OPINIONS MIXED ON MANDATORY SENTENCING

American Bar Association Sparks Debate

Incarceration is often the first resort in dealing with criminal offenders
passing through America's courts. But there may be more effective options,
according to recently released results from a study by the American Bar
Association.

The nine-month study was launched in response to an August 2003 speech by
U.S. Supreme Court Justice Anthony M. Kennedy that identified "the
inadequacies and the injustices in our prison and correctional systems." It
recommended the abolishment of mandatory minimum sentences.

The report said lengthy sentences should be reserved for the most serious
criminal offenders who "pose the greatest threat to society."

Alternatives to incarceration should be sought when offenders pose little
or no threat to society, the report said, or when it offenders could
benefit from rehabilitation and counseling services.

There are no mandatory minimum sentencing guidelines in Kentucky state
courts, but rather a range of penalties known as indeterminant sentencing.
The first penalty judges consider is probation, according to Kentucky Court
of Appeals Judge John D. Minton.

However, certain offenses, such as those in the "violent offender
category," are non-probatable and are not parole-eligible until 85 percent
of the sentence is served, according to state law.

Jail Overcrowding

Minton said alternatives to incarceration should be sought for another
reason to control the population of prisons and jails.

"I don't think it would be out of line to say the housing market that's
growing fastest in the U.S. is prison," he said. "It's a societal issue
that needs to be looked at."

The likelihood that someone living in the United States will go to prison
during his or her lifetime more than tripled to 6.6 percent between 1974
and 2001, according to the study.

The ABA's findings also reported that federal spending on jails and prisons
escalated from $9 billion to $49 billion between 1982 and 1999.

Warren County Jailer Jackie Strode said the rising numbers are an
indication that "more of the population of the United States are committing
crimes."

First Assistant Commonwealth's Attorney Chris Cohron said the increased
prison population is due to "better-funded, better-trained and
better-equipped law enforcement," holding up the relatively new Bowling
Green-Warren County Drug Task Force as an example of the government's
emphasis on enforcement.

Treatment vs. Incarceration

However, not everyone sees the numbers as a positive.

Local defense attorney Brad Coffman said the data suggests the current
system may be ineffective.

"The U.S. has more people in prison than any other country, and is that
really lowering the crime rate?" Coffman said. "We're putting all these
'bad people' in the pen and, theoretically, the crime rate should drop, but
it doesn't seem to be working."

After installation of new technology earlier this year, Warren County
Regional Jail was able to monitor for the first time its recidivism rate,
which is the number of inmates reincarcerated within two years of being
released from prison through parole, shock probation or completion of
sentence. The rate stood at 61 percent.

Nevertheless, Strode maintained that incarceration helps prevent crime and
Cohron agreed, rebuffing the claims of what he called a "treatment-oriented
society."

"A lot of people think that anyone who gets four DUIs within a four-year
period needs to go to treatment," Cohron said. "They are obviously an
alcoholic. My opinion is it's like having a loaded gun on the street. It's
only a matter of time before they run over and kill somebody. Incarceration
will keep that from happening awful hard to run somebody over when you're
locked behind a wall."

There is, however, room for more treatment and counseling within the
confines of the jail, Strode said.

"A lot of it is court-ordered, but I'm just wondering if there's enough,"
he said. "But if a person doesn't want to help themselves no matter how
many counselors or support networks you have for them, they have to want to
help themselves."

Drug Court

Increasingly popular in the state are drug courts, Minton said. Warren
County established its drug court in 1997, the third county in the
commonwealth to do so, behind Jefferson and Fayette counties.

Now more counties are looking to replicate that idea, and Warren County is
currently in the process of implementing a juvenile drug court.

The program holds drug offenders accountable for their actions by requiring
them to stay clean, find work and report to authorities regularly. After
many weeks in the program, drug court participants graduate and are
encouraged to become productive members of society.

Warren County's justice system is changing the way it utilizes drug court
in an effort to provide quicker intervention for first-time drug offenders
and those charged with possessions. After their preliminary hearings in
district court, those drug offenders can now be given the option to go
straight to drug court, Cohron said.

"It is cheaper initially to get them treatment rather than incarceration,"
he said. "It also puts the onus on them. These are adults and this puts the
ball in their court. If they succeed at treatment, hopefully we have a
person who can go back out and become a contributing member of society.

"If you can get somebody (treatment) on a possessionary offense, hopefully
you can get them early enough where they won't be committing burglaries and
robberies."

Judicial Discretion

Opponents of mandatory minimum sentencing also argue that current policies
do not allow judicial discretion when doling out punishments.

The blame for the creation of mandatory minimum sentencing can be "laid at
the feet of the judiciary," Warren Circuit Court Judge Steve Wilson said.
"These mandatory minimums were established to take the discretion away from
the judges. Judges weren't doing what the community felt they should be
doing. The legislative bodies felt like the courts were not being harsh
enough to defendants."

As such complaints of leniency have not arisen to a great extent concerning
judicial mandates issued in Kentucky state courts, Wilson said he does not
see the need for mandatory minimum sentencing in the commonwealth.

As an example of mandatory minimum sentencing at the federal level, a
person convicted of two prior felonies if caught at any time in their lives
with a loaded or unloaded gun could be charged with being an armed career
criminal, which carries a sentence of 15 years to life.

"I realize people would say, 'He doesn't have any business having a gun,'
and I don't disagree, but I think the punishment's way out of line,"
Coffman said, adding that there is no room for discernment between
possession of a gun with intent to commit a crime or possession for
protection purposes, or even for the purpose of selling or trading the firearm.

"I think every case is different," said Senior Circuit Judge Tom Lewis, who
presided 21 years in Warren circuit and district courts. "It's not just a
simple decision where you can say, 'Gosh, the sentence is 10 to 20. They
ought to get 20 because they're bad guys.' If it was that simple, then
mandatory minimum sentences would work just fine."

State legislatures and U.S. Congress would have to pass new legislation to
repeal the existing mandatory minimum sentencing laws.

The ABA, the nation's largest lawyers' group with more than 400,000
members, will vote in August on whether to adopt the recommendations as
official positions of the organization. The ABA's policies are not law, but
are influential.

"For more than 20 years, we have gotten tougher on crime," ABA President
Dennis Archer said. "Now we need to get smarter."