Nearly 900 state inmates have been released from Kentucky prisons and jails since late May under a policy change on parole credit approved this year as part of the state budget.
And 887 other convicted felons have been released from parole supervision, according to the Justice and Public Safety Cabinet, as the state deals with seriously overcrowded prisons.
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The change, little noticed by many when it was made, already is causing concern and criticism from people who say it is misguided and potentially dangerous. One prosecutor has challenged the rule, saying it is unconstitutional and setting up what could be a pitched legal battle.
A lawmaker who worked on the provision said it was necessary to save money at a time when state revenue has fallen and the prison population has swollen because of tougher laws and efforts to fight drugs.
”We had to be creative,“ said Rep. Robin Webb, D-Grayson.
The legislature approved several measures this year to reduce the cost of housing inmates, including quicker consideration of parole for some inmates, giving inmates more time off their sentences for earning degrees or completing certain drug- or alcohol-treatment programs, and shaving time off sentences for inmates with good behavior.
Felons who violate parole rules and have to go back to jail now get credit against their sentence for the time they were out on parole.
Consider this example: A man is sentenced to five years in prison for theft, wins parole after serving one year, is out on parole for a year, then commits a violation — such as taking drugs or failing to report to a parole officer — for which his parole is revoked.
Under the old rule, he would have four years left to serve on his original five-year sentence. Under the new rule, he would get credit for the year he was on parole, so he would have only three years left to serve.
The credit doesn't apply to people who violate parole by being convicted of a new felony or absconding from supervision.
It does, however, apply to the calculation of when a parolee will be released from supervision.
It also applies retroactively, so that a person could get credit for time on parole from an earlier crime. The circumstances in which that would apply appear to be limited, however.
As of Monday, 882 people had been released from prison or jail under the policy, and 887 had been discharged from parole supervision, said Jennifer Brislin, spokeswoman for the Justice and Public Safety Cabinet.
"A real problem'
Commonwealth's Attorney Eddy Montgomery has filed a motion that argues the rule runs afoul of the state constitution and judges' sentencing orders.
The change will reward people even if they commit parole violations, said Montgomery, the prosecutor for Pulaski, Lincoln and Rockcastle counties.
The policy threatens public safety because people ”intended to be in some form of imprisonment for a set period of time are allowed to serve that sentence — and gain credit for that sentence — while under no actual restraint on their freedom,“ he said in his motion.
Most members of the public probably aren't aware of the new rules, Montgomery said. ”They snuck it into the budget.“ The change will make his job harder because he'll have to explain to crime victims why a convicted felon's time behind bars has been reduced, he said.
”I've got a real problem counting street time,“ Montgomery said.
He filed the motion in the case of a Pulaski County man who was convicted in 2002 on charges that included felony drunken driving, wanton endangerment and being a persistent felony offender. Sentenced to 25 years in prison, the man was paroled in May 2006.
The man in the test case has not been sent back to prison for a parole violation.
Montgomery has asked a judge to hold a hearing on the issue and determine three things: if the Department of Corrections is following the policy; whether the department will give the defendant in his case credit for ”walking around time“ while figuring when his sentence will expire; and if that runs counter to the sentence in the case.
If the judge agrees the rule is wrong, Montgomery said, his hope is to get an injunction against applying it in his three counties.
The case could lead to a broader fight over the rule that would have statewide ramifications.
Allison Martin, spokeswoman for Attorney General Jack Conway, said the office hasn't challenged the street credit rule, but is monitoring the issue.
”Prosecutors are very concerned about the budget provision affecting parolees,“ she said in a statement. ”Some of these defendants have committed serious crimes, and the public and prosecutors expect them to serve the maximum time available according to Kentucky statutes.“
However, others argue that a person who has successfully followed the rules while on parole should be credited for that time against the time he or she has to serve in jail or be supervised.
”We do feel like that's fair,“ said Dawn Jenkins, spokeswoman for the Kentucky Department of Public Advocacy.
Webb said giving people on parole credit for the time they stay out of trouble is an incentive to try to do well.
”You should be rewarded for that time on parole,“ she said.
Webb said that's true even when people make a mistake, which may be a technical violation, or when a non-violent drug offender relapses.
Officers who supervise parolees are stretched thin, she said. Legislators felt the street credit policy would relieve that burden and give them another tool to use, she said.
Others states have used similar parole credit programs.
Because Kentucky's was approved in the two-year budget, it will expire at the end of that time unless legislators renew it. That creates a chance to see how the program works, Webb said.
Webb also disagreed that the policy creates a public-safety risk.
”Public safety is our main goal,“ she said of legislators.