FRANKFORT — Before Kentucky faced a crumbling budget and the bottom fall out of tax collections, lawmakers were looking ways to save money on a growing prison population.

Two years later, the state budget has been cut by more than $800 million; it faces a $161 million shortfall in the current year; and economists predict as much as a $1.3 billion hole in the next two year budget after federal stimulus money runs out.

University of Kentucky Law Professor has argued for years the state has so stiffened penalties for non-violent crimes that it led to an explosion of inmates. Since 1970, the state inmate population has grown from around 3,000 to nearly 23,000 two years ago and still hovers around 21,500 even after lawmakers made it easier to qualify for parole.

But that’s where fiscal practicality meets political reality. Easing up on sentences for non-violent crimes makes lawmakers uneasy. They fear opponents will brand them as “soft on crime.”

“It’s going to be a political hot button,” said Rep. Johnny Bell, D-Glasgow, a defense attorney who favors easing or outright elimination of Kentucky’s persistent felony 2 law which enhance sentences for repeat offenses. He would not change the PFO law for violent offenses.

Bell serves on a subcommittee of the judiciary committee which is looking at possible changes in the penal code. He says the $19,000 a year it costs to house one drug offender could provide rehabilitation services to multiple offenders, giving them a chance to return to the “community as a productive, tax paying citizen.”

“If we’re able to direct money from prisons which have a high recidivism rate and get money into the rehab programs where the recidivism rate is much lower and treat more people, it will save the state a lot of money,” Bell said.

Many prosecutors vigorously defend the PFO laws as instrumental in protecting the public from offenders who have little likelihood of reforming and sooner or later will end up back in prison.

Shelley Johnson, spokeswoman for Attorney General Jack Conway, said Conway’s office is reviewing recommendations but has concerns about changes to PFO laws.

”The Attorney General believes the persistent felony law is an important tool to help keep communities safe,” Johnson said. “It is his hope prosecutors are consulted before any changes are proposed.”

Allen Trimble, Commonwealth Attorney for the 34th Circuit in McCreary and Whitley counties, said the PFO is an effective tool against habitual offenders – even non-violent ones.

“We don’t have a lot of repeat violent offenders,” Trimble said, because most violent offenders end up with long prison sentences anyway. “The PFO laws we have now are the most effective tool prosecutors have to prosecute people who are the source of a lot of irritation to the public.”

He said his office receives the most complaints about habitual small-time criminals, those who steal a four-wheeler, serve a few months in jail and a couple of years later steal a car or break into a home. It expedites the court system, too, he said. Many offenders plead out to underlying charges in order to avoid a PFO enhancement, saving time and money, Trimble said.

According to Bell, the PFO 2 can create situations where two individuals commit the same offense but face dramatically different sentences. A first-time offender charged with possession of a controlled substance faces a Class D felony sentence of one to five years. Bell said a second offense is automatically kicked up to a Class C felony with a sentence of five to 10 but can be enhanced with a PFO charge which could produce a Class B felony sentence of 10 to 20 years – at $19,000 a year in a state facility.

“We’ve got to find a way to get more bang for our buck, because people are already paying such a high level of taxes,” Bell said. “We have to do something.”

Trimble agrees drug offenders – or those committing property crimes to support their drug use – are the biggest part of his docket. But rehabilitation is expensive and not widely available in rural areas and there is simply no easy solution, he said.



“We see them over and over and over again,” Trimble said. “The PFO is an effective tool against the offenders who are the most troublesome.”

Gov. Steve Beshear Tuesday told a convention of county officials – whose local budgets are straining under the costs of jails – the state must find a less expensive way to deal with offenders.

“We are spending enormous amounts of money on incarcerating people,” Beshear told reporters later. “We want to be tough on crime, but we also need to be smart on crime. We need to measure the punishment depending on the severity of the crime.”

Beshear said he might support changes in the PFO laws – but he wants to see the specific recommendations first.

“I certainly think that’s an area we need to look at,” Beshear said. “I think even the prosecutors are open to some revision of the PFO laws – depending on what the changes are.”



Ronnie Ellis writes for CNHI News Service and is based in Frankfort, Ky. He may be contacted by email at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.