2011 General Assembly

Proposals to cut Ky. prison population expected Tuesday

much of focus is on drug laws

jcheves@herald-leader.comJanuary 16, 2011 

Acting on a tip about illegal drug sales, police searched Demarcus Taylor's southeast Lexington home in 2009 and found 51 grams of marijuana, digital scales, three narcotic painkiller tablets and $1,546 in cash, according to court records.

That was enough to file misdemeanor charges for possession of drugs and drug paraphernalia, punishable by up to a year in the Fayette County jail. That's where the 25-year-old Taylor sits at present, awaiting his next hearing.

Taylor's house is a half-mile from Squires Elementary School. So police added — as they do more than 2,200 times a year in Kentucky — a charge of drug trafficking within 1,000 yards of a school, a felony that could put him in prison for five years at a cost to taxpayers of about $95,000.

"I've been complaining about this trafficking charge forever," Derek Gordon, Taylor's attorney, said last week. "It's meant for people selling drugs to children on a playground, not people who have two ounces of marijuana in their bedroom and who happen to live six blocks from a school."

On Tuesday, a high-powered committee created to find cheaper alternatives to prison without risking public safety will meet in Frankfort and propose legislation for the 2011 General Assembly. Altering the law about drug trafficking near a school is one of many ideas it has discussed for months.

Other panels have tried this before, only to see their suggestions ignored. But the Task Force on the Penal Code and Controlled Substances Act includes many of the people who would sponsor or lobby for such measures: the chairmen of the House and Senate judiciary committees, a former prosecutor, a defense lawyer, the secretary of the Justice and Public Safety Cabinet and Kentucky's chief justice.

Working with the Pew Center on the States, which was paid $200,000 for its counsel, the task force will suggest ways to cut the state inmate population of nearly 21,000, one-fourth of whom are serving time on drug charges. The state this year will spend more than $460 million on its Corrections Department.

Kentucky courts sentence felons to prison, rather than probation, far more frequently than courts tend to elsewhere, the Pew Center told the task force. Although the state enjoys relatively lower crime rates, one in 92 Kentucky adults is incarcerated compared to one in 100 adults nationally.

Funding for options such as inpatient substance-abuse treatment has remained stagnant for many years, the Pew Center said.

The task force's report was still a work in progress Friday. But much of the panel's discussion over the past year focused on Kentucky's drug laws. The felony charge of trafficking in or near a school is one example of a law that started with good intentions only to go awry, some members said.

"The so-called safe zones are bigger in Kentucky than any other state. The model law was 1,000 feet from the nearest school, not 1,000 yards," said Chief Justice John Minton. "And the way our state law is written, there's no need to show they were selling to children. Intent is taken off the table."

Among the possible changes the task force kicked around is reducing the law's scope to 1,000 feet or requiring evidence that a defendant actually sold drugs to schoolchildren. If someone is caught with a misdemeanor level of marijuana, then perhaps that's how the state should charge them, members said.

"What we're trying to do is get the people who are moving large volumes of drugs and causing a great deal of havoc in our communities and incarcerate them, but not necessarily someone selling one or two pills just to feed their own habit," said Senate Judiciary Chairman Tom Jensen, R-London.

The task force studied the tactics of other cash-strapped states, such as Colorado, which in 2010 spent more on corrections than it did on higher education, according to the Pew Center.

The task force learned that Colorado increased the amount of drugs a defendant can have while facing a possession charge — as compared to trafficking — and it cut longer sentences for repeat drug possession offenders.

But the state added teeth to other laws, including tougher penalties for trafficking to children and possessing "date rape" drugs.

The idea isn't to surrender the war on drugs or loosen every law, Jensen said. Rather, he said, by moving some non-violent offenders from prison to probation or home incarceration, the state can save space for the hardened criminals that it truly wants off the streets.

"I believe in punishment, but let it fit the crime," Jensen said.

Other parts of Kentucky's justice system already are acting.

From 2007 to 2009, the Parole Board cut by 25 percent the number of felons whose parole it revoked for "technical violations" that weren't new crimes, such as failure to attend court-ordered counseling. That contributed to the first drop in the inmate population in several decades.

Kentucky could save millions of dollars by holding fewer inmates, task force members said. However, they added, the state would need to reinvest that money by opening more addiction-treatment programs, particularly in rural areas, and hiring more probation and parole officers, who would see their caseloads climb.

In 2009, the legislature instructed the Corrections Department to develop a substance-abuse treatment program for some felony inmates to divert them from prison. That program, still in its early stages, has fewer than 20 inmates enrolled so far.

The task force heard testimony that Kentucky has 2,812 treatment beds, nowhere near enough to meet demand.

"A big emphasis of our recommendations will be community-based treatment and supervision, so we're not running everyone through the penal system if they don't need to be there," said task force member J. Guthrie True, a Frankfort defense attorney.

"But community-based resources are not adequate right now," True said. "If this legislature does not plow these savings back into treatment, then none of this is really going to work."

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