KY jails are again overfilling after COVID restrictions lift. Will new laws make it worse?
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KY’s jam-packed jails
As the COVID-19 pandemic swept through Kentucky in early 2020, fears of spread in communal settings drove the state to release certain prison and jail inmates in an effort to reduce transmission risks behind bars.
Now, two years later with COVID restrictions lifted, Kentucky’s jails are filling up – and in some cases overflowing.
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KY jails are again overfilling after COVID restrictions lift. Will new laws make it worse?
High incarceration rate leaves most of Kentucky’s jails overpopulated. See the data.
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Central Kentucky jail deals with overpopulation
As the COVID-19 pandemic swept through Kentucky in early 2020, fears of spread in communal settings drove the state to release certain prison and jail inmates in an effort to reduce transmission risks behind bars.
Now, two years later with COVID restrictions lifted, Kentucky’s jails are filling up – and in some cases overflowing. At the end of June, 21,564 people were in Kentucky’s jails along with 9,235 people behind bars in state prisons. The Madison County jail’s number of inmates was nearly double its number of beds. The Pulaski County jail also has more than twice as many inmates as it has beds, according to Department of Corrections data from early July.
If Kentucky were a country, it would rank seventh-highest in the world for its rate of incarceration, worse than all countries outside the United States, and all but six other states, according to the Kentucky Center for Economic Policy.
Kentucky has an incarceration rate of 930 per 100,000 people (including prisons, jails, immigration detention, and juvenile justice facilities), according to the Prison Policy Initiative.
As a state, Kentucky locks up a higher percentage of its people than any democracy on earth, according to the KCEP. And policy experts are sounding the alarm that the state’s already high incarceration rate could get worse following the passage of several bills in Kentucky’s most recent legislative session.
How pandemic fears dropped jail populations
Kentucky’s incarceration rate saw a mild reprieve during COVID-19 when restrictions were imposed by the Department of Corrections. Fears about the spread of COVID led to three rounds of sentence commutations and administrative release for certain charges – all of which lessened the population inside many county and state facilities.
Inmates who were released by Gov. Andy Beshear’s order included those who had a higher risk of contracting COVID-19, and those who were serving sentences for non-violent, non-sexual Class C or D felonies with fewer than five years left to serve.
Despite those releases, the Prison Policy Initiative still gave the state a failing grade on its response to the pandemic. The Department of Corrections was graded on its responses to several factors, including the limit of number of people in prisons, the ability to reduce infection and death rates behind bars, vaccination rates and addressing basic health.
Now that the state is seeing a decrease in those infected with COVID-19, detention facilities are beginning to see their numbers climb again.
Madison County Jailer Steve Tussey said his 184-bed facility, which is currently housing upwards of 300 inmates, saw a reduction in population at the onset of the pandemic.
“(COVID-19) basically put the judicial system on hold and the courts stopped processing,” Tussey said. “We released as many inmates as we could and it did overall help reduce the count of the jail. Also, the police agencies were not arresting as many people either. Honestly, for two years, COVID-19 helped the jail count stay significantly lower.”
However, with judges’ dockets resuming four days a week and a significant backlog to address, Tussey said the Madison County Detention Center’s numbers will “certainly go back up again.” He said the facility has “huge turnover” with 600 to 800 inmates booked in each month and a recidivism rate of about 70%.
As of July 7, Tussey was responsible for about 337 inmates in the 184-bed facility. This number does not include those participating in the home incarceration program, or being housed in other counties, which is on the Madison County’s dime.
In the Pulaski County Detention Center, a 213-bed facility, there are currently more than 300 inmates being housed.
According to Jailer Anthony McCollum, that’s actually a decrease from having almost 460 inmates housed there in previous years.
“We have a very busy court system and court docket with a jail built in 1989,” he said. “But since then, Pulaski County has grown and more law enforcement has been added. When this jail was built, they didn’t see it where it is today. With that growth, that has definitely added to the overcrowding.”
When COVID-19 restrictions were implemented, McCollum said his roster plummeted to 180 in-house inmates, which he called a “significant” decrease.
“The numbers are going back up. Whenever you go from 180 during COVID back up to 397, I would say they are definitely going back up,” he said.
How new laws could continue to overpopulate KY’s full jails
With a failing grade for public health during COVID-19, and high incarceration rates predating that, policy officials don’t expect any relief soon. There are concerns that new legislation will exacerbate the jail overcrowding issue.
In a report from the KCEP published on May 5, writers Carmen Mitchell and Pam Thomas said the 2022 General Assembly did little to address the issue, and likely made it worse with their decision to pass 12 bills that increase existing penalties or create new penalties for crimes. Two bills were also passed that Mitchell and Thomas believe will help reduce incarceration rates.
According to the May 5 report, since 2011, the General Assembly has passed 71 bills which increase or create more penalties, compared to only 12 bills to reduce penalties or incarceration times.
KCEP wrote in its report that House Bill 215 and Senate Bill 179, both passed in the 2022 legislative session, were “particularly concerning” because of the potential number of people the laws could put behind bars and keep there for longer periods of time. There were also concerns about increased costs.
House Bill 215, a bill relating to drug trafficking, increases existing penalties by requiring any individual convicted of aggravated trafficking or importing of carfentanil, fentanyl or fentanyl derivatives to serve at least 85% of their sentence before being eligible for release.
Before this change, those individuals were required to serve at least 50% of their sentence. The bill also prohibits pretrial diversion for anyone charged with one of these offenses.
Mitchell and Thomas wrote that the definition of “importing” in the bill can open a greater number of people up to increased penalties, even if they’re low-level users.
Analyst: People jailed over new KY law ‘are not drug kingpins’
Mitchell told the Herald-Leader that being convicted of this crime is coupled with a severe sentence, and any individual convicted would be serving five to 10 years. In addition, with the broad spectrum of wording about who can be convicted of this crime, she said it leaves the door open for a larger number of people who could see this charge tacked on.
“A lot of people in Kentucky are not aware of how the definitions are worded and how easy it is to sweep up so many people who are not drug kingpins like the law is designed to incarcerate,” she said. “There is no minimum in terms of quantity which would determine if someone would get this charge. You can share or sell it, and it is any amount.
“Fentanyl is very dangerous in small quantities, and when you think about traces of fentanyl or small amounts that have another drug with a trace of it, you can get hit with this importing charge as opposed to a possession charge which has a lower level sentence.”
“It is very dramatic for something someone is sharing with someone else,” she added. “It doesn’t get to that high level typically that the law is targeted to go after.”
KY lawmaker: ‘If they are trafficking ... we are taking them down’
Rep. Bill Wesley (R-KY), a co-sponsor of the legislation, said this bill is only aimed at traffickers, as the language applies when only 10 grams or more of Fentanyl is being trafficked.
“This bill is only for traffickers the way I understand it, it is for 10 grams or more. If they are going to get caught with that much, that is trafficking. This is not to be interpreted if you are a user. Not that I am supporting the user, but we have programs for that. This bill is only for trafficking and if it was up to me, I would go less than the 10 grams. Fentanyl is a killer, and it is nothing to play with.”
According to the bill, a person is guilty of aggravated trafficking in a controlled substance in the first-degree when he or she knowingly and unlawfully traffics in 100 grams or more of heroin; 28 grams or more of fentanyl; or 10 grams or more of carfentanil or fentanyl derivatives.
However, other language in the bill states “a person is guilty of importing heroin, carfentanil, fentanyl, or fentanyl derivatives when he or she knowingly and unlawfully transports any quantity of heroin, carfentanil, fentanyl, or fentanyl derivatives into the Commonwealth by any means with the intent to sell or distribute the heroin, carfentanil, fentanyl, or fentanyl derivatives.”
Wesley said he backed this bill because he wants to protect Kentuckians, especially first responders.
“Our officers are (overdosing) and our EMS guys, and we needed to do something about it,” Wesley said. “We are going to let everyone know, if they are trafficking in the state, we are taking them down and we will protect our first responders at all costs.”
He said the bill requires those convicted of this charge to serve 85% of the time sentenced.
“If they say you are going to do 10 years then you do 85% without parole,” Wesley said. “(Drug traffickers) better think twice before dope dealing in Kentucky. They will get their act together in prison, and jail, and they aren’t going to get let go just because we are overpopulated.”
The bill’s primary sponsor, Chris Fugate (R-KY), said he sponsored the bill as a method to protect law enforcement and first responders. He also said he would have supported making the quantity lower than 10 grams to receive the charge.
”This bill is aimed at more or less focusing on mid-to-upper level drug dealers who do it for the money and get rich off someone else’s bad habit,” Fugate said. “I don’t think it would increase jail overpopulation. But I would rather see jails overcrowded than see cemeteries overcrowded.”
Rep. Keturah Herron (D-KY) disagreed, and said this specific legislation was “scary.”
“When they were talking about that bill the idea was to go after people trafficking large quantities,” she explained. “That is not what happens on the street in connection with the police and the people they make contact with.
“What happens is often times people using these drugs get caught with trafficking, as well as selling which they may be doing to fund back their own habit. They aren’t big drug dealers, and they aren’t people bringing in fentanyl in mass quantities.”
‘Enhancing criminal penalties ... would only pile on’
The KCEP report also expressed concern over Senate Bill 179, a bill which enhances punishments for certain existing crimes if they were committed in an emergency area following a natural or man-made disaster that imposes “a significant threat to human health and safety, property, or critical infrastructure.”
The enhanced punishments apply to assault, burglary, criminal trespassing, criminal mischief, theft and robbery offenses.
According to the KCEP report, SB179 would enhance punishments one level for existing crimes that relate to assault, burglary, criminal trespassing, criminal mischief, theft and robbery if the crimes are committed in an emergency area following a natural or man-made disaster that “impose a significant threat to human health and safety, property, or critical infrastructure.”
“Research shows that enhancing criminal penalties does not actually prevent crime or make communities safer, and in the wake of a disaster, would only pile on to desperation in ravaged communities,” Mitchell and Thomas wrote.
Several other bills could’ve made incarcerations rates worse
While these two bills did pass, the policy reporters said the remaining 10 – which did not move in the legislature – would’ve taken Kentucky further in the wrong direction for incarceration rates. Those bills would affect the Kentucky pretrial system which determines whether a person charged with a crime waits for court in jail or elsewhere.
This current method, KCEP said, “is arbitrary, unfair, and unjust.”
“It is a system where people who have money can get out, and people who do not, cannot,” they said.
In Madison County, Tussey said about 80% of the current inmate population includes individuals awaiting pretrial hearings.
The KCEP report stated those who remain incarcerated while awaiting hearings are likely to lose their job, plead guilty even when innocent, and be found guilty if their cases do go to trial.
Mitchell said she would also like to see “serious work” on pretrial protocol, and said the state has an unfair system with individuals who are incarcerated simply sitting in jail because they can’t afford to get out.
“It is a cash bail issue and they just can’t get out because they can’t afford it,” she said. “However, wealthy people can get out today. That is not the case for people who don’t have money which is fundamentally unfair, there is no justice in that. No matter how much evidence there is stacked against you, you are still legally innocent until proven guilty.”
One bill deemed positive by the authors of the report also did not move. Senate Bill 31 would have required individuals awaiting pretrial have their case tried within 180 days for a felony charge or 90 days for a misdemeanor charge with some exceptions.
This would have reduced the amount of time people are legally able to be detained while awaiting pretrial, according to the report. It would have limited the maximum pretrial detention time to the maximum term of imprisonment someone faces for their most serious charge.
House Bill 313 and SB313 would have restricted how much money charitable bail funds are able to post to get inmates released from jail. Those bills also would’ve limited the charges for which bail funds could post bonds. These did not move on the floor, which the report deemed “fortunate.”
“Charitable bail funds provide bail and other support services to people who cannot afford them, providing one of the only ways for Kentuckians in these circumstances to avoid wealth-based detention,” the report stated. “Restricting charitable bail funds’ ability to respond to unjust wealth-based detention would only exacerbate the systemic inequities in our pretrial system.”
Bail funds became a hotly-debated topic in Kentucky after Quintez Brown, a Louisville activist who’s accused of shooting at Democratic mayoral candidate Craig Greenberg, was bailed out by a bail fund. The Louisville Community Bail Fund posted Brown’s $100,000 bond to have him released from the Louisville jail and placed on house arrest. Brown was later re-arrested for federal charges.
House Bill 136 and House Bill 521 would have legalized medical marijuana and authorized the regulated sale and purchase of non-medical marijuana in the state, which could have cut back on those incarcerated for related offenses.
The report stated other bills aimed at confronting the persistent felony offender law, a sentencing policy that provides prosecutors with the option of enhancing punishments for those convicted of a felony who have been charged with another felony prior to more recent alleged offenses.
This story was originally published July 14, 2022 at 10:00 AM.
