Ky. Unemployment Office Is Waiving Overpayment Debts, But It’s Invite-Only Wednesday, Aug 25 2021 

Kentucky’s new unemployment insurance overpayment waiver is supposed to offer some relief to people who were mistakenly overpaid benefits, but many who owe money are excluded from even asking.

The state legislature first created the waiver program in March, after the Kentucky Center for Investigative Reporting detailed how people who applied for benefits in line with Gov. Andy Beshear’s public statements about eligibility later got debt collection notices.

Nearly a year after Beshear told people to save money from unemployment insurance benefits in case the state made a mistake and asked for that money back, the waiver offers debt forgiveness for people who were overpaid through no fault of their own — and for whom collection would be “unconscionable, unjust or unfair.”

In June, the unemployment office began mailing overpayment waiver applications to those who might be eligible for an overpayment waiver based on their records. Kentucky Labor Cabinet spokesperson Kevin Kinnaird said in an email the agency sent out just over 14,600 applications so far, allowing the chance of forgiveness for over $19.6 million in total overpayment debt.

But the office has limited who can ask for debt forgiveness to people the state has predetermined might be eligible — and those people have to request the waiver within 30 days of notification.

The unemployment office has so far approved debt relief to just over a third of those individuals who received letters. Kentucky-based attorneys and national advocates say this restrictive approach to overpayment waivers may leave people saddled with debt they shouldn’t have to pay.

No one from the Kentucky Office of Unemployment Insurance was available for an interview on the subject, according to Kinnaird. He said by email that the waivers amount to nearly $7.5 million in debt forgiven so far. People who were overpaid but didn’t get a waiver application have the right to file an appeal, Kinnaird said, but according to the unemployment office’s website, appeals must be filed within 15 days of the initial decision.

Few Options To Fight Overpayment Debt

Leonard Sanderson, a substitute teacher for Jefferson County Public Schools, hoped the new waiver would relieve him of nearly $1,000 in debt.

Sanderson received unemployment benefits from April through June last year when the coronavirus pandemic closed schools to in-person education, and ended the substitute teaching assignments Sanderson relied on.

The Kentucky unemployment office paid him, then determined retroactively he was ineligible for benefits once the regular school year ended. The unemployment office said substitute teachers weren’t supposed to file unemployment claims during summer break. Sanderson didn’t know that. 

Just a few months earlier, in March of 2020, Kentucky expanded unemployment insurance to cover independent contractors and substitute teachers. Sanderson normally picked up school assignments those months, and plus, the state already paid him. So when Sanderson heard about the new debt forgiveness waiver, he thought it would certainly apply to substitute teachers like himself.

Sanderson remembers watching a press briefing on TV as a representative from the state saying people would be receiving a form to fill out and apply for forgiveness.

“Well, I haven’t received that,” Sanderson said. “The only thing I’ve ever received was two collection letters.”

Sanderson filed suit against the unemployment office last December seeking a judge to reverse the unemployment insurance office’s decision that he was ineligible for unemployment benefits. A JCPS spokesperson told KyCIR last year that more than 2,200 unemployment claims were filed by JCPS employees and substitute teachers at the time.

He hasn’t received a waiver application, and hasn’t been able to reach the unemployment office to ask for one. He is so far unable to ask for basic forgiveness, and stuck in “limbo.”

“With no prize on the other side,” Sanderson said.

‘Good faith’ but no shot at waiver

The unemployment insurance hasn’t even given many substitute teachers, and potentially other workers, a chance to apply for debt forgiveness, according to Louisville attorney Robyn Smith.

The state needs to fill out portions of the waiver application first, including how much money the applicant was overpaid, and there’s no blank forms online or elsewhere for people to submit their own application. People seeking forgiveness through the waiver then need to explain why their overpayment wasn’t their fault and that the debt causes a financial hardship for the applicant and their family or they spent the money on necessary expenses.

When Smith reached out to the unemployment office to ask for a waiver on behalf of a client, she said the unemployment office told her substitute teachers couldn’t request a waiver application for summer payments because they were not a “no-fault” overpayment.

Smith disagrees. 

“I don’t see anything that implicates fault,” Smith said. “They in good faith did what your people told them to do. There wasn’t a law that told them not to claim that they were ignoring. They did not falsify anything. They did not misrepresent anything and they relied on your agency granting that sum.”

And, she said, they’re unemployed and have long since spent that money.

“If you make them pay it back, that’s a hardship, that’s exactly what the waiver is supposed to address,” Smith said.”

The application process laid out in the statute puts the onus on the claimant to request a waiver and prove that they meet the criteria for debt forgiveness, a process Smith said many people may find confusing.

“You get this bill in the mail and you only have 30 days from the date that mailed to you to try and build a case, using words that lawyers use, about why you shouldn’t have to pay all of that back,” Smith said. “That is to me the epitome of unconscionable unjust and unfair, putting that burden on people who are still struggling to get back on their feet.”

Republican State Sen. David Givens from Greensburg, who sponsored the law creating the waiver process, did not respond to a request for comment.

Steve Gray, senior counsel at the National Employment Law Project, a nonprofit advocating for economic security and opportunity for workers, said anyone who was given benefits from the state should be eligible to request a debt waiver

In Michigan, where Gray led the state unemployment insurance office through the first eight months of the pandemic, the office granted waivers automatically for many people who were overpaid due to an agency error.

“If you look for the purpose of the unemployment statutes across the country, it’s to relieve the crushing force that unemployment has on people and their families and their communities,” Gray said. 

But, Gray said, many states shifted the focus of unemployment insurance in recent years from providing relief to as many out of work people as possible towards limiting access to prevent relatively rare instances of fraud or mistaken overpayments.

As a result, unemployment insurance often fails to reach the people who need it most: At the dawn of the coronavirus era, 20% of unemployed people in Kentucky received benefits, which is lower than the national average of 28%.

Gray said the mindset that keeps recipiency rates low may impact how states implement their waiver programs.

“Lots of states that have waivers in place don’t give very many of them, even though there are lots of people that are eligible for them because of this sort of same mentality,” Gray said. “It’s entrenched in our system. We just need a complete overhaul.”

The post Ky. Unemployment Office Is Waiving Overpayment Debts, But It’s Invite-Only appeared first on Kentucky Center for Investigative Reporting.

Phone Calls Still Won’t Be Free When Louisville Jail Gives Up Profit Tuesday, Aug 10 2021 

 

Jacob Ryan

Metro Corrections in 2017

Calls from the Louisville jail are unlikely to be free even after the city gives up its revenue from the calls.

That’s because phone vendor Securus Technologies still has to get paid.

The budget passed by Louisville Metro Council on June 24 requires the jail to stop taking commissions from phone calls in January, and council members cited the high cost for families of incarcerated people in support of the proposal. But it does not make phone calls free.

The new cost of phone calls for people with loved ones inside the jail will depend on negotiations with Securus, according to Louisville Metro Department of Corrections Assistant Director and spokesperson Steve Durham.

“We will be renegotiating the rates to exclude commissions; however, all calls will not be free,” Durham said in an email.

Jade Trombetta, manager of communications at Securus, said the company offers commission-free and taxpayer-funded options in their contracts “as part of our ongoing effort to make our products more affordable and accessible.”

Monthly call volume records obtained by the Kentucky Center for Investigative Reporting show Securus collected $1.6 million in revenue from phone calls in the Louisville jail during 2020.

Securus is one of the largest corrections telecom companies in North America, and holds the contract for all 14 of Kentucky’s prisons and 22 local jails. A recent KyCIR investigation found Securus saw its profits skyrocket last year, with nationwide revenue of $767 million in 2020, amid business shutdowns and rampant unemployment accompanying the coronavirus pandemic.

In Louisville’s jail, calls to a local landline cost $1.85 and calls to cell phones cost $9.99, according to the jail’s website. All calls are limited to 15 minutes.

The company’s contract currently entitles the city to about 60% of the revenue in commissions, a common deal between telecom providers and their correctional facility customers. Records show Securus paid the Louisville jail nearly $945,000 from January through December 2020.

Durham said the money from commissions goes to Louisville Metro’s general fund. Metro Government spokesperson Jean Porter said the money is then used to offset the jail’s operating costs.

Chanelle Helm, a Strategic Core Co-Organizer of Black Lives Matter, Louisville is not surprised the phone services have been so lucrative for Securus and the jail. Helm estimates her organization spent around $35,000 on Securus phone calls in the past year arranging bail for people inside the Louisville jail.

“That’s what the system is designed to do,” Helm said. “There isn’t one part of the system that is taking any of the funds from people and producing anything other than more positions and more funding for the criminal justice system.”

Last summer, the jail population decreased to around 1,200 as city officials sought to relieve overcrowding and slow the spread of coronavirus, but that number has been rising again. Last month, the jail was nearing its capacity with 1,601 people and 20 active coronavirus cases.

As the new, more infectious coronavirus Delta variant threatens to take hold in correctional facilities, Helm said the city should work to lower the jail population or at least make calls free.

“In this moment, in the middle of a pandemic, if we cared about folks’ rehabilitation… we would allow them to speak to family members and loved ones without cost,” Helm said.

The push to lower jail phone costs

Louisville’s current contract with Securus to provide phone services was first signed back in 2011 and has been amended ten times since then.

It wasn’t until the pandemic closed the jail to visitors that a push to make calls free caught steam. Securus did provide one free phone call a week per person, but Judi Jennings said that wasn’t enough.

Jennings is the director of the Special Project, an initiative to provide art supplies for children waiting to visit their family members at the jail as part of the Louisville Family Justice Advocates. The advocacy group circulated a petition and began lobbying Metro Council in December.

In June, Metro Council passed a budget which instructs the Director of Corrections to “discontinue generating revenue from inmate phone calls after December 31, 2021.”

But that doesn’t usurp the city’s contractual obligations with Securus.

Councilman Bill Hollander, chair of the budget committee, said the cost of calls to incarcerated people and their families will depend on Metro Department of Corrections’ negotiations with Securus.

“I would hope, personally, that we could move to free phone calls,” Hollander said. “But that would likely require another appropriation to cover whatever costs are negotiated.”

The contract extends through January 31, 2022 and includes a stipulation that it can be renegotiated to include an “appropriate reduction to the applicable call rates” if Metro stopped taking a cut of the profits.

The contract also says the city can start paying the cost of phone calls itself, instead of passing the cost on to the families of incarcerated people.

“I think everyone would concede that we need to have a provider to provide those services. The question is what is that provider going to charge and who is going to pay those charges,” Hollander said.

Will Jail Visits ‘Slip Away’?

Metro Corrections relies on Securus tools to accomplish much of its daily operations.

Securus’ contract allows Louisville access to its biometric surveillance and call monitoring services as well as connections to databases of warrants and other information from the National Crime Information Center.

Securus also owns Archonix, the company that runs mugshots.louisvilleky.gov and provides the inmate management service used by the jail.

Louisville’s jail recently partnered with Securus to introduce two new services that advocates and lawmakers worry will further isolate incarcerated people and lead to higher costs to stay connected.

The first is the “Securus Digital Mail Center,” a free service which scans physical mail and delivers it to incarcerated people electronically instead of physically. Wanda Bertram, a communications specialist at the advocacy group Prison Policy Initiative, says the practice will incentivize people to sign up for expensive email and messaging systems — “which happens to be the very same services that these companies are selling, making money off of and using to give kickback revenue to the jail itself.”

“You can’t hug your loved one, you can’t see them except through a screen, and in that context to go a step further and take people’s letters away, really just it’s completely cutting them off from their families,” Bertram said.

Trombetta, the Securus spokesperson, said the digital mail center has not been installed yet in Louisville.

Securus also began offering video calling, which started as a pilot program in 2018, and will soon deploy throughout the facility. Remote video calls cost $5 for 20 minutes, according to Securus’ website.

Securus’ contract entitles Louisville’s jail to a 20% share of the revenue from video calling if they hit certain traffic milestones, but Durham said the jail won’t accept commissions from video calling.

Last September, Kentucky state lawmakers bemoaned the fear of video calling replacing visitation at jails in a hearing before the Jail and Corrections Reform Task Force.

Securus representative Russell Roberts said that video calling was “an augmentation” and not meant to replace in-person visitation, but that’s exactly what some lawmakers feared is already happening.

“If we’re talking about rehabilitation, we’re talking about families, we need to make sure that we preserve family in-person visitation,” said State Senator John Schickel, a Republican from Union. “It breaks my heart when I see it has to be through the glass and over the phone… if we’re not vigilant about that, we’re going to see [in person visitation] is going to slip away.”

Even before Securus video calling — and before the pandemic — Louisville’s in-person visitation was essentially gone. The jail replaced traditional in-person visits with a closed circuit video that visitors often had to wait hours for their turn to access. Jail officials said it was an effort to improve safety and reduce contraband making its way inside the jail.

Now Securus runs the video calls at the facility, free, for someone who comes into the jail. Once the system is fully deployed throughout the jail, it will be the only “in-person” visitation option. But the calls are only available for two days a week, on Mondays and Saturdays.

Screengrab, Securustech.net

Prices and availability of video calling from the Louisville jail.

“The way they make money — and they wouldn’t be doing this if they couldn’t make money — is by creating this more convenient option and simultaneously making the possibility of the onsite options extremely unattractive,” Bertram said.

Contact Jared Bennett at 502-814-6543 or jbennett@kycir.org.

The post Phone Calls Still Won’t Be Free When Louisville Jail Gives Up Profit appeared first on Kentucky Center for Investigative Reporting.

In West End, Sewer Odors Are A Long-Standing Problem Tuesday, Aug 10 2021 

 

Lily Burris

James Krebs, a utility worker with MSD, cleans a catch basin on 42nd Street.

Every time Teri Carr has company at her home in Park DuValle, she worries about the potential smells from the street.

The odors are offensive and embarrassing — like sewage or feces, a chemical smell or rotten eggs. Sometimes they’re so strong they wake her up in the middle of the night.

Each time, she dutifully registers a complaint with the city, hoping something will change.

“I have to deal with my quality of life,” Carr said. “It’s a shame I may have to move from this neighborhood – not necessarily for crime, but for quality of air.”

Lily Burris

Teri Carr

The Louisville and Jefferson County Metropolitan Sewer District concedes the sewers in Park DuValle and many neighborhoods in the West End of Louisville have odor issues. Six years of data show MSD has received the most odor complaints — more than 400 — from the 40211 zip code, which includes the Park DuValle and Chickasaw neighborhoods, and a portion of Russell.

Nearly all of the rest of the high-complaint zip codes are in the West End, which is predominantly Black, historically underserved by city services and closest to the state’s oldest and biggest wastewater treatment plant.

Congressman John Yarmuth recently announced preliminary approval from Congress for a federal appropriation package of more than $5 million for Louisville projects, $480,000 of which are designated to address odors in the sewers of the Park DuValle neighborhood.

But the money isn’t guaranteed, and the demand isn’t new. The MSD has until the end of next year to comply with an order from the Louisville Metro Air Pollution Control District to mitigate the problems with West End sewers.

MSD officials said they’ll find a way to complete the work eventually, even without federal money. They say the sewer odor, while inconvenient, isn’t hazardous. That’s little comfort to Carr.

“Even if it is just offensive, I don’t want it in my backyard,” Carr said.

Age, Location and the System

Sewers in the Park DuValle area range from 100 years old to 20, but regardless of when they were built, they feed into the combined sewer system that once dumped into the Ohio River.
The combined sewer system is mostly within I-264 toward the Ohio River. This includes all of the West End and other neighborhoods like Cherokee Triangle, the Highlands and Clifton. Now, this system takes wastewater and stormwater in the same pipe to the water treatment plant.

About two-thirds of the county’s waste is gravity-fed into the Morris Forman Water Quality Treatment Center on the Algonquin Parkway — two miles east of Carr’s house in Park DuValle.

“[The waste] gets larger and slower as you get closer to the plant,” said Rachael Hamilton, interim director of the Metro Air Pollution Control District, which monitors air quality standards and residents’ complaints.

Hamilton called the odors in the West End an environmental justice issue.

“That’s really a vestige of redlining in this community,” Hamilton said.

When stagnant waste combines with dry weather, Hamilton said, the odor can be really strong. An event like that in 2019 prompted the board to issue a legally binding, agreed order with MSD to correct the problem.

When MSD investigated the issue in Park DuValle, they inspected 198 catch basins. More than half were missing necessary equipment to seal off odor.

Brian Bingham, MSD’s chief operations officer, said the work in Park DuValle to repair these catch basins is their first major initiative to complete the terms of the order.

The cost for repairing a catch basin can vary from $1,500 to $20,000 depending on what needs to be done, Bingham said. While this current project is focused on the West End, he said it’s not the only place with these issues according to MSD.

“Not all this problem is in West Louisville,” Bingham said. “This problem exists to some level throughout the entire combined sewer system as it does with every combined sewer system and every combined sewer city in the country.”

Of nearly 3,000 odor complaints from 2015 through 2020, more than a third came from zip codes in the West End.

The Cause of Odors

Catch basin traps are similar to the j-shaped pipes seen under sinks in homes, which holds water to reduce smells. It’s this equipment that’s faulty across much of Park DuValle. “On days when we have lots of heat, no rain, the water gets stagnant,” said James Krebs, a utility worker with MSD who cleans catch basins. “All the organic materials and people cutting their grass, leaves start breaking down in there and it creates a smell. We get a lot of odor complaints with that.”

Last month, Krebs operated a small crane arm on 42nd Street to clean a catch basin with an odor complaint. Workers access the sewer system via brown, rusted metal sewer drains. Underneath those drains are catch basins — along with waste and trash. Trash gets shoved down into sewer drains and piled up on top of the grates. The under-the-street sludge can make whole neighborhoods smell.

Lily Burris

Trash accumulating in a sewer on 42nd Street

Krebs’ crane arm reaches down into the catch basin and, scoop by scoop, pulls out the organic matter and trash and drops it into a small dump truck.

And Krebs sprinkles deodorizing pellets into the drain.

The whole endeavor took Krebs about 15 minutes.

The dump truck takes the goop, for lack of a better word, to one of MSD’s facilities where a bigger truck takes it to the garbage dump.

This process will repeat itself thousands of times as MSD’s $6 million project to address sewer odor issues in the West End gets underway. MSD identified five priority neighborhoods: Park DuValle, Shawnee, California, Chickasaw and Taylor Berry.

Bingham, the MSD chief operations officer, said their plans for Park DuValle are on a bigger scale than previous projects. Odor mitigation is already embedded in a lot of other projects they do, Bingham said, so it’s hard to calculate the investment comparatively, but he estimates they already spend about $2 million across the county on odor mitigation each year.

MSD estimates the Park DuValle work alone will cost nearly $1 million, including master planning and communication efforts.

Residents say there’s a lot of catching up to do. Jimmy Henderson, Sr. grew up in Park DuValle.

“As far as I can remember, you know, I can remember my parents talking about it,” he said of the smell.

It’s not just the sewers — he said there are sewage smells as well as chemical smells from the Rubbertown factories just southwest. Overall, he said there’s a lack of respect for this part of town — so he appreciates that MSD is prioritizing the West End.

“I know, for a fact, they have spent money, a lot of money, trying to rectify some of those problems,” Henderson said.

Carr said she and her neighbors in Park DuValle hope that whatever work they do results in improved air quality. She’s bought air filters, essential oils and anything she thinks will help.

“I don’t want them to get this money and then they do all of these things and we still smell what we smell, and don’t understand how what they did benefited us,” she said.

Lily Burris was a summer fellow at WFPL and KyCIR. She’s a senior at Western Kentucky University. 

The post In West End, Sewer Odors Are A Long-Standing Problem appeared first on Kentucky Center for Investigative Reporting.

Kentucky Jails Made $9.6 Million Off Jail Communication In FY2020 Thursday, Jul 15 2021 

Kentucky jails and county governments made $9.6 million off payments for phone calls and other services in their jails and nearly $900,000 in telecom contract “signing bonuses” during the 2020 fiscal year, according to a survey conducted by Kentucky Auditor of Public Accounts Mike Harmon.

Harmon’s “data bulletin” about telecoms contracts with local jails cited concerns that the industry norm of selecting the vendor who offers governments the biggest cut of their proceeds — called commissions — also incentivizes companies to charge as much money as possible for their services.

Harmon said these potentially competing interests highlight the need for additional legislative guidance for correctional facilities in Kentucky.

“Is the goal of these contracts to bring the most revenue to jails, so that they can offset cost to the taxpayers?” Harmon asked. “Is the role to provide the best services at the lowest cost to the inmates? Or is it a combination of the two?”

Harmon’s survey focused on local and regional jails, and did not include state prisons run by the Kentucky Department of Corrections. A Kentucky Center for Investigative Reporting story published this week found the DOC received $3.2 million last year in phone commissions from contractor Securus Technologies, and negotiated a contract with a $4.1 million, one-time supplemental payment last summer.

Securus and two other Kentucky-based entities — Combined Public Communications and CyberPath Services —  hold the majority of the locally-run jail contracts.

Harmon said the survey his office conducted consisted of records requests filed with local jails and was intended to “serve as a tool” for jailers, the General Assembly and public officials “as we work to try to bring clarity to these new types of revenues.”

Harmon, who announced Monday that he’s running for governor, suggested that lawmakers should pass legislation to improve oversight of these contracts.

Executive Director of the Kentucky Jailers Association Renee McDaniel could not be reached for comment.  The jailers association president and Campbell County jailer, James Daley, has not yet responded to an emailed request for comment.

What’s In The Data Bulletin

Harmon’s release says that the contracts “have become a newly developed source of revenue” for Kentucky’s county jails, which have increasingly engaged in contracts to provide other services besides phone calls, such as video calling, emails and texting. 

Harmon says that’s good: It keeps people connected to friends and family on the outside in new ways.

But there’s a catch: The new products are expensive, and families spend a lot of money on keeping in touch. That was especially true during the coronavirus pandemic, when people called more than ever or turned to new forms of communication with visitation suspended. 

There are also few laws governing how the contracts ought to be structured.

His survey found some jailers using “verbal” contracts, expired contracts or contracts signed without a formal bid process. The terms often included “technology grants” that were left open to interpretation, a one-time “signing bonus,” lines of credit for capital improvements and other incentive payments.

Among the expenditures jails reported using the technology grants for, according the Harmon’s report:

  • “Mats and clothing for inmates” and other “miscellaneous expenses” at the Adair County Regional Jail
  • $100,000 for “Reimbursement of Assistant County Attorney salary and benefits” as well equipment in Henderson County Detention Center
  • “Various operating expenditures, including K-9, jail vehicle, weapons, mats for inmates,” as well as showers for people serving state sentences, in Muhlenberg County.

Jasmine Heiss, the director of a Vera Institute project about mass incarceration in rural areas of the country, said that these types of payments can shift the cost of running governments to people who can least afford such a burden.

“If there is a legitimate service that the criminal justice system is providing to uphold the dignity of incarcerated people, then that should be a fully funded function of government and of the criminal legal system, not something that they try to fund on the backs of the poorest people in their counties,” Heiss said.

Contact Jared Bennett at 502-814-6543 or jbennett@kycir.org.

The post Kentucky Jails Made $9.6 Million Off Jail Communication In FY2020 appeared first on Kentucky Center for Investigative Reporting.

The Pandemic Isolated Incarcerated People. Kentucky And Securus Cashed In Wednesday, Jul 14 2021 

For over 460 days, as the pandemic shut down visitation across the state, incarcerated people and their loved ones relied on the prison system’s costly phone calls and emails. 

The Kentucky Department of Corrections and Securus Technologies reaped big rewards.

Records show the Department of Corrections made at least $3.2 million last year off phone calls that cost the loved ones of incarcerated people up to 25 cents per minute.

That’s the state’s share of the revenue brought in by Securus, which is one of the largest prison telecom firms in North America and holds the contract for all 14 of Kentucky’s prisons. A Securus spokesperson refused to provide its total revenue for that state contract, but a KyCIR analysis found they took in anywhere from $2.9 million to $6.4 million on phone calls alone.

And the company’s profits nationwide indicate the pandemic was a windfall: Financial records obtained by KyCIR show Securus’ revenue increased by almost 10% to $767 million in 2020, amid business shutdowns and rampant unemployment accompanying the coronavirus pandemic.

Kentucky took advantage of this windfall last summer while negotiating a new contract with Securus. They already received $3 million a year from the proceeds of prison phone calls. But the new contract raised their guaranteed minimum to $3.5 million, plus a 40 to 50% share of revenue on new tablets and video calls.

Securus’ services were more necessary than ever, yet the company still hasn’t delivered on long-promised video calls, leaving prison staff to set up Zoom calls when the pandemic struck. And users regularly encounter tech issues with phone calls, interviews with 10 family members and incarcerated people show.

The Department of Corrections didn’t respond to a request for an interview. Securus’ manager of communications Jade Trombetta responded to an interview request with a brief emailed statement. “Securus is proud to provide communications services to the Kentucky Department of Corrections. Our products keep incarcerated Kentuckians connected with their loved ones, help reduce recidivism, and promote public safety,” the statement said. 

But advocates and family members say the DOC and Securus’ products extracted more money from vulnerable people at a time when they needed it most.

“This is people’s lifeline to their loved ones, and they could just charge anything, because people will pay what they have to pay to communicate with their loved ones,” says Diana Elswick, who has spent $900 since March communicating with a friend at the Kentucky State Reformatory. “It’s like they’ve got an IV into the bank account of anybody who has got someone incarcerated in the state.”

The Cost of Staying In Touch

Gov. Andy Beshear suspended visitation at Kentucky prisons on March 11, 2020 in an effort to prevent COVID-19’s spread in the overcrowded facilities. It would eventually spread in every state prison, leading to over 9,000 cases and 53 deaths of workers or incarcerated people.

Before the pandemic, Mekayla Breland would drive over three hours from Newport to the Green River Correctional Complex to visit her fiancé, who asked not be named to avoid retribution in the prison. She says she didn’t hear from him for the first two weeks of the pandemic. 

“There was no notification,” Breland said. “Everything went through my head. I didn’t know if he was alive.” 

Mekayla Breland speaks to her fiancé in the Green River Correctional Complex.

After that, phone calls became more important — and, without in-person visits to look forward to, more frequent. Data provided by the DOC shows that people spent over 633,000 more minutes on Securus phones in 2020 than in 2019, an increase of almost 2% even as the prison population dropped by 16%.

Some of those calls were free, as Securus and the Department of Corrections quickly announced one free 15-minute call per week.

Even with the free calls, Securus still collected anywhere between $2.9 and $6.2 million from Kentucky users in 2020, according to a KyCIR analysis based on call volume and Securus’ lowest prepaid call rates to most expensive. The analysis assumed widespread use of the free calls, but it’s still likely an understatement, since it’s based on per-minute call rates, and does not include other costs associated with Securus’ products.

Though the pricing is set in Securus’ contract, call prices can be unpredictable. KyCIR reviewed bills from calls to the Lee Adjustment Center that show the price of a 15-minute call to an out-of-state number increased by 48 cents between May 2020 and April 2021

DOC and Securus representatives both said the price hasn’t changed. But Securus noted tax rates “can fluctuate.”

The company passes regulatory fees and taxes on to consumers. Even though the Federal Communications Commission caps most calls at 21 cents per minute, that doesn’t include these passed-through fees, and Securus calls regularly cost nearly 40% more than that cap.

There are also flat fees: speaking to a live customer service representative, for example, costs $5.95. Adding money to a prepaid account costs $3 per transaction, and users can only load $50 at a time.

Securus acknowledged at the start of the pandemic that staying in touch with incarcerated people was an especially heavy financial burden. Last March, Securus petitioned the FCC to waive its regulatory fees so that they could lower the cost of phone calls for its customers. 

“While in-person visitation is limited or prohibited, many inmates and their friends and families many of whom are low-income and/or may be experiencing increased financial pressures due to lost income caused by COVID-19 will increasingly rely on [phone calls] as a means of communications,” Securus said in its petition.

When the FCC denied Securus’ request, it argued that Securus could lower its rates any time, and had no obligation to pass regulatory fees onto its customers. They didn’t lower rates in Kentucky.

Breland uses a third-party app and has to change phone numbers often to keep down the cost of staying in touch with her fiancé. She lost her job as a mental health case manager in February. She found a lower-paying job at a factory, and took a second job waiting tables.

Breland says the money from her second job — about $150 to $200 a week — goes right to her Securus account.

“Dating somebody who’s incarcerated is a financial burden, but you love who you love and you have to make sacrifices,” Breland said.

Research by advocacy groups has found that 1 in 3 people with an incarcerated family member go into debt to pay for phone calls or visits. 

About 22% of incarcerated people in Kentucky are Black, though they make up less than 9% of the state’s population.

“The impact of COVID-19 on the outside community was disproportionate on Black, brown and cash-poor communities,” said Bianca Tylek, the founder and executive director of Worth Rises, an advocacy group that has challenged the prison phone industry. “And so when you think about those who are most dependent on prison telecom, disproportionately cash-poor communities, disproportionately Black and brown communities, also being those that are most negatively financially impacted by the pandemic? You can only imagine that that 1 in 3 number is now much higher.

“The pandemic was the biggest blessing that [Securus] could have asked for,” Tylek said.

A Pandemic Turnaround

Securus entered the pandemic promising reform after years of pressure from advocates and families of incarcerated people to reduce or eliminate prison telecom costs.

The Dallas-based company holds individual contracts in 22 local jails in Kentucky in addition to the state prison system. It’s owned by private equity firm Platinum Equity, placing it under the leadership of chairman Tom Gores, owner of the Detroit Pistons NBA team.

Documents obtained from the Alabama Public Service Commission, which regulates utilities such as Securus in that state, show the pandemic benefited nearly every business venture of Securus’ parent company, Aventiv Technology — including electronic monitoring services called Satellite Tracking of People, or STOP, used in Kentucky.

The use of these services also increased during the pandemic, as jurisdictions released more people on parole to reduce the population of crowded correctional facilities, and their electronic monitoring revenue increased company-wide by almost $4 million in 2020.

That overall revenue increased to $767 million in 2020, and net cash flow from its business operations increased five-fold, to $133.4 million. Securus’ spokesperson said revenue increases “reflect new installations, expanded offerings, and improved product performance.”

‘You’d think they would try’ to keep prices low

Other jurisdictions are rethinking the practice of charging for phone calls from prison. The Louisville Metro Council passed a budget last month that weans Metro Corrections off its portion of the revenue from phone calls. Connecticut recently became the first state in the country to ban fees for phone calls from prison.

Legislation has been introduced in Congress several years in a row to curb the costs of phone calls for incarcerated people. Rep. Bobby Rush, a Democrat from Illinois, has sought unsuccessfully to pass a federal law prohibiting correctional facilities from taking a cut of phone call revenue.

The prison phone contract has brought some scrutiny in Kentucky recently. Securus and its competitors testified before an interim committee on jail and criminal justice reform last fall. Sen. Whitney Westerfield, a Republican from Crofton who chaired the committee, said he has a problem with the state profiting off this industry — but the short legislative session and likely pushback from local jailers and county governments prevented him from proposing a new law.

“To charge enough to pay a 50% commission and still be profitable as a vendor and still compete nationally for business, that probably means the margins are higher than it ought to be,” Westerfield said.

But the Kentucky Department of Corrections has not publicly expressed any similar concerns. In fact, the agency committed to a new, six-year contract with Securus last July, even as the company has failed to meet its contract terms in past years. 

The new contract includes a promise from Securus to offer video calls. The service would have been popular last year, and lucrative: a 25-minute video call in Kentucky will cost $5, according to the company’s new contract, and the state will keep half. 

But a review of previous contracts shows Securus has been promising video calling since 2013. Two years later, the DOC enacted financial penalties if Securus didn’t set up video calls. But they didn’t act on it. 

A DOC spokesperson said the agency was “in the process” of enforcing that policy in 2016, but “departmental administration changes” and contract issues delayed the implementation of video calls further.

The prisons did offer some free video calls during the pandemic, but the calls were held over Zoom, usually in a prison staffer’s office, according to multiple people who have participated in such calls over the past year.

“It’s really awkward because there’s one or two people just sitting in there, and you can’t really talk about anything or put your information out there,” said Kyle Thompson, who made two video calls over the course of the pandemic from the Kentucky State Reformatory in Oldham County.

The new contract also brings a big benefit for the Department of Corrections: the new, $4.1 million up-front payment in addition to a larger guaranteed revenue of $3.5 million a year.

The DOC said at a recent legislative hearing that the money goes into a restricted fund for repairs and maintenance at DOC facilities.

That was a surprise to Thompson, who makes phone calls from a crowded hallway, sandwiched between the washing and dryer machines and bathrooms.

“I’m in a building that was built in the 1930s,” said Thompson, who is serving a sentence of life without parole. “You’d think if they were paying for repairs they would try to repair the leaks. They’d try to get rid of the mold, at least.”

Thompson said there’s no air conditioning in that room, and he had to quickly end a call in June when he began to suffer symptoms of heat exhaustion. 

The calls end automatically at 30 minutes.

“It’s very dehumanizing when it comes to someone like your mother or your father when you can’t talk about the things that you need to talk about and you’re constantly pressured to have a certain amount of time,” Thompson said. “We don’t always have the money to call back so a lot of times you’ll forget things or they will be delayed because of that.”

His mother, Valerie Prater, says she spends about $1,200 a year staying in contact with him. That includes emails that cost 44 cents a piece, plus another 44 cents to share a family photo.

Prater is unemployed, and her husband is retired. 

“At times I’ve charged my credit cards to be able to talk to him,” Prater said. “I’ve not bought something just so I can load money on the phone to be able to communicate with him because I can’t imagine what would happen if Kyle couldn’t talk to me.”

Neither Thompson nor his mother knew that the Kentucky Department of Corrections takes a cut of the money they spend.

“With the Department of Corrections, I mean they already make really massive amounts of money,” Thompson said. “You’d think that they would try and keep everyone peaceful and keep the prison calm, and that they would try to charge as small an amount of money as they can.”

Contact Jared Bennett at 502.814.6543 or jbennett@kycir.org.

Correction: Figures reflecting the value of Securus’ debt were incorrect in a previous version of this story and have been deleted.

The post The Pandemic Isolated Incarcerated People. Kentucky And Securus Cashed In appeared first on Kentucky Center for Investigative Reporting.

LMPD Detective Resigns Amid Sexual Abuse Probe Friday, Jun 18 2021 

Facing accusations of sexual misconduct that date as far back as 2016, Det. Brian Bailey has resigned from the Louisville Metro Police Department.

Bailey was a prolific narcotics detective who obtained more residential search warrants than any other officer between January 2019 and June 2020, according to a joint investigation by KyCIR and WDRB News. The warrants virtually always were based on evidence from confidential informants — and he’s been accused of sexually abusing and harassing women he had coerced into becoming informants.

In all, four women working as confidential informants have publicly accused Bailey of sending explicit photos and forcing them to engage in sexual acts under the threat of criminal charges, and he’s been investigated internally at least twice.

LMPD Chief Erika Shields said on Thursday that LMPD has turned over its most recent Public Integrity Unit investigation into Bailey to the Jefferson County Commonwealth’s Attorney, and that the former detective could potentially face criminal charges. She did not specify what he could be charged for.

Shields said the accusations against Bailey, if found to be true, are “disgusting.”

“It’s appalling that any cop would even consider engaging in this behavior,” she said.

Jefferson Commonwealth’s Attorney Thomas B. Wine said his office has received the investigation and will review it to determine if criminal charges are warranted. 

Attorney Vince Johnson, who represents two women who have filed lawsuits against Bailey, police and the city, said the detective “should have been fired by LMPD many years ago. 

“That would have saved my clients and others from his pattern of sexual abuse.”

Bailey is the second LMPD officer this week to resign from the agency while under investigation and one of several to be accused of sexual misconduct in recent years. The U.S. Department of Justice is currently investigating the LMPD to determine if the department has a pattern or practice of violating citizens’ civil rights.

Bailey was put on paid administrative leave in May 2020, according to a department spokesperson. Before that, he was a detective in the Criminal Interdiction Division’s Major Case Unit making $61,900, but city records show he routinely earned more than his listed salary thanks to overtime — topping out at $96,700 in 2018. 

In October 2020, Bailey was put on administrative duty, where he was assigned to the department’s fleet management detail and assisted in answering phone calls and washing cars and other duties, according to a department spokesperson.

His last day was Wednesday, according to his resignation letter. 

Before he was taken off the streets, Bailey was notorious for search warrants based on information provided by confidential informants. Bailey obtained more residential search warrants than any other LMPD officer between January 2019 and June 2020, according to an analysis by KyCIR and WDRB News of all 472 publicly available warrants from that period. He obtained more search warrants than the next two officers combined.

All but one of Bailey’s warrants reviewed by KyCIR and WDRB was based, at least in part, on the word of confidential informants. 

Attorneys have raised flags about Bailey’s use of confidential informants, accusing him in court of relying on “boilerplate” affidavits and, in some cases, making up information.

In lawsuits, Bailey is accused of coercing women to work as confidential informants. One woman claims he pressured and threatened her to work as a confidential informant after arresting her boyfriend on drug charges in July 2018. The woman — who is not named in the lawsuit — claimed Bailey sexually assaulted her for two years while she worked as an informant.

In February, Wine said prosecutors were working to resolve active cases in which Bailey was the arresting officer due to the nature of the allegations against him.

On Thursday of this week, a case involving two people — a man and a woman — came up in Jefferson Circuit Court. The pair was arrested in January 2020 after police executed an early morning search warrant at a home in Chickasaw. The warrant, obtained by Bailey, was based on information provided by a confidential informant.

In court, the investigation into Bailey wasn’t addressed, but the charges against the woman were dismissed. Her attorney, Casey McCall, said she should have never been charged to begin with. The man charged in the case will be back in court next month.

Hearing Bailey resigned, McCall said the city is better off with him gone.

“There are a lot of good police that he makes look bad,” he said.  

Travis Ragsdale contributed to this report.

The post LMPD Detective Resigns Amid Sexual Abuse Probe appeared first on Kentucky Center for Investigative Reporting.

Search Warrant Task Force Has Big Job And Looming Deadline Monday, May 24 2021 

The Kentucky Attorney General’s search warrant task force has just seven months to get a grip on the state’s sprawling system of issuing and executing search warrants and provide recommendations for possible reform.

They met for the first time Monday, nine months after Attorney General Daniel Cameron announced his intent to form the task force in the wake of Louisville police officers killing Breonna Taylor while executing a search warrant. The meeting’s light agenda consisted of introductions, a presentation on the history of search warrants and members receiving subcommittee assignments.

The group will have until the end of the year to conclude its work, Cameron said. Though the task force was announced last September, he issued an executive order formalizing the body in January, setting the course for finishing the work before the new year. Months later, as KyCIR reported that the group hadn’t met or set any plans to do so, he announced the members of the 18-member group and set the first meeting.

The task force will meet monthly throughout the year, breaking off into three subcommittees to review the ways search warrants are secured, reviewed, and executed. 

“It’s very clear how important this responsibility is,” Cameron said in his opening remarks. “We will work very well together over the course of these next six or seven months.”

The group is made up largely of police, prosecutors, judges, legislators and representatives of government bodies. Introductions filled a bulk of the meeting, during which many offered a bridled enthusiasm for their task of examining the system that lacks uniformity across the state.

“There’s about 120 different ways to do it,” said Joseph Ross, the Logan County Attorney and task force member representing the Kentucky County Attorney’s Association.

The sprawling scope of search warrant systems is complicated further by the lack of any statewide or sometimes even local database where warrants can be accessed, making the collection and review a cumbersome, if not impossible, process, said Damon Preston, the state’s Public Advocate.

Preston wants to know how many warrants were sought, approved and executed, or denied. But presently “we have no way of knowing,” he said.

“I hope we can create a foundation for accessing data moving forward,” Preston said.

Investing in search warrant technology upgrades for court systems is on the radar for state Sen. Whitney Westerfield, the chair of the senate judiciary committee and a member of the task force.

“To make things more efficient and simpler,” he said. 

The work of the task force will help guide legislators as they draft policy and allocate funds in the future, Westerfield said.

Judge On Search Warrant Task Force Disciplined For Public Opinions on Search Warrant Procedure

Police representatives on the task force offered little insight into what, if any, specific reforms they’re seeking in regards to search warrants.

Joe Monroe, the chief of the University of Kentucky Police Department and representative for the Kentucky Association of Chiefs of Police, said only that he’s hoping to develop a statewide model that’s fair and safe for everyone. 

But any effort to impose strict uniformity across the state’s jurisdictions will likely be met with opposition.

Rob Sanders, the Kenton County Commonwealth’s Attorney, said he’s “read in the media” that some jurisdictions “need a lot more improvement than others.”

“I want to make sure that in the process of fixing one circuit we don’t manage to break another circuit,” he said. 

The group has faced scrutiny for the lack of urgency in meeting and for being comprised mostly of members of the law enforcement community. 

Preston, the public advocate, raised one more voice he thought was missing: the people who get searched.

“That’s the most important part of this,” Preston said. “Not just the technical parts of how you get it, but what are the real life impacts of a search warrant.”

The post Search Warrant Task Force Has Big Job And Looming Deadline appeared first on Kentucky Center for Investigative Reporting.

Metro To Require Vaccination Status From City Workers Wednesday, May 19 2021 

With incomplete city data showing more than half of Metro government employees are vaccinated and incentives to share that information proving ineffective, the city intends to start requiring employees to share their status.

Right now, reporting vaccine status is voluntary. Those who provide proof receive two extra vacation days. But vaccination totals vary greatly from agency to agency — and so does the motivational value of vacation days that are easier to take in some jobs than others.

Ernestine Booth-Henry, director of Metro’s Human Resources department, said she was expecting an uptick in people showing they’d been vaccinated after the incentive was offered, but the data doesn’t reflect that expectation. She said they worked to inform and educate people about the vaccine and schedule vaccination appointments for workers through a city-run vaccination program. 

“I think we’ve gone above and beyond with offering it and making it available to the employees,” Booth-Henry said. “Again, it’s a personal choice and outside of mandating it to our employees, I think we have done everything that we could have done to encourage and allow employees to get vaccinated.”

She said as more people report to jobs on-site in the coming weeks, city officials “need a better gauge on who has and has not been vaccinated.” But that doesn’t mean a vaccine will be required. 

The Jefferson County Attorney’s Office advised Metro officials that there are “significant legal concerns that should be resolved” before a vaccine requirement for city workers is considered, Booth-Henry said.

“Our focus is on encouraging all Metro employees to receive the vaccine, removing barriers that might keep them from it, including education and greater access,” she said.

David James, Metro Council president and a candidate for mayor, said unless the Centers for Disease Control and Prevention requires vaccination status to be shared, it isn’t anyone’s business to know. He did share he had been vaccinated.

“I just think that we as a nation, as a city, as a government organization should try to get as many people vaccinated as possible,” James said.

White Departments Show More Vaccinations

City officials and worker representatives are hesitant to rely on the data as a true look at the vaccination status of city employees, due to the caveat that providing the information is not required. But the data they’ve collected so far shows Metro government’s vaccine demographics reflect that of the community it serves, where Black people have been vaccinated at a lower rate. 

The city departments with highest vaccination rates – Economic Development, the Mayor’s Office, Criminal Justice Commission and Civic Innovation and Technology – are majority white office jobs. Of the majority white agencies, the vaccination rate ranges from 100% in Economic Development to 23% in the Department of Corrections.

The vaccination rate of departments that are majority Black is lower than the Metro average. Of the seven city agencies with majority Black employees, an average of 40% of the department’s employees have reported being vaccinated. 

At Public Works and Assets – Solid Waste, where 14% of employees report being vaccinated, the department is the lowest included in the data. The department is 16% white, 83% Black and 1% Hispanic. That’s where the city will bring its first on-site mobile vaccination clinic for workers, Booth-Henry said.

The department spokesperson directed reporters to the Mayor’s office for questions about the agency’s vaccination status, and a union representative couldn’t be reached for comment.

Some of the more community-involved departments — those more likely to be working in the field and exposed to COVID-19 at work — report lower vaccination numbers. At Louisville Metro Police Department, 34% of employees report being vaccinated. Emergency Medical Services reports 26% are vaccinated, and the Department of Corrections reports 23%.

Jean Porter, a spokesperson for the Mayor’s Office, said the city isn’t tracking how many of those workers have already been infected with COVID-19.

According to state data, Jefferson County as a whole is 47% vaccinated. In Kentucky, 5.5% of the people who have gotten the first dose of the vaccine are Black, while Black people are 8.5% of the population.

Value of Incentive Varies

Dave Mutchler, LMPD union spokesperson, said there’s been a variety of perspectives from officers on getting the vaccine, but extra vacation days wasn’t likely a factor. 

The use of vacation days for the LMPD has been “very restrictive” this past year, given how often time off was canceled while officers responded to protests. Officers have probably accumulated more vacation days than normal, Mutchler said. 

Also, it’s hard for officers to take vacation days due to understaffing, overtime needs and rules about how many people in a patrol should be working at any given time, he said. 

Two “days” off doesn’t really equate for two days for LMPD either, he said. They do work in hours since there are different jobs that work different amounts of time. 

In previous years, there’s been a minimum amount of vacation days allowed to roll over from the previous year. Mutchler said this year, the union and Metro government came to an agreement to raise the maximum amount of vacation rollover due to the state of emergency.

And, police officers like their privacy, Mutchler said. The offer of two vacation days isn’t enough to give that up.

“They probably hold the things that they are allowed to keep personally private a little closer than they normally would,” he said.

A spokesperson from the Department of Corrections — where 23% of employees have reported being vaccinated —  did not respond to an interview request.

Ed Pennix, a housing specialist in Resilience and Community Service and the lead steward of the department’s union chapter, said it isn’t bothersome right now that the vaccine isn’t mandated but if everyone was called back to work in-person, it might be a cause for concern. 

Resilience and Community Services, where 45% of employees report being vaccinated, is located in an open-space office, Pennix said. That doesn’t feel like a good number for the space they’re in. 

Pennix said he didn’t know about the vacation days incentive when he got vaccinated; he and others in the department found out when someone asked about it during a labor management meeting. Pennix said the city “did pretty good” in helping remove barriers that could prevent workers from getting time to get the vaccine, like allowing time off to go get the vaccine, and the additional vacation days were pretty good.

“I don’t think it was going to cost us anything to be off, as far as burning our own time,” he said.

Jacob Ryan contributed to this report

The post Metro To Require Vaccination Status From City Workers appeared first on Kentucky Center for Investigative Reporting.

Ky. National Guard Releases Heavily Redacted Review of Louisville Deployment Tuesday, May 18 2021 

An administrative investigation into the Kentucky National Guard’s fatal deployment to Louisville last summer concluded that soldiers followed proper training and procedures when responding to protests — and when officers returned gunfire and killed David McAtee.

But how the investigation drew those conclusions and what lessons they learned from the deployment remain secret, because most of the documents provided to the Kentucky Center for Investigative Reporting in response to an open records request are heavily redacted.

The guard has refused to name the soldier who shot David McAtee or the unit they were part of, and nearly all the recommendations for future crowd control deployments were completely blacked out.

A page from the Kentucky National Guard’s after-action report.

Kentucky National Guard spokesperson Lt. Col. Stephen Martin said in an email that most of the details and recommendations won’t be shared with the public “due to operational security and protection of the force requirements.”

Specific information related to the killing of McAtee was withheld at the request of the Department of Justice, which is still conducting its own investigation into the shooting and asked the guard not to release information that could be used in federal prosecutions.

KyCIR first requested the documents last July, and the investigation was projected to be complete soon after. National Guard spokesperson Martin said as recently as this month that the report was not finished, citing “other priorities” for the investigators. But the after-action report is dated in late June 2020, and the administrative investigation is dated Aug. 30, 2020.

When asked why the report wasn’t released sooner, Martin said the report was subject to a review through the chain of command. He provided a letter from the guard’s attorney saying the legal review was complete; that letter was dated the afternoon of May 5, the same day KyCIR published a story about the delayed release of the report.

The McAtee Investigation

Gov. Andy Beshear activated the guard on May 30 to support law enforcement in Louisville after large protests over the police killing of Breonna Taylor erupted downtown. Beshear’s activation order says he was calling in the National Guard “for the purposes of protecting lives and property and enforcing the laws of the Commonwealth.”

The records released this week include the “mission tasking order” from that deployment, which explains the threats the guard was called to respond to and the specific instructions given to deployed soldiers, but that information is all redacted.

After midnight on June 1, after the protests downtown had dispersed, soldiers accompanied Louisville Metro Police officers to the West End, where a large and predominantly Black crowd was gathered in a parking lot at the corner of 26th Street and West Broadway. LMPD officers fired pepper balls into the crowd and at McAtee’s restaurant, Yaya’s BBQ. As people ran into his restaurant, McAtee leaned out the door and fired a shot; when he leaned out a second time, two LMPD officers and two members of the National Guard fired their weapons. A Guardsman fired the only bullet that struck and killed McAtee.

The National Guard ended its mission in Louisville on June 7.

By then, Brigadier General Bryan Howay had already commissioned an investigator from the Indiana National Guard to answer a few questions raised in the wake of McAtee’s killing. 

Those questions included:

  • Why was this particular (and to the public, unnamed) unit tasked with this mission? 
  • Were they properly trained in crowd control? 
  • Were they qualified to use the M-4 rifles they carried and fired when they shot McAtee?
  • Were they given specific instructions on use of force during the mission? 
  • And was their use of force consistent with the mission, command policy and state law?

On each point, the investigative officer, Brigadier General Steven T. King of the Indiana National Guard, found the guard members were prepared, well trained and acted lawfully.

The After-Action Review

The after-action review included 66 recommendations, but only three were made public. One noted that the guard should continue to provide soldiers with resources around behavioral health. The other two dealt with personnel reports.

The review did include one “overall recommendation”: that the Kentucky National Guard develop response guidelines and make sure command staff can deliver on the responses for similar actions.

But much of the specifics contained in the review are redacted. Even a paragraph explaining the concept of an after-action report was deemed by the guard to be private.

A timeline of the events of early June was redacted, according to the guard, because revealing the information has a “reasonable likelihood” of threatening public safety.

A timeline from the National Guard’s after-action review is almost entirely redacted.

When asked to summarize what the National Guard would do differently while responding to future protests, Martin of the Kentucky National Guard said only that the records were not releasable.

The post Ky. National Guard Releases Heavily Redacted Review of Louisville Deployment appeared first on Kentucky Center for Investigative Reporting.

Judge On Search Warrant Task Force Disciplined For Public Opinions on Warrant Procedure Wednesday, May 12 2021 

A member of the Kentucky Attorney General’s search warrant task force was sanctioned this year for publicly defending the search warrant process and the judge who approved the warrant for Breonna Taylor’s home.

Jefferson Circuit Court Judge Charles Cunningham received a private reprimand from the Judicial Conduct Commission in January for comments he made in an op-ed published in The Courier Journal. The reprimand doesn’t name Cunningham, but he confirmed to KyCIR that he is the subject of the disciplinary action.

Cunningham was publicly named last week as a member of the task force the attorney general will charge with scrutinizing and suggesting possible reforms for how search warrants are obtained and executed in Kentucky.

In the opinion article published last July, Cunningham shot down the need to randomize search warrant assignments to judges and to record their conversations with law enforcement officers seeking warrants. Both were reforms proposed in an earlier op-ed by Louisville attorney Ted Shouse.

Cunningham went on to defend the integrity of the judge who signed the much criticized search warrant that led to Taylor’s killing. 

That warrant is still the focus of an ongoing federal investigation, and the Louisville Metro Police Department fired the officer who obtained it, alleging he lied in his affidavit.

The judicial commission ruled that Cunningham violated the Judicial Code of Conduct by making comments that could affect the outcome or impair the fairness of impending court matters. By personally attacking a local attorney, Cunningham failed to uphold a standard of patience, dignity and courtesy required of judges in Kentucky, the reprimand said.

Cunningham has been on the bench since 2008.

He said in an interview this week that “there is no basis for someone to contend that Charlie Cunningham’s mind is made up” regarding the system of issuing search warrants.

“I never said the policy is perfect,” he said.

Criminal justice reform advocates say the judge’s actions go beyond a mere violation of rules, and instead serve as proof that the deck is stacked against any effort to change the system of search warrant issuance.

“I think it does call into question the viewpoint diversity on that task force,” said Corey Shapiro, the legal director for the American Civil Liberties Union of Kentucky. “We already had concerns that it was not fully representative of what the community wanted to see.”

One judicial ethics expert said Cunningham’s comments — and his position as a sitting judge — should disqualify him from serving on the task force. 

“Judges ought to stay the hell out of politics,” said Charles W. Wolfram, a professor emeritus at Cornell Law School. “I find it very disturbing.”

Wolfram said no sitting judge should have been tapped to serve on the task force, which could influence policy decisions. A better choice, he said, could be a retired judge with knowledge of how the system works but no stake in it, or an expert who studies the process of warrant issuance.

“It’s a real mistake and not consistent with the independence of the judicial code for judges to be taking policy positions on political issues,” he said. 

Cunningham is one of two current judges the Chief Justice of the Supreme Court, John Minton, appointed to serve on the search warrant task force. Christian County District Court Judge Foster Cottoff will also serve on the task force.

In an emailed statement, Minton’s spokesperson said the chief justice “is confident in Judge Cunningham’s ability to serve impartially on the attorney general’s task force.”

Jefferson Circuit Court Chief Judge Angela McCormick Bisig declined to comment on the particulars of the sanction against Cunningham, but defended the judge, calling him a “hard working, thoughtful colleague.”

Cameron’s spokesperson, in an emailed statement, did not directly address the disciplinary action levied against Cunningham, nor did she respond to the question of if Cunningham should be removed from the group.

“The members of the task force represent every aspect of the search warrant process, and each member will bring his or her own opinions, experiences, and ideas to bear as part of the conversation,” she said.  

Task Force Slow To Start

Cameron formed the search warrant task force as a direct result of the police killing of Breonna Taylor. He announced it during a September 2020 press conference, after  a grand jury convened by his office brought no criminal charges for the death of Breonna Taylor, 26, who LMPD officers shot and killed in her home during the execution of a search warrant.

Cameron formally launched the task force with an executive order in January.

Now, nearly eight months since the announcement, it hasn’t met. It’s first meeting is set for May 24. Cameron announced the group’s members last week, after KyCIR asked for comment about the task force’s inaction.

Cameron told WDRB News in an interview broadcast on Tuesday that he is hopeful the task force will propel Kentucky to be a national model for how search warrants are processed.

Taylor’s killing sparked change at the executive and legislative branches of government, but judges have been averse to adopting any notable changes. In November 2020, Jefferson District Court judges voted down a proposal from fellow district judge Julie Kaelin that aimed to bring more transparency and oversight to the search warrant system. 

Jefferson Circuit Court judges did take one step to promote transparency, however, after a report from KyCIR and WDRB News found their signatures on search warrants were often illegible: The judges began using stamps imprinted with their name.

A Spat in the Papers

Cunningham’s article was a direct response to an op-ed penned by local defense attorney Ted Shouse. He called for pointed reforms to how warrants are issued in articles published by The Courier Journal and in the Louisville Bar Association newsletter.

Shouse wrote that the communication between judges and the law enforcement officers who seek a warrant should be recorded. Additionally, he said there should be a process to randomly assign judges to review search warrants.

Cunningham responded sharply. He shot down the necessity and practicality of the reforms and accused Shouse of trying to mislead the public to gain support for changes that would serve the interests of defense attorneys and defendants.

“Those sorts of misstatements can be chalked up to ignorance,” Cunningham wrote.

The commission noted the judge’s tone in its ruling that Cunningham violated a provision of the Judicial Code of Conduct that requires judges by “patient, dignified and courteous to lawyers and others with whom the judge deals in an official capacity.” 

In an interview this week, Shouse dismissed the squabble as a side-show.

“I’ve been called names before,” he said. “The real issue here is that Breonna Taylor was killed by Louisville police officers and it was a search warrant that brought those officers to her door.”

In his op-ed, Cunningham defended Circuit Judge Mary Shaw, who issued that warrant, and her process for that particular warrant. 

“Judge Shaw did nothing wrong,” Cunningham wrote. “She methodically applied the law as it then existed to the facts as presented to her.”

The Judicial Conduct Commission ruled that Cunningham’s specific comments violated a rule that prohibits judges from “making public statements which might reasonably be expected to impair the fairness of a matter impending in any court.”

Shapiro, with the ACLU of Kentucky, said in defending Shaw, Cunningham showed a troubling bias that permeates the courts — “that judges can do no wrong.”

When asked if he regrets penning the op-ed, Cunningham declined to comment.

Judicial Discipline Rare, Somewhat Secret

Cunningham has been sanctioned at least twice by the Judicial Conduct Commission since 2013, according to records of judicial disciplinary actions maintained on the commissions website.

In 2018, the commission ruled that Cunningham had failed to notify prosecutors of certain court actions and talked to a defendant’s counsel without the prosecutor’s knowledge. For that, he was publicly reprimanded.

The group issues just a handful of sanctions each year — no more than eight each year since 2013 — and the members don’t discuss their work.

The Judicial Conduct Commission consists of six members and four alternate members, which include judges, attorneys and citizens. The chair, R. Michael Sullivan, an Owensboro attorney, said the group is bound by its rules to keep mum on any investigative matters or disciplinary actions.

Nationally, discipline against judges is also somewhat rare. In 2020, at least 127 sanctions were levied against sitting state judges across the country, according to a report from the National Center for State Courts.

Cynthia Gray, who compiles data about each disciplinary action for the center, said some judges will take the sanctions to heart and try to learn from their mistakes. Others, though, she said, will double down.

A sanction stemming from an op-ed is rare, Gray said. Judges are instead commonly disciplined for demeaning or belittling defendants or attorneys in open court, or for posts to social media.

As for making public comments, there is value in getting an inside look at what a judge thinks about certain issues, especially those that pertain to the administration of justice, said Kevin S. Burke, a former district court judge from Minneapolis.

“Just because you’re a judge doesn’t mean I can’t talk about things about the criminal justice system,” he said. “But you have to be careful, there is a fine line.”

And perhaps most of all, they shouldn’t be rude, Burke said — pointing to a quote from the former attorney and politician Morris Udall, who asked God to “give me the grace to make my words gentle and tender, for tomorrow I might eat them.”

Contact Jacob Ryan at jryan@kycir.org.

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