To the list of big ideas that appear to have flopped during the 2018 General Assembly, such as pension reform and tax reform, add criminal-justice reform.
House Bill 396 was a sweeping measure intended to save Kentucky taxpayers nearly $340 million over the next decade by curbing steady growth of the inmate population that this week topped 24,500. Gov. Matt Bevin’s administration, which promoted the bill, warns that Kentucky could fill its last inmate bed by May 2019, if not sooner. After that, officials say, a federal judge might order early prisoner releases to alleviate jail overcrowding.
But the House Judiciary Committee never called the bill for a vote. With only a few days left in this legislative session, it’s considered dead.
“The opposition was just too fierce,” said one of the bill’s sponsors, state Rep. Jason Nemes, R-Louisville. “So we’re going to go back in the interim and work on it some more and see if we can’t reach some agreements with people on at least some of these points.”
Among those opponents were prosecutors and judges who said the 126-page bill tried to make too many dramatic changes to the courts all at once. Instead, sponsors should have tried moving three or four separate bills over several sessions, they said.
“There were some ideas in there that I didn’t necessarily disagree with. But it’s like someone handing you a TV dinner with those little tinfoil pockets, and you’re OK with all of them except you don’t want the peas, and they tell you that if you don’t eat the peas, they’re going to throw away your whole damn dinner,” said Shane Young, the commonwealth’s attorney in Hardin County.
The bill would have reduced assorted nonviolent crimes from felonies to misdemeanors, including first- and second-offense drug possession, so thousands of offenders could spend less time behind bars and avoid the lifetime stigma of a felony conviction. Similarly, it would have raised the threshold for felony theft from $500 to $2,000. Current felony theft law would snare a teenager who steals a single iPhone, the bill’s supporters said.
For many crimes not involving violence or sex, the bill would have required pre-trial release from jail without bond rather than continuing to give judges the discretion to decide, and it would have made parole automatic on the first eligibility date rather than continuing to give the parole board the discretion to decide.
And for offenders who get in trouble while being supervised in the community on probation or parole, the bill would have established a series of “graduated sanctions” — lesser penalties that gradually increase in severity — if that was considered more appropriate than sending offenders to prison to serve out the rest of their sentences.
Overall, the bill contained 18 of the 22 recommendations from a report issued in December by an advisory committee that Bevin assembled to suggest changes to the criminal-justice system. The report warned that Kentucky’s Department of Corrections has packed its 12 prisons and scores of local jails around the state that are paid $31.34 daily to hold lower-level state felons. A privately owned prison in Lee County is reopening this month under a new contract with the state.
Kentucky’s prison admissions have grown by 32 percent over the last five years, fueled by drug offenses and other low-level crimes, according to the report. In Fiscal Year 2017, taxpayers spent $570.5 million on the Corrections Department. That sum is expected to rise to nearly $600 million within the next two-year state budget while most other parts of state government are cut.
“House Bill 396 was a very bold initiative intended to drive the conversation. We knew going in that not everything in the bill was going to be able to be passed, but this is something we at least need to be talking about,” said the primary sponsor, state Rep. Kimberly Poore Moser, R-Taylor Mill.
On the other hand, Moser added, “If we don’t do something, I think we’re going to see inmates being ordered released. I don’t know how we can continue to house people doubled up in crowded jails and have them sleeping on the floor in these plastic ‘boats.’ It’s pretty inhumane.”
Brad Boyd, president of the Kentucky Jailers Association, acknowledges that many of the state’s jails are filled beyond their official capacity — including his own 713-bed jail in Christian County, which has held more than 800 inmates for more than a year. But Boyd disputed in an interview that they are dangerously overcrowded. Jailers are converting other spaces, such as gyms and “multi-purpose rooms,” into temporary inmate housing, he said.
Jailers lobbied against the House bill because much of the huge savings the Kentucky Corrections Department would have enjoyed would come from turning felony inmates, who are the state’s financial responsibility, into misdemeanor inmates, who are not. That means a county jail holding 50 people serving time for drug possession no longer would have been compensated by the state, although drug possession is a state crime.
County governments, already struggling to balance their own budgets because of rising pension obligations, kicked back against that idea.
The jailers offered a compromise, Boyd said: Lawmakers could create a new category of crime called a “gross misdemeanor” that would be less than a Class D felony, to avoid the stigma and loss of civil rights that follows a felony conviction, but that still comes with state funding for inmates held at local jails.
Lawmakers did not sound interested in this solution, Boyd added.
Young, the Hardin County prosecutor, said parts of the bill made sense to him, such as raising the felony theft threshold above $500, although he said he would be inclined to start by taking it to $1,000, not $2,000. As for drug possession cases, he said, if there are no other criminal offenses involved, those cases already tend to be resolved through the diversion process in his county so that defendants can avoid a felony conviction.
However, Young said he strongly opposed the bill’s mandated leniency on pre-trial release and revocation for probation and parole violations. Locally-elected judges and prosecutors should get to exercise their own discretion in their communities, he said. And some of the conditions of pre-trial release that would have been waived, such as drug testing, are useful in identifying addicts and steering them toward treatment, he said.
“The idea that as long as you’re not a ghost, you’re gonna be released on an unsecured bond? That’s just crazy,” Young said.
“Our town is somewhat small,” he said. “We get to know most of the people who live here. I can tell you with a pretty high likelihood of success who has the potential for re-offending just from knowing them and having dealt with them over the years.”
Another prosecutor, Commonwealth’s Attorney Courtney Baxter of Oldham County, said the bill left a lot of “blank spots.”
It assumed that drug addicts could be referred by judges to substance-abuse treatment, although much of rural Kentucky has scarce treatment options available, Baxter said. And it would have created thousands of new misdemeanor offenders who — unlike felony offenders — are not supervised in the community by probation and parole officers, she said.
At the one judiciary committee hearing held to discuss the bill, on Feb. 28, a lawmaker said the sponsors were well-intended, but he considered their measure to be soft on crime.
“I don’t think anybody believes that addicts shouldn’t be led to rehabilitation,” said state Rep. Robert Benvenuti, R-Lexington.
“What I have a problem with is this notion that their victims don’t count,” Benvenuti told his colleagues. “Because their victims do count. And though I appreciate the names of all the folks who support this … most of them go home behind a gate and turn on outdoor lights and an alarm system and are protected. And a lot of folks in Kentucky do not, and they are the victims of these so-called non-violent offenses.”