic Priest tries For parole again Monday, Dec 16 2019 

The state parole board will decide this week if Father Joseph Hemmerle should cut his time behind bars short.

        

Louisville Mayor Greg Fischer ‘Confident’ In LMPD Rape Investigations Friday, Dec 13 2019 

Several state and local elected officials raised concerns about Louisville’s handling of rape cases in the wake of an investigation published by the Kentucky Center for Investigative Reporting last week. But Mayor Greg Fischer said he is confident that the Louisville Metro Police Department “places a priority on getting justice” for rape victims.

“That commitment shows in daily officer interactions with victims, and most recently, with the department’s successful pursuit of grant funding to support victim advocacy and training related to domestic violence, human trafficking and other ways to support victims,” Fischer said in a statement.

KyCIR’s investigation, “Prosecution Declined,” found that of 194 rapes reported to LMPD in 2017, only 30 ended in an arrest and only four adult defendants ended up with a rape conviction.

(Read our yearlong investigation: Prosecution Declined)

KyCIR found that sex crimes detectives take every rape case to a prosecutor before making an arrest, often early in the investigation. Prosecutors declined more than 40 percent of all rape cases, which police then cleared by exception.

To clear a case by exception, police must identify and locate a suspect, and have probable cause to make an arrest. But an exceptional circumstance beyond law enforcement’s control stops them from making an arrest. LMPD acknowledged that they didn’t meet all those conditions in the case that is the focus of the investigation, but cleared it by exception anyway.

Fischer did not comment on that finding.

In 2017, LMPD cleared nearly half of all rape cases by exception, mostly because the prosecutor declined to take the case. LMPD cleared 15 percent of rape cases by arrest, below the national average.

Police and prosecutors told KyCIR that this screening process helps build stronger cases. Fischer indicated he, too, thought the collaboration between police and prosecutors was a benefit.

“As your story says and national statistics show, these cases are often difficult to prosecute, which is why LMPD investigators are in continual communication with prosecutors,” Fischer said.

Other elected officials aren’t so sure.

Submitted

Brandon Coan

“These are among the most serious, violent crimes that can be perpetrated in a community,” said Councilman Brandon Coan, a Democrat representing the Highlands. “We have a system that has a blind spot that needs to be fixed.”

State legislators representing Louisville echoed Coan’s sentiments.

“These numbers are pretty startling,” said state Rep. Joni Jenkins, a Democrat from Louisville currently serving as minority whip. “It’s something that cannot be ignored. This is something I would encourage the mayor and Metro Council to focus quite a bit of attention to.”

J. Tyler Franklin

Jen Sainato

KyCIR’s investigation focused on the rape reported by Jen Sainato in January 2018. She was in town for business, staying in the Marriott downtown, when she says a man she met at the hotel bar drugged and raped her.

LMPD Lt. Shannon Lauder told KyCIR that police didn’t have enough probable cause to support an arrest, which is a requirement to clear a case by exception. Coan said that was concerning.

“We need to make sure that all of our law enforcement actions are according to laws and policy,” said Coan. “That’s just a no-brainer.”

Six LMPD officers responded to Sainato’s hotel room after she reported she’d been raped. One asked her repeatedly how much she’d had to drink and called her hysterical. At one point, he put his hands on her upper arms like he was holding her in place.

LRC

Rep, Joni Jenkins

“That shows a real lack of training,” said Jenkins, a former rape crisis counselor. “I don’t think we want any victim of any crime treated that way. But somebody who has been sexually assaulted, that can be retraumatizing to physically touch them in that way.”

That same officer said that night that he thought Sainato was “stupid drunk” and speculated that the sex was “consensual to a point.” He told his fellow officers that police are often called to hotels to respond to people who get drunk, invite people back to their room and then say they were raped.

Sen. Morgan McGarvey

Sen. Morgan McGarvey, a Democrat from Louisville currently serving as minority floor leader called the officer’s behavior “completely unacceptable.”

“I was so shocked,” McGarvey said about KyCIR’s investigation. “We are making these people victims all over again.”

Councilman Mark Fox, a former LMPD officer who represents parts of south Louisville, said police should approach rape victims with sensitivity.

“Even though that might be the 10th run you’ve made that night, at that time, [the victim] is the most important person in the world,” Fox said. “Police officers need to conduct themselves in a professional and caring manner whether they’re responding to a sex crime or any other crime.”

He said LMPD officers as a whole do a phenomenal job, but it’s always important for them to remember that “words have meaning and actions have consequences.”

Metro Government

Fox said he was comfortable with the police bringing rape cases to a prosecutor to screen as long as they were doing thorough investigations first, which he felt they usually do. But he said no one, not even the prosecutor, should dictate whether police make an arrest.

Like others interviewed for this story, Fox said sex crimes are particularly challenging to investigate and prosecute. He said the city could consider setting up a resource for police officers responding to sexual assault calls, similar to the city’s Lethality Assessment Program. That’s a program that allows police officers to connect high-risk domestic violence victims with an advocate at the scene.

McGarvey, a lawyer, agreed that these cases are difficult.

“But when we have evidence that someone has been raped, we can’t give up because it’s difficult to prosecute,” he said. “Precisely because it’s difficult is why we should put more effort into providing justice for these people who have been hurt in this way.”

But he said finding the resources for that extra effort is always part of the equation amid city and statewide budget cuts.

“We need to provide victims of sexual assault with as much justice as humanly possible, and I’m not trying to make excuses, but I do think we’re asking good officers, good prosecutors, good judges to do a lot more with a lot less.”

Reach the National Sexual Assault Hotline 24/7 at 800-656-HOPE or rainn.org for live chat.For free services in Louisville, call the Center for Women and Families at (502) 581-7222.

If you have experienced sexual violence in Kentucky and want to talk to a reporter, call 502-8146580.

WFPL Reporter Amina Elahi contributed to this report. Contact Eleanor Klibanoff at eklibanoff@kycir.org.

Customers say contractor didn’t follow through on his promises Saturday, Dec 7 2019 

"He knew I was a disabled vet when he built the house," one customer said. "Nothing is handicap accessible."

        

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