Kentucky Criminal Justice Reform Amidst the Opioid Epidemic

Chelise L. Conn Greer, Staff Editor[1]

Kentucky’s prison population is set to increase by 19 percent over the next ten years, costing taxpayers “nearly $600 million in additional costs.”[2] With the ninth highest incarceration rate in the nation, Justice Secretary John Tilley stated that “Kentucky’s prisons will run out of space by May 2019.”[3] Why is Kentucky’s prison system running out of space? The statistics are revealing. Between 2012 and 2016, “there was a 38 percent growth in Class D felony admissions,” which are Kentucky’s least serious felony convictions.[4] Moreover, 65 percent of “new felony admissions in 2016 are serving for nonviolent drug or property crimes, nearly half of which have no prior felony convictions.”[5] Kentucky’s female incarceration rate is more than twice the national average,[6] while the amount of women incarcerated for drug possession has increased 140 percent over the last five years.[7] These statistics are horrendous. The data reveals that Kentucky’s reliance on incarceration has not generated any societal benefit,[8] rather “taxpayers are not getting a sufficient return on their public safety dollars” and “41 percent of offenders are returning to state custody within two years of release.”[9] Further, imprisonment without treatment has yet to reveal any positive results in the nation’s escalating opioid epidemic.[10]
Recently, the Kentucky Legislature introduced HB 396[11] based on recommendations from the Criminal Justice Policy Investment Council Work Group (Work Group).[12] If HB 396’s policies are signed into law, the Work Group found that they “would avert 79 percent of the projected prison population growth, and save nearly $340 million in projected prison costs over the next ten years.”[13] What exactly would HB 396 do if signed into law? First and second drug possession convictions would be reclassified as misdemeanors.[14] The felony theft threshold would be raised from $500 to $2,000, resulting in fewer Kentuckians with felony convictions.[15] Select non-DUI traffic and licensure offenses would be reclassified from misdemeanors to violations.[16] The length of parole and probation violators sentences will be reduced for technical violations.[17] An administrative parole process will be established “that allows inmates serving a sentence for a Class C or D offense that is not a violent or sexual offense to be released at their parole eligibility date without a hearing in most cases.”[18] Finally, a cost sharing program with local governments will be created funded by the reduction in Class D felony offenders, and the funds will be “used to establish and sustain community-based supervision and treatment programs that provide alternatives to incarceration.”[19]

Additionally, SB 133[20] is currently in the legislature, and the bill primarily deals with female incarceration. SB 133 proposes to transfer expecting mothers awaiting trial for nonviolent crimes to rehabilitation centers.[21] It also requires adequate “nutrition and hygiene for pregnant inmates and [bans] the shackling of pregnant women when they are in labor.”[22] SB 133 also raises the threshold for a Class D felony theft charge from $500 to $1,000 if the person has not been convicted twice of the same offense in the last two years.[23]

It is no secret that Kentucky is currently amidst an opioid epidemic that cannot be resolved with prison sentences.[24] Evidence suggests that harsher penalties for drug crimes does not reduce drug abuse,[25] and higher rates of drug imprisonment does not relate to lower rates of drug use, arrest, or overdose deaths.[26] Putting drug offenders behind bars for longer periods of time only creates costs for taxpayers and does little for public safety.[27] To combat the opioid epidemic, individuals are in need of treatment and medical help.[28] HB 396 and SB 133 are positive steps in the right direction, even if their goals are to reduce spending and incarceration rates. If we are to pull our citizens out of the opioid epidemic, Kentucky needs to incentivize treatment and not imprisonment.

[1] J.D. Expected May 2019.

[2] Jack Brammer, Kentucky’s Prison Population is Exploding. Here’s What Bevin Wants to Do About it, Lexington Herald Leader (Feb. 20, 2018), http://www.kentucky.com/news/politics-government/article201086479.html.

[3] Id.

[4] Ky. CJPAC Justice Reinvestment Work Group, Final Report 3 (Dec. 2017), https://justice.ky.gov/Documents/KY%20Work%20Group%20Final%20Report%2012.18.pdf.

[5] Julie Warren, Kentucky Cannot Afford Criminal Justice Reform Fatigue, Lexington Herald Leader (Jan. 12, 2018), http://www.kentucky.com/opinion/op-ed/article194494289.html.

[6] Id.

[7] Id.

[8] Id.

[9] See Ky. CJPAC Justice Reinvestment Work Groupsupra note 4.

[10] See German Lopez, The New War on Drugs, Vox (Sept. 13, 2017), https://www.vox.com/policy-and-politics/2017/9/5/16135848/drug-war-opioid-epidemic (“[E]mpirical evidence remains clear that tougher prison sentences are not an effective means to stopping the epidemic.”).

[11] H.B. 396, 2018 Reg. Sess. (Ky. 2018), http://www.lrc.ky.gov/recorddocuments/bill/18RS/HB396/bill.pdf.

[12] Work Group Issues Recommendations for Criminal Justice Reform in Kentucky, Kentucky League of Cities (Dec. 19, 2017), http://www.klc.org/news/5266/Work_Group_Issues_Recommendations_For_Criminal_Justice_Reform_in_Kentucky.

[13] See Ky. CJPAC Justice Reinvestment Work Groupsupra note 4.

[14] Ashley Spalding, Four Main Ways House Criminal Justice Bill Creates Savings, Ky. Ctr. for Econ. Pol’y: Ky. Pol’y Blog (Feb. 27, 2018), https://kypolicy.org/four-main-ways-house-criminal-justice-bill-creates-savings/ (“[T]here are more opportunities with misdemeanor drug offenses than felonies for a court to order a defendant to a substance abuse assessment and treatment as a condition of probation.”).

[15] Id.

[16] ACLU Ky., HB 396 CJPAC Justice Reinvestment Bill, https://www.aclu-ky.org/sites/default/files/field_documents/hb_396_cjpac_bill_summary_1-pager_2.21.pdf (last visited Mar. 4, 2018).

[17] See Spalding, supra note 14.

[18] Id.

[19] H.B. 396, 2018 Reg. Sess. (Ky. 2018), http://www.lrc.ky.gov/recorddocuments/bill/18RS/HB396/bill.pdf.

[20] S.B. 133, 2018 Reg. Sess. (Ky. 2018), http://www.lrc.ky.gov/recorddocuments/bill/18RS/SB133/bill.pdf.

[21] Bruce Schreiner, Bill Steering Some Pregnant Inmates to Rehab Advances, U.S. News (Feb. 23, 2018), https://www.usnews.com/news/best-states/kentucky/articles/2018-02-23/bill-steering-some-pregnant-inmates-to-rehab-advances.

[22] See Brammer, supra note 2.

[23] Id.

[24] See Ameer Mabjish, Criminal Justice Reforms Can Lead Us Out of Opioid Epidemic; We Can’t Arrest Our Way Out, Northern Kentucky Tribune (Feb. 11, 2018), http://www.nkytribune.com/2018/02/ameer-mabjish-criminal-justice-reforms-can-lead-us-out-of-opioid-epidemic-we-cant-arrest-our-way-out/ (“Reducing overdose deaths and reducing the prison population are not diametrically opposed goals.”).

[25] See Ashley Spalding, New Study Provides More Evidence Harsher Penalties Are Not Solution to State’s Drug Problems, Ctr. for Econ. Pol’y: Ky. Pol’y Blog (July 11, 2017), https://kypolicy.org/new-study-provides-evidence-harsher-penalties-not-solution-states-drug-problems/.

[26] Letter from Adam Gelb, Dir., Pub. Safety Performance Project, to Governor Chris Christie, The President’s Comm’n on Combating Drug Addiction and the Opioid Crisis (June 19, 2017), http://www.pewtrusts.org/~/media/assets/2017/06/the-lack-of-a-relationship-between-drug-imprisonment-and-drug-problems.pdf.

[27] Id.

[28] See generally German Lopez, There’s a Highly Successful Treatment for Opioid Addiction. But Stigma is Holding it BackVox (Nov. 15, 2017), https://www.vox.com/science-and-health/2017/7/20/15937896/medication-assisted-treatment-methadone-buprenorphine-naltrexone (detailing the benefits of medication-assisted treatment); German Lopez, How to Stop the Deadliest Drug Overdose Crisis in American History, Vox (Dec. 21, 2017), https://www.vox.com/science-and-health/2017/8/1/15746780/opioid-epidemic-end (detailing solutions to stop the opioid epidemic).

*Image licensed in the Public Domain, pursuant to CC0