Kentucky’s criminal justice system is broken; let’s fix it


In May of next year, Ken¬tucky will run out of prison space, and without substantive changes, the Commonwealth may be forced to release prisoners early.

How did we get here?

Well, at a time when the nation’s incarceration rate declined for the third consecutive year, Kentucky’s incarceration rate continues to surge at a dizzying pace. The commonwealth’s female incarceration rate is more than two times the national average and now stands as the second-highest in America.

Even before the U.S. Department of Justice released these newest statistics just a few weeks ago, Gov. Matt Bevin, along with the House, Senate, the secretary of Justice and Public Safety Cabinet and the chief justice of the Kentucky Supreme Court, had become alarmed enough about the increasingly worrisome trendlines that they resolved to tackle the issue. They impaneled the Justice Reinvestment Work Group in spring of 2017 to study the numbers and recommend data-driven solutions.

After a five-month deep dive, this broad range of stakeholders, consisting of judges, county attorneys, commonwealth’s attorneys, victims’ advocates, defense attorneys, law enforcement personnel, jailers, the Kentucky Chamber of Commerce, the Office of the Lieutenant Governor and the Cabinet for Justice and Public Safety, among others, found the largest driver of the prison growth was substantial increases in admissions for low-level, nonviolent offenses.

The group discovered that between 2012 and 2016, the number of people incarcerated for drug possession doubled and admissions for the lowest felony class increased 38 percent. In fact, nine of the top 10 crimes for which people were sentenced to prison in 2016 were for nonviolent offenses.

While our jails and prisons increasingly are filled with individuals convicted of nonviolent, non-sex offenses, policymakers in conservative states — including Mississippi, Georgia, South Carolina, Texas (started reforming way back in 2007), South Dakota, Alaska and Utah — are advancing research-based reforms to safely curb growth and, most importantly, improve public safety.

These states sharpened their sentencing and supervision policies to focus prison beds on the most serious and violent offenders and then reinvested the savings into more cost-effective strategies to reduce recidivism. And it worked.

As of 2016, 35 states have reduced both their crime and incarceration rates.
These states now offer more substance abuse programs for addicts — a must in the midst of this opioid crisis — and mental health treatment.

They improved their criminal codes, better trained personnel in the legal rights of victims, strengthened community supervision, and some took the step of modifying their pretrial detention policies so accused offenders that were a potential threat to society weren’t released simply because they had the cash to get out, while many poor defendants of little threat languished because they simply didn’t have the means.

The recently proposed House Bill 396 is our road map to a criminal justice system that protects the public while using prison resources more effectively. Kentucky’s jails and prisons are bursting at the seams, but there’s still a window to refocus our prison and jails on serious and violent offenders.

It is my hope lawmakers seriously consider enacting these proven reforms.

Daniel Cameron is spokesman for the Kentucky Smart on Crime Coalition and an attorney at Frost Brown Todd in Louisville.


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Arnold Turner


Amid all of the noise of this legislative session about pensions and the budget, there is an extremely important piece of legislation moving along with very little attention.

If passed, it will remove the ability of the criminal justice system in Kentucky to hold anyone accountable and it will devastate all of our communities.

HB 396 is being called “criminal justice reform.” Here are some of the provisions of this bill that we want the public to be aware of:

• It reduces the penalty for possession of heroin, cocaine, methamphetamine and all other Schedule I and II drugs from a felony to a misdemeanor. Not just for the first offense. A repeat offense also would be a misdemeanor.

• Reduces penalties on many crimes including thefts by requiring that someone steal something valued at $2,000 or more in order to be charged with a felony.

• Reqiores all prosecutors in every case allow what is called “deferred prosecution” for drug offenses. This means actually withholding prosecution, conviction and penalty for these offenses, after downgrading them to a misdemeanor.

If a prosecutor denies a request by a defendant charged with one of a drug-related crimes to have prosecution deferred, the prosecutor must prove and make a record of “compelling reasons why a criminal conviction is necessary.”

• For those being supervised on probation who do not show up or respond to probation supervision, the probation officer must wait at least 30 days and must document at least four attempts to locate the person before reporting the violation.

Once reported for absconding from probation, the probation department would be required to still allow continued probation supervision instead of incarceration for the first violation in most cases and is encouraged to allow probation even after the second violation.

• Once it is determined someone can be returned to prison for violating probation, it is encouraged that the person be summoned rather than arrested.

• The parole board, without court approval, will be required to release all inmates in prison for conviction of a class C and D felony at their earliest eligibility date without a hearing.

• Those convicted of crimes who are on probation will be given credit toward their sentence for every month they are “substantially compliant” with their probation. If they violate probation and are incarcerated, their sentence already will be reduced before they ever walk in.

• Once an inmate reaches age 65 and has completed 15 percent of his/her sentence or (not and) if the inmate has a chronic medical condition, the inmate automatically will be released from prison unless he/she is sentenced to death or is determined a violent or sexual offender.

• Bail and release will be determined by a computerized risk assessment rather than a judge and even in cases of a felony and violent and sexual offenses, a large number of inmates will be required to be released immediately after the are arrested. A defendant who is released may refuse to participate in drug screening while released pending their court appearances.

The reasons for these drastic measures? The state cannot afford to house the number of people who currently are violating the laws.

The answer provided: Change the law so fewer people can violate it.

Between 2012 and 2016 Kentucky has experienced double the number of inmates for drug possession. We have a drug problem that will be alleviated only by strong enforcement, local decision making and smart use of incarceration.

This is not smart use of incarceration. It puts you at risk. Frankly, it puts addicts at risk of dying.

The report that led to this legislation stated that 61 percent of Kentucky’s prison admissions during 2012-2016 were because of failed probation or parole supervision. That means after being given a chance (after other multiple chances that we already provide within the system) not to go to prison, but rather be supervised in the community, such a large number were unsuccessful that we must change the rules so that they can be “successful.”

We will look away as they continue to poison themselves to the point of incapacitation and death, eliminate their own ability to be employed and, most importantly, as they neglect their children in favor of their next hit. And this legislation will call that success.

This is urgent. This bill will be heard for comment at noon Wednesday before the House Judiciary Com­mittee. Please contact not only our local legislators, but all legislators serving on the House Judiciary Committee immediately to voice opposition to HB 396.

Hardin County Attorney Jenny Oldham and Commonwealth Attorney Shane Young jointly prepared this column.

Sunday, March 4

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