STATE'S CRIME PENALTIES CRITICIZED

Penal Code Author: Sentencing Too Harsh

[Photo] Special to The C-J Clay County Deputy Finley Hobbs held handcuffs
that had been removed from prisoners he just delivered from the Clay County
jail to the state's Roederer Correctional Complex near La Grange in Oldham
County, where new inmates are processed. State Corrections Commissioner John
Rees said the ranks of state prisoners have grown this year by 1 percent a
month.

Prisoners from Clay County arrived Friday at the Roederer complex.
Some prosecutors say the community's security is worth the costs of
incarceration.

Kentucky's prison population has skyrocketed 600 percent since 1970
and continues to grow because of "irrational" penalties enacted by
lawmakers, according to a study by the man who wrote the state's penal
code.

The budget for housing state prisoners has risen from $7 million to
more than $300 million over that same period and is threatening to
bankrupt the system, University of Kentucky law professor Robert
Lawson says in a 72-page report that he's shared with leaders in all
three branches of government.

"We have demonized criminals in mass, lost sight of the importance of
distinguishing between dangerous ... and non-dangerous offenders, and
laid a foundation for a new citizen underclass made up of parolees,
ex-convicts and their families," Lawson says in his report.

The number of inmates had climbed from 2,838 in 1970 to 17,330 by last
year, according to the report, which cites as the principal causes
Kentucky's "brutally harsh" persistent felon law and an array of drug
penalties.

The number of persistent offenders in Kentucky's prisons has grown
from 79 in 1980 to 4,187 this year - more inmates than were held in
the entire system in 1970.

Only by softening its persistent felon and drug sanctions will
Kentucky be able to afford to house the flood of projected new inmates
and free resources for treating and training offenders, Lawson says in
the study.

The study, to be published next year in the school's law review,
doesn't include specific recommendations, but it suggests that
Kentucky's "three strikes" law be tailored to cover only violent
offenses for which the offender previously received prison time.
Lawson also said in an interview that the state's two-strikes law
should be eliminated.

The report also suggests that a law that elevates second drug offenses
by one felony level be eliminated.

Officials note points

Lt. Gov. Steve Pence, who is the state's justice secretary, and other
officials said they agreed with much of Lawson's analysis,
particularly with regard to drug offenders.

"We cannot incarcerate our way out of the drug problem; we need to
sentence drug offenders in a smart way," said Pence, whose statewide
task force in August recommended expanding options favoring treatment
over jail time.

State Corrections Commissioner John Rees said the ranks of state
prisoners have grown this year by 1 percent a month, mostly low-level
offenders. That is "a rate we cannot afford," he said.

But neither Pence nor Rees immediately embraced the statutory changes
suggested by Lawson, who acknowledged that with the "politics of
crime" still tilting toward tough treatment of criminals, it won't be
easy for public officials to scale back punishments.

House Judiciary Committee Chairman Gross Lindsay, D-Henderson, said
changes wouldn't occur unless prosecutors and judges push for them,
which he says is unlikely.

Jefferson Commonwealth's Attorney Dave Stengel said: "We are all aware
of the cost of incarceration, but it does appear that the more people
who are incarcerated, the lower the crime rate is, and the public is
willing to pay those costs."

Experts say a variety of factors has contributed to reduced crime
rates, and some research cited by Lawson found no connection.

Ray Larson, Stengel's counterpart in Fayette County, said: "Unlike my
friend Bob Lawson, I believe that public safety is the fundamental
purpose of government and that we should do all we can to guarantee
the safety and security of our citizens."

Report carries weight

Still, Lawson's report carries significant weight because he was the
principal drafter of Kentucky's current penal code, adopted in 1975,
as well as its rules of criminal evidence, and he has taught many of
the lawyers who serve in the General Assembly, said Rees and others.

"If they don't listen to him, they are not going to listen to
anybody," said Parole Board Chairman John Coy.

Louisville lawyer Oliver Barber, a prisoner-rights advocate, said:
"The most important thing about this study is who did it - it was not
done by a bleeding-heart liberal."

Jefferson County Public Defender Dan Goyette said it is a "must-read
for Kentucky's criminal justice planners and policy-makers."

The study documents how Kentucky's inmate population doubled in the
1980s, almost doubled again during the 1990s and today is "not even
close to a crest."

Projections show the state's prisons will have 4,350 more inmates in
2010 than at the end of last year, an increase of more than 25
percent. The state would need to build the equivalent of one new
prison every two years to keep up with projections, the report says,
at an estimated cost of $100 million each.

"If perspective is needed, it might be remembered that it took the
state almost two full centuries to reach a grand total of 3,000
inmates," Lawson said.

Kentucky's situation is not unique.

The United States has 5 percent of the world's population but 25
percent of its prisoners and locks up its citizens at six to 10 times
the rate of Western European countries.

Lawson acknowledges in his report that the penal code he wrote
provided extra punishment for habitual offenders, but he notes that it
applied then only to those who had served time twice before and
allowed parole for persistent offenders.

But as a result of "stupendous" changes enacted piecemeal over ensuing
decades, Lawson says, Kentucky's code is now one of the toughest in
the nation. It is one of only a few states, for example, that applies
its persistent felon law to nonviolent offenses.

"The three strikes law permits and sometimes even requires punishment
that is morally indefensible ... and that works to warehouse for
extended periods offenders who are unlikely to inflict serious harm on
the public," Lawson's report says.

The report also reveals that 3,632 offenders were serving time for
drug offenses last year, more than were incarcerated for all crimes in
1970.

The rise in Kentucky's prison population also can be attributed in
part to the Parole Board cracking down on releasing inmates, according
to Lawson's study. The share of parole hearings resulting in parole
dropped from nearly two-thirds in 1981 to about one-third in 2002,
according to the report.

County jails take up slack

With prisons unable to house them all, nearly one-third of the state's
prisoners - some serving sentences of up to 10 years - now are held in
county jails designed to hold defendants for one year or less.

There are, for example, 377 state prisoners in Jefferson County
Corrections Department facilities.

That's a problem, Lawson says, because as difficult as it is to
provide meaningful training or drug treatment in a few well-staffed
prisons, it is impossible when felons are scattered among 66 county
jails.

"The simple truth is that the state's jail program is a confinement
program and little else, a warehousing of inmates and a total
abandonment of effort to facilitate the ultimate return of offenders
to the street as law-abiding citizens," the report says.

The study, titled "Difficult Times in Kentucky Corrections -
Aftershocks of a `Tough on Crime' Philosophy," was compiled based on
data provided by state agencies, Lawson said in an interview. He said
he began it about a year ago based on his belief that "we are taking
people's freedom away when it might not be necessary."

"I am not saying there are not some really bad people who should be in
prison," he said, "but we are treating them all the same."

But Larson, the Fayette prosecutor, says that first offenders are
almost never sent to prison in Kentucky and that those being
imprisoned represent the "5 percent of the criminals who commit 60 to
80 percent of the crime."

"Those who believe that we are incarcerating too many of these career
criminals must bear the burden of explaining the reasons ... to future
victims ... if they are released, as Lawson proposes," Larson said.

Too many locked up

Jo Ann Phillips, who is chairwoman of the state Crime Victims
Compensation Board, said violent offenders need to be locked up, but
she agreed with Lawson's study that too many people are incarcerated.
Many offenders, she said, should be doing public service and "paying
their own way."

Lawson notes in his study that more than 10,000 people enter and leave
the state prison system each year - "a massive rotation of inmates
that could cause even hard-core, get-tough-on-crime advocates to
wonder if the net effects ... might not be more negative than positive."

He asserts that the number keeps the system from providing what
inmates need to return successfully to the community.

Sixty percent of Kentucky inmates are chemically dependent, the report
says, yet less than 20 percent who need treatment get it.

"We have acted under a belief that no price is too high to pay for
protecting the public from crime and have generated incarceration
costs that now consume huge proportions of corrections budgets,"
Lawson says in the report, "all to the detriment of programs that
corrections officials know to be crucial to any hope of converting
offenders into law-abiding citizens."