AG Coleman asks appeals court to prevent some KY prisoners from being paroled
Kentucky Attorney General Russell Coleman is asking the state’s Court of Appeals to intervene to prevent more than 240 people from being released on parole.
A Franklin Circuit judge recently found that the Kentucky Department of Corrections was incorrectly calculating some prisoners’ parole eligibility under a new law.
But Coleman is appealing the decision and says if no action is taken, hundreds of people convicted of violence offenses may soon go free.
At issue is the Safer Kentucky Act, passed by the legislature in 2024 as House Bill 5.
One of the provisions of the sweeping crime law expanded the definition of what a “violent offender” is to include more offenses, including first- and second-degree robbery, first-degree strangulation, first-degree arson, carjacking and some other crimes.
Previously, people convicted of those charges could become eligible for parole after serving 20% of their sentence. Now, they must serve 85% of their sentence before they can be parole eligible.
A class action lawsuit was filed last year by lead plaintiff Toby Berry, an inmate whose attorneys argued that the Kentucky Department of Corrections was wrongfully applying the new law to people whose offenses were committed before the law took effect in July 2024.
Berry had pleaded guilty to assault, strangulation and unlawful imprisonment charges as part of a plea agreement on May 24, 2024, less than two months before the new law took effect. He was sentenced in accordance with the plea deal to 10 years on Aug. 6, 2024, court documents indicate.
At the time he agreed to the plea deal, Berry would have been eligible for parole after two years, but the Corrections Department instead determined he wouldn’t be eligible until 2031 under the new law requiring violent offenders to serve 85% of their sentence, according to the court filings.
Franklin Circuit Judge Phillip Shepherd ruled in the inmates’ favor and on Feb. 17 issued a permanent injunction barring the corrections department from applying the new parole eligibility requirements to people who committed their crimes before the law took effect.
He ordered the corrections department to “change all sentences calculated at 85% due solely to DOC’s erroneous interpretation of HB 5, to 20% parole eligibility, and to make all affected offenders immediately eligible for placement in the Substance Abuse Program or other programs, if their recalculated parole date makes them eligible.”
The attorney general’s office says about 320 people were affected by the ruling, and “because the circuit court declined to stay its order while the Commonwealth and DOC appealed, 242 of those inmates are suddenly eligible for parole,” according to a motion the AG filed with the Kentucky Court of Appeals Friday.
The attorney general had appealed the ruling and asked the circuit court to stay its decision during the appeal, so that those people would not be released, but Shepherd denied that request March 2.
Now, Coleman is asking the Court of Appeals to grant a stay prohibiting those inmates from being released under the old 20% eligibility requirement while the case is appealed.
The AG argues in its filing with the Court of Appeals that not granting a stay “may result in the premature release of hundreds of violent offenders, putting countless Kentuckians at risk.”
“The General Assembly passed the Safer Kentucky Act to protect families and support law enforcement,” Coleman said in a news release. “Unless the Court of Appeals steps in, more violent criminals could soon be back in your neighborhood.”
“The Safer Kentucky Act applies to violent offenders who committed their crimes before the law’s effective date, as long as they hadn’t been sentenced yet,” the AG’s news release states.
But in his ruling, Shepherd said the Kentucky Department of Corrections’ interpretation of the new law violated “prohibitions on retroactive penal statutes.”
“The U.S. Supreme Court is clear that principles of fairness and fundamental justice underlay the prohibition on ex post facto laws, as is the notion of ‘lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated,’” Shepherd wrote. “That is clearly what has occurred here.
“When Berry and the Plaintiff class committed their offenses, they were eligible for parole when they served 20% of their sentences. The DOC incorrectly interpreted the amendment when it retroactively applied the amended version of the law to the plaintiffs whose offenses occurred before the effective date of the act. Such an incorrect interpretation of the statute is an ex post facto violation, where the application of the statute to the plaintiff class violated their fundamental right to rely on the punishment promised by the legislature at the time of their offense.”
Shepherd said the corrections department had submitted “a list of 175 inmates who have also had their parole eligibility calculated at 85%, when the offense for which they pled guilty was 20% parole eligible at the time of commission.”
“This has collectively resulted in over additional 738 years for this cohort to serve before becoming parole eligible,” Shepherd’s order said.
Shepherd said “the Court’s ruling provides that HB 5 will be fully enforced, but that it may not be enforced retroactively upon Defendants whose crimes were committed prior to the enactment of HB 5.”
