Daily Independent (Ashland, KY)

Local News

June 19, 2013

Prison reforms having an impact but more could be done

LOUISVILLE — Two years ago, Kentucky was on a path to putting 25,000 of its people behind bars when state lawmakers passed a sweeping reform of drug laws and sentencing and parole rules.

The idea was to save money while maintaining public safety. So how is the legislation working two years later?

There are now about 19,000 state prisoners, down from 22,000 or so in 2010 and approximately what was projected from the reform though the financial savings haven’t yet quite lived up to projections.

But there’s a rub, according to Dr. James Austin of the JFA Institute who worked with Kentucky lawmakers and the Pew Charitable Trust on the 2011 reform legislation.

Kentucky’s crime current crime rate is about what it was in the 1950s and 1960s, Austin said, when the state imprisoned only 5,000 felons. But up until 2011, Kentucky’s incarceration rate (the number of state prisoners per 100,000 of population) had grown dramatically.

Even with the 2011 changes, Kentucky’s incarceration is now about on par with the rest of the country even though its crime rate is much lower.

“This system is having a hard time changing,” Austin told a room full of attorneys, prosecutors and judges Wednesday morning where they gathered at the Galt House for the annual Kentucky Bar Association.

“There are a lot of political, economic interests that resist any effort to try to lower (incarceration rates and costs of) this correctional system and they’re going to have to be addressed if we’re to whittle it down,” Austin said.

Austin provided an example: in past few years the average length of stay behind bars has gone from 22 months to 30 months although sentences have remained steady. That’s because of “truth in sentencing laws” requiring minimum terms of service on a sentence and also somewhat due to parole board decisions.

But Austin said society isn’t getting much out of those extra eight months other than the cost to house prisoners during the extra time. Recidivism rates (reoffending rates by those released from prison) are “exactly the same” for those who serve 22 or 30 months.

Austin said Kentucky’s Persistent Felony Offender (PFO) law — originally written to require enhanced sentences for offenders who had already served two or three prison terms — is another factor in the high incarceration rate and length of time behind bars.

The law’s author, former University of Kentucky Law Professor Robert Lawson, has said the enhancements of the PFO law are the primary cause of exploding prison rates in Kentucky over the past 30 years.

Today, PFO and enhanced drug sentences have been expanded far beyond their original intent and are often used as plea bargaining leverage with defendants who plead out to lesser crimes and sentences rather than risk much longer sentences if they are convicted as a persistent offender — even though this might be their first serious felony charge.

Guthrie True, a noted defense attorney who served on the legislative task force that recommended the 2011 reforms, said Kentucky lawmakers have “expanded PFO laws and violent offender statutes to an unreasonable extent.”

He said genuine violent offenders should go to jail for a long time but “many folks are convicted for offenses that shouldn’t be” covered by those statutes and many of them serve lengthy prison terms they shouldn’t have to serve.

Their sentences don’t fit the crimes they committed, exceeding the crime and the danger they pose to the public. But changes will require political will by lawmakers.

That prompted Circuit Judge Dan Kelly, a former state Senator who helped pass legislation to defer many minor drug offenders into treatment rather than prison, to observe that many of the state’s problems could be addressed if lawmakers possessed political will.

But Austin said Kentucky “can do better,” and he offered some ways to do it. Offer presumptive parole for low-risk prisoners who are very unlikely to re-offend; allow parolees required to get substance abuse treatment as a condition of parole to enroll in programs outside of prison which are often more successful anyway; reducing probation requirements; and “modify” truth in sentencing and PFO laws.

He conceded that last recommendation will be a hard sell to the public and to prosecutors.

J. Michael Brown, Secretary of the Justice and Public Safety Cabinet, said truth in sentencing laws are “really about headlines,” because the public reacts negatively to headlines that someone convicted of manslaughter may get only a 10-year sentence and may only serve a portion of that.

Kelly said many of the recommendations discussed Wednesday involve getting relatively non-dangerous prisoners out of prison sooner.

“In my opinion, the most important thing is not getting them out quicker but not getting them in so quickly,” Kelly said, referring to diversion programs for minor offenses.

He noted that most first-time offenders are young — “they exercise poor judgment and do bad things and of course none of us on this panel ever did that,” he said as the audience laughed.

So, Kelly said, when a young, immature person is sentenced to a treatment or diversion program for a non-violent offense and fails to pass a single drug test or maybe even a second, it serves neither the offender nor the public to reflexively sentence them to prison.

“We can’t expect them to be perfect,” Kelly said.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.


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