PROSECUTORS' MISUNDERSTANDING PRODUCES PARADE OF PROBATIONS

Prosecutors across Southeastern Kentucky say they have no choice: A
little-noticed change to state law has forced them to give probation to
repeat drug offenders.

But a state appellate court ruling says otherwise.

House Bill 455, known as Gov. Paul Patton's crime bill, drew favorable
reviews in the 1998 General Assembly because of its requirement that
violent felons serve 85 percent of their sentences.

Less noted was a change designed to free up prison space for violent
criminals by requiring that judges consider probation and other light
sentences for non-violent felons. Previously, the law merely urged judges
to consider probation; the new language required such consideration in all
but the riskiest cases.

Prosecutors such as Letcher Commonwealth's Attorney Edison Banks say the
change leaves local court officials with little choice when sentencing drug
offenders. In Letcher County, about 84 percent of drug felons over the past
six years have received probation, according to state records.

"I don't think the legislature did a good enough job of telling the public
that they didn't say 'may probate,' but 'shall probate,' " Banks said.

In reality, the legislature did no such thing, according to the Kentucky
Court of Appeals. In a 2000 case, the court ruled that the 1998 change to
state law did not eliminate trial courts' authority to determine when
probation is inappropriate.

Jim Lovell, a former legislator who drafted the change, agreed that local
courts "still have all the discretion in the world."

"If they think the crime is so serious, they still have the option to send
that person off," Lovell said.

Specifically, the law allows a judge to send a non-violent offender to
prison only if the judge believes any of the following:

* There is a substantial risk that the defendant will commit another felony
soon.

* The defendant needs "treatment that can be provided most effectively by
... commitment to a correctional institution."

* Probation would "unduly depreciate the seriousness" of the crime.

Kentucky's probation numbers have skyrocketed since the bill passed.

During June 1998, 10,524 felons on probation were supervised by the state's
probation and parole offices, according to the state Department of
Corrections. In June 2000, that number had climbed to 12,791 felons. By
last June, it was 15,439.

But not every court contributes to the trend.

Circuit Judge Larry Raikes, a 20-year veteran who presides over Nelson,
Hart and Larue counties in Central Kentucky, has the state's lowest rate of
probation in drug cases.

According to state records, Raikes has not granted probation in any Nelson
County drug case in the past six years. He granted a total of seven
probations in the other two counties.

In an interview, Raikes said he thinks drug abuse is the worst social
problem in the country.

"Anyone convicted of a drug felony, in my opinion, does not deserve
probation," Raikes said.

Kentucky Supreme Court Chief Justice Joseph Lambert said he doesn't
consider it a problem that Kentucky probation rates range from 0 to more
than 80 percent, depending on the circuit court. The state has long taken
the stance that judges should have broad discretion in sentencing, and
judges at both ends of the spectrum are following the law, Lambert said.

If the public wants to limit judges' use of probation, the law needs to be
changed, Lambert said. If that happens, another change would be needed, he
said: Build more prisons.