Odds that lawmakers will take a chance on being cast as soft on crime and revise the state’s persistent felony law don’t look favorable. But some lawmakers understand the connection between the “three strikes” law and Kentucky’s exploding population and costs.

Two groups are reviewing Kentucky’s penal code – the Criminal Justice Council and the Interim Joint Judiciary Committee, both spurred by rising costs for corrections. One way to do that is to sentence fewer inmates to longer sentences on PFO violations.

Dr. Robert Lawson, a University of Kentucky Law School professor, wrote the original PFO law in the mid-1970s and it required offenders to have spent time in prison before its application. But over the years lawmakers strengthened the penalties and eased the application of PFO laws. Now it is routine for offenders who’ve never spent time in jail to be charged as persistent felons.

Jesse Crenshaw, D-Lexington, a defense attorney who chairs the Budget Review Committee for Judiciary, said Thursday he’s not sure how much support changing the PFO laws might get in the legislature.

He said prosecutors are “very favorable to PFOs” and “guilty pleas flow from that.”

Justice Cabinet Secretary J. Michael Brown told a subcommittee of the Judiciary Committee Thursday that a total revamping of the code isn’t practical.

“It’s simply not possible in eight or nine months to revamp the whole code,” Brown told the subcommittee.

Instead, he said, the goal is to bring the legislature which convenes in January “a few in number but very targeted recommendations that could have immediate impact and then go back and take another look.”

The CJC’s preliminary recommendations include eliminating a few enhancements for drug offenses (accompanying charges such as possession of drug paraphernalia or drug offenses within 1,000 yards of schools which increase sentences for the underlying crime), more treatment for non-violent drug offenders and diversion. But they also include some additional crimes and charges, which as Rep. Robin Webb, D-Grayson, pointed out isn’t surprising given the number of prosecutors and law enforcement officials on the CJC and its subcommittees.

“There is certainly a tilt on the law enforcement side and it’s evident in the membership, it’s evident in the recommendations,” Webb said. “Our intent was to control corrections costs. This has the opposite fiscal impact of what we’re trying to do.”

“How in the hell did we get in this situation?” asked Rep. Kathy Stein, D-Lexington, who will move from the House to the Senate in January after winning election to a vacant seat in last week’s election. She spoke of prosecutors who often hold the threat of PFO charges over defendants in order to secure guilty pleas.

Recently, Attorney General Jack Conway said 90 percent of criminal cases are pleaded out without trial, often because of the threat of PFO application. Crenshaw has seen that in practice.

“On a couple of occasions I’ve had to tell my client we may win (at trial) or may not win, but if we lose, that PFO will be added to substantially increase your sentence.”

Brown said of 21,600 or so state felons, only 103 of them are so dangerous they’re unlikely ever to be released.

Stein says prosecutors tell her the public wants offenders locked up but, “The public doesn’t want to pay for it.”

Kentucky’s corrections budget has grown by almost $400 million since 1970 and county governments are hard pressed to subsidize jail operations. The counties have sued the state seeking more funding for jails.

Webb thinks the public is catching on.

“When I go home, I’m not getting a lot of negative impact except for a couple of prosecutors,” Webb said of the legislature’s efforts to reduce the costs.

The CJC sentencing committee is still considering a recommendation to amend the PFO law to reflect its original purpose, although the recommendation met resistance within the committee. Ed Monahan, the state’s chief Public Advocate, thinks it might still pass the committee.

“I think there is still hope,” Monahan said. “I fear prosecutors see it differently, but the evidence is pretty overwhelming this is the best opportunity to change what’s happening.”