Early releases will put penal code reform to test

1,000 state prisoners will go free Tuesday

jkegley@herald-leader.comJanuary 3, 2012 

It has been nearly six months since the most sweeping changes to Kentucky's penal code in decades, but the first major test of the philosophy behind them will begin Tuesday when nearly 1,000 state prisoners are granted early release.

House Bill 463, the comprehensive and controversial overhaul that became state law June 8, was intended to save more than $40 million a year in Department of Corrections costs, with a large chunk of those savings being reinvested in community supervision and counseling programs to keep prisoners from ending up back behind bars on the taxpayers' dime.

The prisoners released Tuesday will be monitored by the department of probation and parole for the last six months of their sentences. If successful, the state could see millions of dollars in savings from the first batch of releases alone.

The average yearly cost to incarcerate a state prisoner in Kentucky is $21,906, according to data from the Department of Corrections. The average cost to supervise out-of-custody criminals is a fraction of that — $987.

Savings probably won't be calculable until later this year, Kentucky Justice Cabinet Secretary J. Michael Brown said. Other portions of the bill are still works in progress.

The day the prisoners will be released also marks the start of the 2012 legislative session, during which lawmakers will review more potential changes to Kentucky's penal code proposed by the task force that drafted HB 463.

The Task Force on the Penal Code and Controlled Substances Act — a bipartisan committee chaired by state Rep. John Tilley, D-Hopkinsville, and Sen. Tom Jensen, R-London — submitted 23 recommendations to the General Assembly last month detailing proposed changes to the law.

Proposals include repealing rarely used and outdated laws; dropping the long-standing Class A, B, C and D sentencing structure for felonies in favor of a system that clearly delineates between crimes against people and crimes against property; creating a statewide gang member database to track growing gang activity; tightening restrictions on clinics that distribute high numbers of prescription pain pills; and re-evaluating employment restrictions for convicted felons.

The recommendations would have to be sponsored as individual bills, approved by the legislature and signed by Gov. Steve Beshear to take effect.

Not all of the task force's recommendations would create entirely new provisions. Several of the recommendations are intended to clarify parts of HB 463 that have caused confusion in local jurisdictions and, in some cases, made it harder for prosecutors and police to keep repeat offenders off the street.

"That is one reason we kept the task force in place, so we can look at and make some recommendations to the legislature," Jensen said. "We're going to have to modify it in some respects."

Inconsistencies

When crafting HB 463, the task force emphasized substance-abuse treatment as an alternative to incarceration; people serving sentences for drug crimes comprise about a quarter of Kentucky's 21,000 prisoners.

The goal was to "break the cycle of drug abuse and drug addiction that we have in this state" while reducing crime rates, Jensen said.

Barring a few exceptions, police no longer may arrest people charged with misdemeanor-level drug crimes, such as possession of marijuana or possession of drug paraphernalia. Instead, officers must write citations, similar to traffic tickets, telling people when to report to court.

However, more than just drug crimes were decriminalized when the bill was approved. Misdemeanors such as receiving stolen property, theft under $500, possession of burglar's tools, and first- and second-degree criminal trespass are no longer subject to arrest.

There are exceptions: police still may arrest for misdemeanor sex crimes, gun crimes, DUIs and violations of emergency protective orders. Other exceptions are more vague: Officers may arrest for all misdemeanors if the suspects pose a danger to themselves or others, if they refuse an officer's "reasonable request" to stop their activity, or if the officer has reason to think the person will not show up for court.

Those guidelines can create problems for police, Lexington police Lt. Chris Van Brackel said. What constitutes a "reasonable request"? What criteria do police use to decide whether a suspect will appear in court?

"What one police officer thinks is reasonable, a judge may disagree with later," he said.

Each of the department's 500-plus officers has completed three hours of in-service training on the new law, but confusion still reigns because of vague wording and inconsistencies.

"In the process of creating this (bill) quickly, they created these weird dichotomies," Van Brackel said.

For example, the bill limited what misdemeanors were subject to arrest, but it didn't limit "violations," a less serious type of crime on the same level of traffic citations.

Police can't arrest for first-degree criminal trespass (refusing to leave a business) or second-degree criminal trespass (refusing to leave a home), which are both misdemeanors. But they still may arrest someone for third-degree criminal trespass, the refusal to leave someone's yard, which is considered a violation and less serious than its misdemeanor counterparts.

Other violations subject to arrest include tractor-trailer weight violations, driving a boat under the influence, and careless driving.

Van Brackel noted that police may not arrest for any misdemeanor related to synthetic drugs sold as bath salts, "even trafficking, even in a school," despite the fact that abuse of bath salts was deemed to be such a hazard that Beshear signed an emergency law banning them several months before HB 463 took effect.

Another point of widespread confusion outlined in the task force's recommendations is "bail credit," a provision that knocks $100 off a prisoner's bond for every day they spend in jail. The law does not clearly define what constitutes "a day," the report said. In some jurisdictions, someone might be given a day's credit for serving just a few minutes.

The bill's passage also created confusion on drug court statutes, pretrial releases of inmates and "deferred prosecution," which allows people to have Class D felony charges dropped if offenders meet certain criteria.

All of the clarifications will be reviewed, but some are more likely to lead to changes than others. Some, such as the bail credit provisions, just might be an example of growing pains, said Brown, who was a member of the task force that crafted the bill.

"It's sort of felt by the task force that it needs to be looked at, but I don't think there's going to be any rush to change those things yet," he said. "I think there's a feeling that it's just new ... and that stuff will get worked out."

Effects in Lexington

In Fayette County, reception of HB 463 has been mixed. Other than changes in arrest power, much of the effects of the bill have not been felt by prosecutors and jail officials.

The Fayette County Detention Center has seen some cost savings from fewer arrests and more pretrial releases of inmates, interim director Ray Sabbatine said. But the money the jail saves from not having to feed, house and supervise an inmate probably will get added back on when he or she returns to jail after conviction, he said.

There's also the possibility the offender will commit another crime while out of jail — the non-violent offenders targeted by the bill for early release are the mostly likely to commit more crimes, a statistic Commonwealth's Attorney Ray Larson and Sabbatine agreed on.

The added criminal charge probably would result in a longer sentence, meaning the jail would be spending more money to house the prisoner than if he had stayed in jail pending his trial and was not given the chance to commit another crime.

Of the 996 prisoners who are being released Tuesday, none is coming from the Fayette County Detention Center, Sabbatine said. The jail does not house state prisoners.

Since HB 463 became law, only 15 to 20 people have applied for deferred prosecution in Fayette County, meaning drug charges against that person could be dropped if certain criteria are met, usually a treatment program, Larson said.

"I think (legislators) were probably expecting significantly more than that," he said. "They are assuming everyone who is addicted wants to be unaddicted. I don't know if that's an assumption you can make."

Cost analysis

Questions remain about whether reducing arrests and releasing inmates is in the public's best interest, but numbers have been promising, according to data released by the state's Department of Corrections.

About 12,500 fewer people were charged with crimes across the state from June 8 to Nov. 8 compared to the same period in 2010, before the bill took effect.

During that period, a higher percentage of offenders was released before trial, saving county jails the expense of housing, supervising and feeding them. A higher percentage showed up for their court dates, while a lower percentage committed new crimes while out on bond.

"On the whole, the bill has done so far what we thought it would do. It's reducing costs," Jensen said.

But the most calculable savings have yet to come: about 3,000 inmates are expected to be released this year, Brown said, including those set to be released Tuesday.

Cost savings hinge on the prisoners staying out of jail. Without some post-release support and supervision, there is a likelihood that many of those released would wind up back behind bars within months, Brown said.

The state has hired about 90 additional employees in the department of probation and parole to handle anticipated higher caseloads. Prisoners will be able to receive job training, home placement assistance and drug counselling.

Ideally, that will mean fewer people behind bars with no decline in public safety.

"As an overall matter of public policy, we want to have fewer criminals than more criminals," Brown said.

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