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Group tackling penal code reform again

FRANKFORT — Although two "expert" examinations of the state's criminal laws were largely ignored in Frankfort earlier this decade, lawmakers say their own committee on penal code reform might be issuing a third set of recommendations soon.

The pronouncement comes as the Supreme Court is expected to issue a ruling in coming months that could determine whether one of the few changes lawmakers have made to reduce the state's bulging, costly prison population can continue.

The controversial measure, which allows the Department of Corrections to recalculate credit for parole time, has allowed more than 3,000 prisoners to be released earlier than expected.

The issue exemplifies why repeated pushes to reform the state's criminal laws have largely gone unfulfilled by lawmakers who often tout their toughness on crime.

Under Republican Gov. Ernie Fletcher, a Blue Ribbon Task Force released a report in 2005 making a series of recommendations to tweak the criminal code to decrease the state's prison population. That report was shelved.

In 2008, Gov. Steve Beshear asked the state's Criminal Justice Council — made up of prosecutors and other law enforcement — to study the issue again. Its report was released in late 2008.

The legislature approved a few of the council's recommendations in 2009, but many of the more controversial provisions — such as relaxing the state's statutes on persistent felony offender and establishing a new classification of offenders — never passed.

Now, lawmakers say they hope to have another batch of proposals ready for the 2010 General Assembly that would reduce the state prison population and make county jails more efficient.

"There will be a substantial look at this, because everybody understands now that most of our prison population is there due to some sort of drug problem," said Sen. Robert Stivers, R-Manchester, chair of the Senate Judiciary Committee and a member of the legislative penal code subcommittee.

"I think you're going to eat this elephant bite by bite," Stivers said. "I don't think we can swallow it whole."

In 2008, a Pew Center study showed that Kentucky was imprisoning people at a higher rate than any other state in the country. Moreover, the state's ballooning prison and county jail populations are putting a strain on the public purse.

Last year, the state's prison budget was $457 million out of a $9.4 billion spending plan. That's way up from just $7 million in 1970.

For decades, legislators' "tough on crime" approach has produced changes to the state's penal code that put more and more Kentuckians in the state's jails and prisons for longer periods of time.

The parole credit program shows just how much controversy surrounds changing sentencing laws and the penal code.

The legislature included in its 2008 budget bill a temporary provision that would allow the Department of Corrections to give prisoners additional credit for time they served on parole. The move was unpopular with prosecutors who argued that victims and juries believed that a prisoner was going to serve the full sentence.

A commonwealth attorney and Attorney General Jack Conway filed lawsuits asking the court to stop the program. The Supreme Court heard arguments in the case on Wednesday.

Meanwhile, the legislature made the provision permanent in 2009.

Kentucky's prison population has declined by about 1,200 inmates over the past 18 months. In February 2008, the state had 22,777 inmates. On Aug. 26, the state had 21,570 inmates.

Jennifer Brislin, a spokeswoman for the Justice and Public Safety Cabinet, said much of that decrease can be attributed to the parole credit program. Since May 2008, more than 3,000 people have been released from prison earlier than expected.

An additional 3,874 were released from parole supervision. Of those who were released early, six committed new crimes after their release.

Brislin said that the Criminal Justice Council's 2008 report was not merely an academic exercise. The legislature did tackle some of its recommendations.

"Some of these issues are bigger than just one legislative session," Brislin said. "They take a lot of review and a lot of buy in."

Jay Blanton, a spokesman for Beshear, said the Democratic governor has not given up pushing for more changes.

"We knew going in that substantive reforms would not be the product of one legislative session," Blanton said. "The issues are too complex to expect that. As a result, the cabinet will continue working through the penal code subcommittee in the hopes of building consensus and common-sense recommendations for reform."

Some recommendations made by the council and of the 2003 task force are now being considered by a legislative subcommittee tasked with tackling the thorny topic of sentencing reforms, said Sen. Gerald Neal, D-Louisville, chair of the penal reform subcommittee that began meeting in 2008.

"We recognize that there have been many studies that have been done both nationally and in the state," Neal said. "We're doing a thorough review of all of those materials. We're also looking at reforms that are being done in other states."

One topic that nearly every committee has looked at is the persistent felony offender statutes, which increase jail time for people who were convicted of multiple felonies. Beyond that, there are "enhancers" that also can increase jail time.

Neal said changes to the sentencing and penal code have taken so long because no one wants to compromise public safety.

However, the state's dire fiscal condition now will probably force the topic to the forefront, he said.

"Things are ripe for change because the fiscal circumstances are such a driver," Neal said.