Last week, Kentucky leaders on both sides of the aisle pledged to make criminal justice reform a top priority this session. This commitment is welcome given the growing prison overcrowding crisis.
Kentucky holds the dubious honor of being among the top ten states for highest overall incarceration rates, and falls only behind Oklahoma for being the highest incarcerator of women. A significant percentage of Kentucky’s prison population are drug addicts convicted of low level, felony drug possession. Kentucky’s practice of incarcerating these people comes with a hefty price tag that has driven the state’s correctional budget north of $600 million annually. Moreover, it diverts limited law enforcement and correctional resources away from violent offenders. Without reform, these costs will continue putting an ever-greater burden on Kentucky’s taxpayers and economy.
Only a week into the 2020 session, lawmakers have plenty of time to consider a number of proposals that would uphold public safety and save money while reducing Kentucky’s non-violent prison population.
- Defelonization of simple possession: From 2012 to 2016, tracking closely with the opioid epidemic, Kentucky’s Criminal Justice Policy Assessment Council (KCJPAC) calculated a 102 percent increase in court commitment for simple drug possession, creating a major uptick in prison populations. KCJPAC noted that “[o]f those sentenced to prison in 2016, 42 percent had no prior felony charges, and 72 percent had only a single possession charge on that admission and no other felony charges.” In many states, simple possession is either never a felony, or at least not a felony if it is the first or second simple possession offense. Legislators should defelonize simple possession for nonviolent offenders by reclassifying the offense as a misdemeanor. In addition to reducing prison populations, this would also help keep more individuals in Kentucky’s workforce.
- Increasing the felony theft threshold: In 2009, Kentucky increased its felony theft threshold (i.e., the value of goods at which the theft moves from being a misdemeanor to a felony) from $300 to $500. With this move, Kentucky did not see an increase in thefts. In fact, Kentucky has actually seen a significant decrease in thefts in recent years, perhaps in large part due to technological advances in surveillance and security. Despite the decline in reported thefts, Kentucky has yet again seen an increase in prison population: new court commitments for theft by unlawful taking and receiving stolen property grew by 48 percent, over half of which were for amounts less than $1000, and nearly three quarters of which were for amounts less than $2,000. Rep. Ed Massey (R-Hebron) filed House Bill 161, which would increase the felony theft threshold to $1,500. This is a reasonable reform, which mirrors what other conservative states have already done, that would reduce prison overcrowding. Research across the country has shown no increase in theft due to a threshold increase.
- Probation and parole reform: Technical violations of probation involve behavior that would not otherwise rise to the level of criminal conduct (e.g., missing meetings with probation or parole officers, absconding [often due to relapsing], or failing treatment or a drug test) if the individual were not out on supervision. KCJPAC found that in 2016, over 50 percent of Department of Corrections admissions stemmed from revocation of probation or parole. Specifically for parole revocations, 96 percent were for technical violations. Revocations also often result in longer sentences. According to KCJPAC, “[d]rug-possession probationers who were revoked from probation were sentenced nine months longer, on average, than drug possession offenders sentenced straight to prison for a new offense.” Admitting these individuals into prison due to technical violations is taking an increasing amount of limited prison resources and space, when many of these people would be better served to be in alternatives, such as drug treatment programs. Individuals cannot avoid accountability for their parole or probation conditions, but legislators should ensure proportionate responses. Rather than send the individual back to prison for a longer sentence than a new conviction, legislators should consider limiting the length of time to a shorter period commensurate with the violation.
Over the next three months, lawmakers should increase the momentum from recent sessions, and move forward on evidence-based solutions that promote public safety and begin to reduce prison overcrowding.