When Kentucky lawmakers approved a package of criminal justice reforms in 2011, their goals included a reduced prison population in the commonwealth.
But according to Sen. Danny Carroll (R-Paducah), who is a current member of the Senate Judiciary Committee, that hasn’t happened. He says the number of inmates in Kentucky jails and prisons continues to rise and is now approaching 25,000 people, despite the reforms passed in 2011 and in subsequent legislative sessions.
KET’s Kentucky Tonight explored the successes and failures of criminal justice reform in the commonwealth, and what further steps the 2020 General Assembly could take to address prison overcrowding, incarceration costs, recidivism, addiction treatment, and public safety. The guests for the program were Sen. Carroll, along with Senator Gerald Neal (D-Louisville), a fellow member of the Senate Judiciary Committee; Amanda Hall, a field organizer for the ACLU of Kentucky; and Kenton County Commonwealth’s Attorney Rob Sanders.
’Felonies are Life Changing’
Amanda Hall brings a unique perspective to her work of organizing advocates for criminal justice reform. The eastern Kentucky native received two sentences totaling 10 years for drug trafficking when she gave two prescription pills to a friend who also had an addiction. That friend was also a paid informant.
“I had been in this cycle of incarceration in county jails and then eventually in Kentucky’s only maximum security prison for women, which was very traumatic,” says Hall. “Whenever I was able to get into treatment for my substance use disorder, that’s when my life turned around.”
But Hall had to wait for months to get into treatment because she says the state only has four such programs in jails and prisons for women, yet Kentucky has the second highest percentage of incarcerated women in the United States.
Now seven years into her recovery, Hall travels the state lobbying for so-called smart justice reforms, and she’s a student at the University of Louisville Kent School of Social Work. But her story illustrates a number of challenges posed by the criminal justice system, from what she says is an overly broad definition of criminal trafficking, to restrictions that former felons face in trying to find work and housing.
“I just don’t think that jail is always the best solution for everything,” she says. “These felonies are life changing.”
The Flaws in Early Reforms
House Bill 463, the 2011 criminal reform legislation known as the Public Safety and Offender Accountability Act, reduced charges for certain lower-level drug crimes, required a mandatory period of supervision after an inmate is released, called for reduced sanctions for minor parole violations, and offered some additional access to substance abuse treatment.
From his perspective as a prosecutor, Rob Sanders says the bill didn’t go far enough.
“What we didn’t do with House Bill 463 is much of anything to address the drug addiction and the mental health issues that are causing a lot of this criminal activity in the first place,” says Sanders.
That leads to people committing more crimes upon release, says Sanders, or committing bigger crimes that lead to longer sentences.
Carroll says lawmakers also didn’t expect to see as many problems with parole and probation violations as well as an increase in offenders committing lower-level felonies, which he says comprise almost 60 percent of new entries into prison. As a former Paducah police officer for more than two decades, Carroll says his views on incarceration have changed.
“I was of the opinion, lock them up, throw away the key, they committed the crime,” says Carroll. “Without question, that doesn’t work so I’ve had to rethink the way I look at things… I think treatment is the key, and the lack of resources is really hurting us.”
There are still other issues that HB 463 didn’t resolve, according to Sen. Gerald Neal. He says the legislation failed to provide greater supports during reentry or address the number of juveniles feeding into the prison system and high incarceration rates for people of color. He says tackling these issues is critical to achieving the goals of fewer inmates, lower prison costs, and improved public safety.
“It’s going to be very difficult if we do not take it in a very methodical way and a very thoughtful way and not think just about punishment, but think about how do we get good outcomes,” says Neal, “because people eventually are going to come out, and they’re going to be right next door to you.”
Later Attempts at Reform
Kentucky has enacted other criminal justice reforms since 2011, including a 2015 bill to create “rocket dockets” that allow prosecutors to move certain drug-related cases more quickly through the courts and get offenders into treatment. In 2016 lawmakers passed a felony expungement bill, and then a smaller reform package in 2017 that assisted with reentry issues. But that same year, lawmakers also voted to increase sentences for trafficking small amounts of drugs.
The result of all these changes is that incarceration costs and inmate populations continue to climb. In 2011, the state corrections budget was $469 million a year to house fewer than 22,000 inmates. Now Kentucky spends about $650 million and has more than 24,000 people in jails and prisons.
A criminal justice policy advisory committee formed by Gov. Matt Bevin in 2017 proposed a list of 22 additional reforms the state could pursue. Their recommendations included limits on the use of monetary bail, increasing the felony theft threshold, and treating addiction like a health problem instead of a crime.
Those policy recommendations formed the basis of a sweeping reform bill proposed in the 2018 General Assembly. But House Bill 396 never made it out of committee.
“It was kind of a train-wreck of a bill that I don’t think ever stood a chance of passing,” says Sanders, “in large part because law enforcement really wasn’t included or at least wasn’t listened to when that bill was developed.”
Among the concerns prosecutors and county officials had with the bill, says Sanders, was a provision that would have reduced many nonviolent crimes from felonies to misdemeanors. Sanders contends that would have bankrupted county governments that would’ve been stuck with the expense of housing misdemeanor offenders. (When a county houses a felony offender, the state compensates the county for those costs.)
Reforms for the Future
As lawmakers prepare for the 2020 legislative session, reform advocates, political leaders, law enforcement, prosecutors, and other groups are proposing a range of changes to the state’s criminal justice system.
That includes the idea of reclassifying some felony offenses as well as raising the threshold for felony theft from the current $500. Amanda Hall contends those measures would not only reduce inmate populations and costs, but would also keep many offenders from being saddled with a felony conviction on their records. She also wants lawmakers to revisit what constitutes a violation of parole and probation, and a reform of the state’s cash bail system.
Sen. Neal suggests reclassifying most traffic offenses from misdemeanors to violations, and reducing the penalties for possession of controlled substances.
“We’ve got to rethink what we’re doing with marijuana,” says Neal. “I think we should at least identify small portions that aren’t even a criminal offense, maybe they should be a violation with respect to possession.”
Neal also wants to explore what can be done to address the disproportionately high number of minorities in the criminal justice system. African Americans comprise 8 percent of Kentucky’s population, but 30 percent of the state’s prison population. He proposes requiring legislation to be evaluated for its potential effect on people of color. He says such “racial impact statements” would be similar to how bills are currently reviewed for potential fiscal impacts on the state.
Sanders says he is open to that idea, but he wants lawmakers to consider the impacts that proposed legislation might have on victims as well as the offenders. He says laws should not be passed if there is a disproportionate effect on victims.
Sen. Carroll says criminal justice reforms should promote equality as much as possible. Despite what people may think, he contends police target enforcement actions in high-crime neighborhoods, which he says are often populated by people of color.
“Sometimes those numbers are just going to be there and there is going to be a disparity, not because there’s any intent [but] because of cultural issues [or] economic issues,” says Carroll. “You cannot set a separation where one race is treated differently. That’s not fair any way you look at it.”
Felony Expungement and Voting Rights Restoration
In 2019, lawmakers expanded on the state’s original felony expungement law to make more nonviolent, nonsexual Class D felony offenses eligible for expungement. The update also reduced the waiting period to file for expungement from 10 years to five, and reduced the application fee from $500 to $250.
Carroll and Sanders say they are hesitant to expand eligibility beyond the current range of offenses, arguing that what the public considers a nonviolent crime is different from how state law often defines it. The senator also says it’s crucial that judicial discretion be maintained so that a judge can make expungement decisions on a case-by-case basis. But Carroll says lawmakers could consider a slightly different approach and offer expungement to offenders who commit crimes before they turn 25 years old. He says that would give second chances to young people whose brains haven’t yet fully matured.
A portion of the expungement application fee goes to prosecutors, and Sanders says he could support eliminating most if not all of that fee as long as the state fully funded prosecutors through the normal appropriations process. He also says the rights of victims should be considered in any future changes to the state’s expungement policies.
Restoration of voting rights is another matter. Where many states provide automatic restoration of rights after the completion of a criminal sentence, felons in Kentucky must appeal to the governor to have their ballot access restored. As a result, the commonwealth has the nation’s highest rate of African American disenfranchisement.
Carroll says voting rights are important, but he says he could not allow restoration for those who have committed certain offenses like attempted murder or drug trafficking.
Another proposal that died in committee during the 2019 session but that will likely resurface in 2020 is bail reform. House Bill 94 would have substantially reduced the use of money bail in the state by requiring judges to use a pretrial assessment tool to determine the risk a defendant poses. Judges could impose a non-financial bond for those offenders deemed to be of low or moderate risk.
Research from the Louisville-based Pegasus Institute shows that more than 64,000 nonviolent, nonsexual offenders were detained in 2016 simply because they could not afford to pay the bail that was set for them. Those individuals end up spending weeks or months in jail, which increases their risk of recidivism and costs the state and counties millions of dollars. A Kentucky Chamber of Commerce survey found that three-quarters of Kentuckians support eliminating cash bail for low-risk offenders.
Sanders opposed HB 94 because he contends use of the assessment algorithm is a “cookie-cutter” approach that undermines judicial discretion. He also wants there to be more local control so that voters can decide whether to elect prosecutors and judges who may be tougher on criminal offenders.
Neal prefers a no-money bail system, but he admits that raises questions about how to deal with individuals to fail to appear in court. But he says other jurisdictions have successfully dealt with that issue, so Kentucky should be able to as well.