After 3 years, overhaul of Kentucky's drug-crime laws hasn't created expected savings

jcheves@herald-leader.comFebruary 15, 2014 

FRANKFORT — An ambitious penal reform law the General Assembly passed three years ago has failed to save as much money as promised, although it is yielding other successes.

When Gov. Steve Beshear signed House Bill 463 into law in March 2011, reducing the penalties for some drug crimes and steering the defendants into addiction treatment, lawmakers predicted $400 million in savings over the next decade.

At the time, Kentucky spent $469 million a year on its Corrections Department. This fiscal year, it expects to spend $499 million, and by 2016, that's budgeted to nudge past $500 million.

"If we basically keep holding steady in appropriations, I would be disappointed. I would hope we could see some real savings from this as opposed to just flat-lining," said House Judiciary Chairman John Tilley, D-Hopkinsville, one of the co-sponsors of HB 463.

For reformers who backed the law, the good news is that Kentucky's once-skyrocketing state inmate population — which had approached 23,000 — now fluctuates most of the time between 20,500 and 21,500. On a recent weekday, the state's 12 prisons held 12,128 inmates, with 8,416 more housed in local jails and 595 others finishing their time in halfway houses, for a total of 21,139.

Since 2011, the Corrections Department has been able to pull inmates from three private prisons and convert a state prison in Frankfort into a Kentucky State Police training center. It has realized an estimated $34.3 million in savings, plowing much of that back into addiction treatment programs. The department has 5,764 much-needed treatment beds at various facilities, up by 1,831 since 2011.

The bad news: The state inmate population was supposed to be 2,000 fewer by now under projections that were part of the reform law.

Also, about a thousand state inmates who have disappeared from prisons shifted to local jails. That's cheaper for the state — the $31 daily payment to jailers per inmate is about half what the prisons spend. But jails tend to be overcrowded, with few of the educational and vocational programs available in prison. Jails were built to hold short-term prisoners near a county courthouse, not for five-year felony sentences.

"Moving them to jail does reduce cost," said University of Kentucky law professor Robert Lawson, who helped write much of the state's penal code and rules of evidence over the decades.

"But it reduces cost at the expense of how it treats inmates, having them sleep on the floor almost on top of each other, no rehabilitation programs, no separate dining area, hardly ever leaving their cells," Lawson said. "The way we're treating these inmates is not correcting anything. Sooner or later they nearly all come out, and if all we've shown them is destructive behavior, then we're making things more dangerous."

'Return customers'

HB 463 was based on recommendations by a task force of state justice system leaders, which met for a year with the nonprofit Pew Center on the States to address Kentucky's exploding inmate population, especially the role played by drug crimes.

The 150-page bill revised parts of the criminal code. Among other things, it limited longer prison terms for drug trafficking to people caught with substantial quantities of drugs, not just a personal stash. It cut penalties for first- and second-offense drug possession to probation or "deferred prosecution," which means no penalty if defendants complete addiction treatment and commit no new crimes. People charged with drug possession would be released before trial unless a court deemed them too dangerous or a flight risk.

The persistent-felony-offender statute, which enhances prison sentences for repeat criminals, would not be triggered by drug possession. The state would develop "graduated sanctions" to use when possible to punish criminals who violate the terms of their probation or parole, rather than toss them back in prison for minor violations.

Also, state inmates with six months left on their sentences would be released to finish their time in the community under mandatory parole supervision and counseling. When inmates previously served out their entire sentence behind bars, they were cut loose with no follow-up contact.

As of last month, more than 7,100 inmates have been released through "mandatory re-entry supervision," saving the state an estimated $25.1 million in incarceration costs. About 80 percent have not reoffended, state officials said. Scores of additional probation and parole officers are being hired to track this crowd, using some of the prison savings.

"We have a fair number of return customers," said Justice and Public Safety Secretary J. Michael Brown, a task force member who helped with HB 463. "A lot of the time, they don't adapt very well when they're released. They can't find a job, they go back to the same home, they go back to the same neighborhood where they got in trouble the last time. We're working very hard at addressing that now."

Short of the goal

Supporters of the penal reform law say they want it to have a greater impact on inmate population and the state budget, as intended. But several obstacles stand in their way.

Around the time the law passed, the state Parole Board — nine full-time members who are appointed by the governor — turned more conservative. Based on trends, budget forecasters in 2011 predicted the board would grant parole 51 percent of the time over the next year, freeing up expensive beds. Instead, the parole rate dropped to 46 percent, leaving 510 inmates behind bars longer than expected at an additional cost of $6 million.

The parole rate has bobbed up and down since then. But the board acts independently in deciding the likelihood of recidivism in about 17,000 cases a year, so state officials say they have limited control over the size of the prison population.

"They make the best guesses humans can," Brown said. "But if you want to project numbers onto that, budgets onto that or fairness onto that, then I think you need another system."

Another problem is that judges and prosecutors in parts of Kentucky are not following portions of the law, such as deferred prosecutions in drug possession cases, said Tilley, the House Judiciary Committee chairman. It's not clear if these local court officials — he declined to identify them — don't understand the law or if they ideologically oppose it and don't want to be seen as soft on crime, Tilley said.

"We frankly need more aggressive implementation, because we know that where it is being implemented, we're seeing savings," Tilley said.

Lawson, the UK law professor, said HB 463 is falling short because it didn't reach far enough. For the most part, he said, the law revised only sections of the criminal code dealing with drug offenses, rather than delivering a long-overdue review of all crimes and penalties.

Even with drug offenses, the law merely tweaked some items that should have been wiped off the statute books, Lawson said. For example, he said, prosecutors like to bring enhanced felony penalties for the offense of "drug trafficking within 1,000 yards of a school," conjuring the image of a crack dealer lurking on a kindergarten playground. In truth, that offense often is used to lengthen prison sentences for drug addicts caught with a stash in their car several blocks from a school campus, he said.

Rather than eliminate this misbegotten offense, HB 463 reduced the area it covered from 1,000 yards to 1,000 feet, Lawson said.

"All along I tried to get them to do more than they were doing, because I just didn't believe that what they were doing was going to produce the results they wanted," Lawson said.

John Cheves: (859) 231-3266. Twitter: @BGPolitics. Blog: bluegrasspolitics.bloginky.com

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