‘Someone thought this was a good idea.’ Why so many state prisoners are in local jails.

Kentucky has a jail overcrowding crisis today because its politicians a generation ago wanted to get tough on crime without paying the cost.

Kentucky has a jail overcrowding crisis today because its politicians a generation ago wanted to get tough on crime without paying the cost.

In the 1980s, America’s war on drugs caught fire. Panicked by crack cocaine and urban gang violence, legislators hardened the penalties for many crimes, not just those related to drugs. Repeat offenders were ordered to serve “mandatory minimums.” States couldn’t build prisons fast enough to hold all of the people they hoped to incarcerate, sometimes for the rest of their lives.

Facing a rush of incoming prisoners and a 1981 federal court order capping prison populations, to keep living conditions safe, the Kentucky Department of Corrections created a policy called “controlled intake.” That was a bland way of saying the DOC would not transfer newly sentenced felons from county jails to state prisons to begin serving their time unless it had an open bed for them.

With nowhere to go, state prisoners quickly began backing up at the local jails, alongside people who were awaiting trial and local inmates serving short sentences of a year or less for misdemeanors.

By 1983, Kentucky had 3,588 state inmates serving their time in prisons and a spillover of 564 in county jails. Just five years later, with stricter sentencing laws on the books, those numbers had doubled to 7,119 state inmates in prisons and 1,146 in jails.

Both state inmates and county jailers got fed up with the growing backlog. State inmates stuck in jails said they wanted instead to be in a prison, with the additional space and rehabilitation programs that prisons provide. Jailers said they couldn’t afford to house state inmates on top of their own local inmate populations, especially since they weren’t always being compensated by the state.

The two groups sued the Department of Corrections, and in 1988, the Kentucky Supreme Court ruled ruled that state prisons are the only proper place to hold state inmates. The court even upheld contempt sanctions against the DOC for refusing to pick up state inmates from jails despite lower courts ordering it to do so.

“These cases present a bizarre picture of convicted felons and parole violators fighting for the right to get into state prison, joining with county officials trying to put them there. We have decided they have that right,” the court wrote. “The basic equation is the state cannot pass penal statutes and create penalties that generate more prisoners than it is willing and prepared to provide for.”

However, the court then gifted the Department of Corrections with an escape clause.

“Where there is space and available (local) facilities, and those facilities are adequate to meet minimum standards for care of state prisoners, and at a fee mutually agreed upon as adequate to cover the expense, the state may contract to provide for the carrying out of its constitutional responsibility,” the court continued.

In other words, state prisons must house state inmates — unless the DOC can sign contracts with jails that are willing to hold them in exchange for money, and if those jails have enough room.

That was all the DOC needed to hear.

It inked deals with scores of jails around the state, agreeing to pay a daily rate, known as a per diem, for every state inmate serving time inside their walls. Typically, the state paid jails only a fraction of what it would cost to house an inmate in a prison.

This was a win for the state government, which now had a legally sanctioned relief valve that allowed “tough on crime” legislators to keep locking up Kentuckians without having to build expensive new cells for all of them. It was a win, of sorts, for counties that would dangerously overload their jails in coming years while collecting a new revenue stream in the form of state prisoners.

For state inmates who wanted to serve their sentences in prison rather than on the floor of a dark, cramped jail dorm with little to no access to rehabilitation programs? They were simply out of luck.

“That Supreme Court decision changed the whole operation from what it had been historically,” said Robert Lawson, a retired University of Kentucky criminal law professor who spent part of his career studying conditions in Kentucky’s prisons and jails.

The General Assembly went further than the Supreme Court in 1992 by passing a law actually requiring people convicted of Class D felonies, punishable by one to five years in prison, to serve that time in a county jail instead of a state prison. Legislators expanded that law in 2000 to include Class C felonies. People convicted of serious crimes would bunk with those awaiting trial for relatively minor offenses, like shoplifting.

What was supposed to be a temporary fix in the 1980s ended up permanently baked into the system. This month, of the 25,177 people sitting in Kentucky jails, 11,428 of them are state inmates serving their state time.

That’s more than the 11,409 state inmates housed this month in Kentucky’s 12 state prisons, all of which are full. One privately owned prison in Lee County that is leased to the state held 848 inmates.

Almost no other state in the nation houses so many of its inmates in county lockups. Most put them in prisons.

But Kentucky would need to build a dozen more prisons to hold its overflow. Given the many millions of dollars needed to build and operate a prison, that is unlikely to happen.

There isn’t enough room in most jails to hold state inmates. In April, on average, Kentucky’s jails were packed at 121 percent of their intended capacity. Three dozen jails were filled beyond the 138 percent limit recommended by the U.S. Supreme Court in a 2011 inmate overcrowding case. Some jails hold more than twice as many people as intended.

Occasionally, governors and legislators in Frankfort have talked about trying to relieve jail overcrowding. “This will be at the top in terms of our priorities,” then-House Democratic Majority Whip Rob Wilkey of Scottsville pledged during the 2008 legislative session. But substantive solutions have eluded them. Most years, they don’t seriously address it.

Around the same time that Wilkey was making his pledge, then-state Auditor Crit Luallen issued a report recommending that the Department of Corrections take over all the county jails and manage them as one unified system along with the prisons to improve their performance and save taxpayer money through streamlined operations and cost efficiencies.

That suggestion went nowhere given the political clout enjoyed in Frankfort by the turf-conscious elected jailers. But the jailers did agree with some of the concerns Luallen raised.

For example, she found that 24 jails were “winners,” collecting several million dollars from the state annually in excess of the actual cost of holding state prisoners, while 45 counties were “losers,” subsidizing the state $15 million a year by absorbing uncompensated state inmate expenses. In short, she said, the state’s per diem payment arrangement for jails doesn’t make sense financially.

More important, Luallen warned, most county jails don’t have the space to safely house state prisoners.

“The state’s practice of leaving state prisoners in the county jails or placing state prisoners in county jails either exacerbates or causes overcrowding in 53 of the state’s 73 full service and regional jails,” Luallen wrote. “Continued overcrowding may lead to federal lawsuits and liability issues for counties with populations in excess of capacity.”

The auditor’s warning fell on deaf ears. A decade later, the impasse has led to mounting frustration in some county seats.

“That’s one of the biggest issues we’re facing, just where to physically put all of these inmates,” said Pulaski County Jailer Anthony McCollum on a recent day when his 213-bed detention center in Somerset held 423 people. Nearly 150 were state prisoners. Men and women slept on the floor throughout the facility.

Pulaski County Jailer Anthony McCollum John Cheves

“It gets complicated, because I’ve heard some jailers say that state inmates basically pay to keep their doors open,” McCollum said. “We all agree the jails are too crowded and that’s no good, but not everyone wants to give up their state inmates, either.”

The arrangement is still a bargain for the state, which pays only $31.34 daily to jails for each inmate they hold. (Jailers are quick to point out that this rate hasn’t changed in more than a decade.) The cost to house state inmates in prisons can be two or three times higher because prisons are larger, better staffed and offer rehabilitation programming, such as drug and alcohol addiction treatment, anger management, college classes and job training.

Although jails are relatively cheap, this was the wrong direction to go, acknowledged Kentucky Justice and Public Safety Secretary John Tilley, who oversees the Department of Corrections.

“Certainly in retrospect, if it had been treated as a temporary sort of a Band-Aid to alleviate a few of our capacity issues, and then we returned to it later, I think that would have been better,” Tilley said. “But this was a fix permanently (written) into the statute. Someone thought this was a good idea. Or maybe politics got in the way.”

Unfortunately, said Lawson, the retired law professor, state officials have ignored the Kentucky Supreme Court’s requirement that jails must have “available space” before they can house state inmates.

Since the 1980s, Lawson said, the state of Kentucky unhelpfully watered down the minimum living space requirements for jails from 60 square feet per inmate to 50 square feet to 40 square feet, which is smaller than a king-sized mattress.

Next, he said, jails as a practical matter replaced “per inmate” with “per bed” and allowed thin sleeping mats to be placed on the concrete floors and not be counted as beds, to allow jailers to squeeze in as much human flesh as possible.

(In a prepared statement, the Department of Corrections said the written standards still require 40 square feet of living space per inmate, not per bed. However, it added, “Physical removal of state inmates from overcrowded facilities isn’t always possible due to population pressures.”)

Jails and prisons are in no way equal, Lawson added. Studies, including one he conducted, show that felons serving time in Kentucky prisons are more likely to be paroled and also to have a lower recidivism rate than comparable felons held in jails.

Prisons are meant to rehabilitate people while Kentucky’s jails too often “look like a storage bin or a human warehouse,” Lawson said.

“I’ve been concerned for a long time as to why more challenges haven’t been made to the conditions in the local jails under the cruel and unusual punishment clause of the Constitution,” Lawson added.

“I went to nine different jails, and the conditions that I observed in those jails, it looked to me they automatically would qualify as cruel and unusual punishment.”


Why did we report this story?

Like many people who call the Herald-Leader newsroom, this woman was angry. On this January day, her son was an inmate in the Madison County Detention Center and she feared for his life. The jail — built to hold 184 people — that week was dangerously overcrowded with 418 inmates, some of them state prisoners serving their time in the jail because there was no space for them in the state’s prisons. The cramped quarters led to violence, she said.

That sounded like a bad situation. And it proved to be true.

We’ve written about overcrowding in Kentucky’s county jails before, including an in-depth story in 2008 just as Steve Beshear began his two terms as governor.

“I’m not sure what to do,” Beshear admitted to us then. “Obviously, a great number of offenders who are in our jails and in our prisons right now are drug-related. We all know for a fact that if there is an answer to the drug problem, it’s treatment and rehabilitation. But that costs money. And right now, we don’t have any.”

Eleven years later, Kentucky’s county jails are in even worse shape. We hope this series of stories rekindles a discussion — and perhaps ignites a lawsuit — that forces Kentucky’s politicians to finally face the realities of the broken judicial system they’ve created.

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