KY should lock up fewer people, prisons chief says. It’s getting bigger jails instead.

Some of Kentucky’s county jailers plan to make money by building bigger jails to hold even more state inmates inside their walls.

Madison County’s jail has been hazardously overloaded with inmates for years. More than 400 people sometimes are wedged into a confined space built to hold 184. Tempers flare as men must step over each other just to use the toilet.

Like most Kentucky jails, the Madison County Detention Center is packed even tighter by state inmates serving felony time inside its walls. Kentucky’s dozen prisons are full, so half of the state’s more than 24,000 prisoners are housed in county lockups alongside local inmates who are awaiting trial or serving short sentences for misdemeanors.

Since the state of Kentucky is neither building more prisons nor passing criminal justice reform legislation that would reduce its staggering incarceration rate — one of the nation’s highest — jailers say they expect the problem to just get worse.

“It’s such a burden on the counties,” Madison County Jailer Steve Tussey said in a recent interview.

“If I didn’t have to hold 50 or 60 state inmates, I’d at least be at a somewhat manageable number,” Tussey said. “Those last 50 inmates, the ones taking us from 350 to 400, that makes a significant difference in this jail. It’s the difference between actually having a place to put people and using up every last square foot of space and then some.”

Tussey’s ambitious solution?

Go bigger.

Madison County Jailer Steve Tussey would like to build a larger detention center. Tussey has the plans, he now needs the funding. Tim Webb

In a strategy increasingly popular among his peers, Tussey wants to build a much larger jail for his county, one that could possibly net a healthy profit by housing prisoners for the state and federal governments in exchange for a daily payment known as a per diem.

At 800 beds, the new Madison County jail would be comparable in size to a state prison. One proposal calls for it to sit on a 20-acre campus with plenty of room to offer the sort of rehabilitation programs — addiction treatment, college classes, job training and more — that prisons provide but most landlocked jails sitting next to county courthouses cannot.

The new jail’s budget would be twice its current $3.9 million a year, which is already more than one-fourth of Madison County’s general fund. But much of the population would be money-makers, Tussey said.

“The new facility would have revenue opportunities we don’t have right now,” Tussey said. He was preparing to leave in a few minutes for Lexington to talk with the U.S. Marshals Service about the costlier building specifications required to house federal prisoners.

“If I can house 100 federal inmates and 100 state inmates, then the revenue possibilities are substantial,” he said. “It could mean $2 million to $3 million a year.”

Tussey’s project still is in the early planning stages. He will have to convince local residents to make it a reality. That could be tough. Madison County last year rejected an insurance premium tax intended in part to pay for an expansion of the existing jail in downtown Richmond.

But bigger jails are a popular idea when counties can find the money.

The Madison County Detention Center on Irvine Street in Richmond. Tim Webb

Grant, Boyd and Breckinridge are among the counties to expand their jails since 2000 to accommodate more state inmates. (Perhaps ironically, the state Department of Corrections briefly removed its inmates from Grant and Boyd counties after a pattern of sometimes fatal abuse and neglect in those jails.)

Knox, Harlan, Laurel and Oldham counties ambitiously have constructed new jails with 1,987 inmate beds between them.

“If we only keep a hundred state inmates,” Knox County Judge-Executive J.M. Hall told the crowd at the 2017 ground-breaking for that county’s new detention center, “it will make our bond payment on the jail.”

“Someone asked, ‘What if we don’t get state inmates?’ We will. There’s plenty of them!” Hall said. Pointing at the local circuit judge, Hall added, to audience laughter, “Judge Lay here, he’ll fill it for us, won’t you?”

Jailers in Lincoln and Pulaski counties likewise are talking about building newer, larger facilities. They all see the same profit potential.

“Everyone from a local level to the state and ultimately on to the federal level all need beds,” Oldham County Jailer Mike Simpson told local reporters after opening a larger $22 million detention center in 2018. The new Oldham County jail has 330 beds, nearly three times as many as before. It filled almost immediately.

While overcrowding is a misery for people who live for months or even years inside local lockups, incarceration can be profitable for officials able to take advantage of rising demand for cell space, experts say.

“A lot of what I call the prison boosters, often what you’ll hear from them is that it’s a good economic development strategy because it’s recession-proof. If you build the beds, you can fill them. We’re always willing to lock up more people,” said Judah Schept, associate professor in the School of Justice Studies at Eastern Kentucky University.

Earlier this year, Schept co-wrote a report on Kentucky’s overcrowded jails for the nonprofit Vera Institute of Justice in New York.

He found that, especially in poor, rural counties where jobs are scarce and the property tax base is weak, officials will stuff their jails with state inmates to collect the basic $31.34 per diem that each body brings from the Kentucky Department of Corrections. If they can get them, federal prisoners held for the Marshals Service and Immigration and Customs Enforcement fetch even higher prices.

When their jails can’t possibly hold one more prisoner, county officials lobby for bigger jails, he said.

“These guys have lost millions of dollars a year in coal severance taxes that until a few years ago were available to them for the most basic public infrastructure,” Schept said. “They aren’t getting any new jobs. So where do they turn now? Well, if they can build a larger jail, they can maybe collect some more of that per diem from the state and even the federal government for holding their inmates.”

“It’s understandable that they would turn to this as a short-term fix, even if many of us find locking more people up during a time of declining crime rates to be a morally objectionably strategy for economic development,” Schept said.

Building bigger jails comes with risks, the Vera Institute warns.

For one thing, once they have more jail beds to fill, judges have been known to set higher bail to make it harder for defendants to secure their release before trial, said Jasmine Heiss, who studies mass incarceration for the Vera Institute.

And if incarceration rates drop in the future, reducing the availability of federal and state prisoners, county taxpayers can find themselves on the hook for expensive jail construction projects that stand half-empty, Heiss said. Millions of dollars owed for bigger jails could have been spent on better local services for education, health and housing, which would be smarter investments in the long run, she said.

The inmate shuffle

Revenue source or not, sometimes the inmate crush gets to be too much. Just as Kentucky prisons dump their excess inmates onto local jails, jailers with the worst overcrowding try to pass some of their overflow onto jails in different counties.

“We’re constantly sending out emails asking other jails, ‘Do you need state inmates?’ After a certain number, if we get maxed out, we try to get them off our numbers and see if another county can take them from us,” said Lincoln County Jailer Rob Wilson on a summer weekday when his 72-bed facility held 160 prisoners.

“Meanwhile, of course, we’re getting the same email from other counties all asking, ‘Hey, guys, can you take some of our inmates?’” Wilson said. “So everybody is obviously scrambling.”

The Lincoln County Jail in Stanford, Ky., photographed Thursday, June 13, 2019. Ryan C. Hermens

Madison County collects the $31.34 per diem for taking state inmates, plus smaller additional fees that come with it, like bed and medical allotments and a jailer training allowance. But the Madison jail often is so mobbed that Tussey must send inmates to other county jails because he doesn’t have enough room. He’s been trying to cap his population at 380 since he took office last winter.

That requires paying those other counties a comparable per diem for every inmate they take off Madison’s hands.

“Right now, we’re still making revenue,” Tussey said. “When those numbers equalize and we have as much money or more going out as we have coming in, then it will not be worth it anymore to take state prisoners.”

Inmate transfers between jails jumped 53 percent between 2011 and 2015, as jails thronged with prisoners tried to find counties with at least a few available slots, according to a 2016 report from the Kentucky Legislative Research Commission.

That makes it hard for the affected inmates to complete whatever limited rehabilitation programs might be available in the jail where they started, the report warned. They get a few weeks into a G.E.D. class and then have to pack up and leave.

The inmate shuffle creates another complication: Outsiders don’t always know where inmates are. Prisoners assigned to the Madison County Detention Center can end up in different jails 30 to 75 miles away, flummoxing visitors who show up looking for them, like their lawyers.

“Just to keep up with where our clients are at any given time, to get them back to the courthouse for their court dates, to arrange for interviews with them, that becomes a full-time job. It’s a huge drain on our resources,” said Valetta Browne, directing attorney for the Richmond office of the Kentucky Department of Public Advocacy.

The Madison County Jail in Richmond, Ky., photographed Tuesday, June 25, 2019. Ryan C. Hermens

Browne’s office is conveniently steps away from the Madison County jail and courthouse. But it’s more than a two-hour drive from Grant County, where some of her office’s clients get shipped because of overcrowding.

“It’s not a good solution at all, but I guess it’s the only solution they have over there,” Browne said. “Our clients tell us it’s awful. They say, ‘Do you know how many people are in here with me? It’s an eight-person cell and they’ve got 20 people stuck in here!’”

No appetite for reform

Other states dealt with inmate overload not by going bigger but by reducing the flow of bodies into cells.

Nationally, incarceration rates are declining, according to two new studies released in April. The Vera Institute’s data, for example, showed an 8.5 percent drop in prison inmates from 2008 to 2018 for the 50 states and the federal government, which runs its own prison system.

This reflects a reduction in rates of serious crime across much of the country and an effort by other states to enact criminal justice reform measures that make it less likely someone who commits a non-violent, non-sexual crime will get a stiff prison sentence. Other states are sending drug addicts to treatment whenever possible rather than putting them behind bars for drug-related offenses.

Kentucky, however, saw an 11.2 percent increase in its state prisoner population during that same decade, according to the Vera Institute. With an incarceration rate of 540 state inmates per 100,000 residents, Kentucky ranks tenth in the nation for putting its people behind bars.

The Kentucky legislature mostly has rejected reform efforts, blocking an ambitious package of measures in 2018 that was supposed to shave an estimated $340 million off the state’s incarceration costs over the next 10 years.

In July, the legislature’s Interim Joint Judiciary Committee heard testimony from the Vera Institute’s Heiss about the dangers of jail overcrowding and the need to steer more offenders to alternative treatment. But several lawmakers on the committee impatiently pushed back, telling Heiss that their communities want to see criminals locked up.

“I’ve got an older lady in my district, and just the other day there was a person who vandalized some of her property,” state Rep. Kevin Bratcher, R-Louisville, said to Heiss.

”The guy was found, he has a history of this, and he’s right back on the street. She sees him and he’s taunting her now. So she’s calling me,” Bratcher said. “And I know you see the big picture and we’re supposed to see the big picture, too. But I also see the little old lady on the street asking, ‘How come this guy is right back out here?’”

The status quo frustrates those in Frankfort who say inmate overcrowding is a serious problem.

“The answer is not to build more prison space, the answer is to lower our prison population,” said Kentucky Justice and Public Safety Secretary John Tilley. When he previously served in the legislature, Tilley was chairman of the House Judiciary Committee.

“I’ve sounded every alarm I know how to sound,” Tilley said. “I’ve stood on my head. I’ve become a lightning rod, I’ve become the boogeyman for anything that I suggest as reform and that I consider to be a commonsense solution.”

Senate Judiciary Chairman Whitney Westerfield Legislative Research Commission

Kentucky’s Senate Judiciary Chairman, Whitney Westerfield, said he wants Kentucky to pass laws making it easier for more people to be released from jail before trial; raising the threshold for felony theft from $500 to $2,000; sending more drug offenders to treatment; and generally cutting the state’s incarceration rate.

“But I’m just not sure, based on what we’ve seen so far, that any of this has the legislative muscle to get passed,” said Westerfield, R-Hopkinsville.

“I think there’s still this prevailing thought in Frankfort on how we need to be tough on people we think did wrong even if it’s not the best approach,” Westerfield said. “It’s easier in a radio ad or a direct-mail piece during an election campaign to tell voters, ‘I’m tough on crime, I locked more people up’ than it is to rethink how we handle these offenses in a meaningful way.”


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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