Ky. state law governing the granting of credit for time served says when credit is given, it “shall be considered for all purposes as time served in prison.”
By James Mayse
Messenger-Inquirer
OWENSBORO, Ky. — For years, Kentucky county judge-executives have considered filing a lawsuit against state government over the issue of the funding that county jails receive to house state inmates. The state pays for some inmates in county jails, but not until after trial and sentencing.
On Nov. 7, the County Judge/Executive Association filed suit in Franklin Circuit Court. The group’s lawsuit asks the court to order state government to compensate jails that hold state inmates before trial who are given credit for time served at sentencing.
Officials involved with the lawsuit said they need additional state funding because jail costs are bleeding county coffers. Meanwhile, a spokeswoman for the state Justice and Public Safety Cabinet said Gov. Steve Beshear is sympathetic to the counties’ plight and is looking for ways to lower the number of people who are incarcerated.
Vince Lang, executive director of the Judge/Executive Association, said judge-executives had hoped the General Assembly would create a legislative solution to the issue in previous sessions.
“You know we wanted to work something out,” Lang said. “We had bills that would have phased in credit for time serve” that didn’t pass.
“We would love to see the administration and the General Assembly make this a priority,” Lang said. “It’s a last resort to go to court.”
The lawsuit, which is supported by 110 of the state’s 120 counties and the state Jailers Association, hinges on differences between the state constitution and laws assigning responsibility for caring for inmates.
The constitution states: “The Commonwealth shall ... provide for all supplies and for the sanitary condition of the convicts.” Kentucky Revised Statute 431.25 mandates the state pay county jails a daily rate for housing state inmates after an inmate has been convicted.
But KRS 441.025 says: “The fiscal court of each county shall provide for the incarceration of prisoners arrested in the county ... by the order of the courts in this county.”
The state law governing the granting of credit for time served says when credit is given, it “shall be considered for all purposes as time served in prison.”
The judge-executives argue the contradictions between the constitution and state law create “an actual controversy between the parties regarding whether the commonwealth should pay for prisoner housing costs for prisoners charged with a felony ... awaiting trial or sentencing ...
” ... Because KRS 531.120(3) states that time in county custody is ‘considered for all purposes’ as time spent in state custody, an inmate’s time in county custody as a state prisoner (awaiting trial or sentencing) should be treated as the state’s financial obligation, and the commonwealth should be required to reimburse the counties for fees incurred for housing such inmates,” the lawsuit says.
The state pays counties $31.34 a day for each state inmate housed in county jails after sentencing. Daviess County Jailer David Osborne said the county loses money by failing to recoup expenses when people held in the jail before trial are given credit for time already served.
“We did estimate what we would have been paid in 2007,” Osborne said. “It was approximately $1 million.”
Osborne said 277 inmates received credit in 2007 for 35,157 days of time served. If the state had paid for those days, Daviess County would have received $1.1 million.
So far this year, 152 inmates have received credit for 16,576 days served in jail before sentencing, Osborne said. If the county had been paid for that time, the county would have received about $519,000.
“I think almost everybody gets credit for time served,” Osborne said. “Clearly, it’s a majority.”
The 110 counties involved in the lawsuit are also helping pay legal fees. The Kentucky Jailers Association’s board of directors voted unanimously to support the lawsuit but is not providing any funding for the suit.
Marshall Long, executive director of the jailers association, said the issue of “time served” is severe.
“Counties can’t keep paying $130 million to $140 million a year” in jail costs, Long said. “It’s going to break some counties without reimbursement.”
With state government facing a revenue shortfall for fiscal year 2008-09 that’s estimated to be at least $300 million, Long said he is unsure what would happen if the judge-executives won the lawsuit.
“The bad part is, there is no money,” Long said. “They may win the suit and not get any money.”
Lang said he understands the state’s financial problem, but he said the counties need to a resolution to the issue.
“We realize the state has priorities (such as) Medicare, Medicaid” and public education, Lang said. “We know the issue can’t be considered by everybody as a top priority.
“This is so important to us, but I don’t know where they rate it on the list” of other state issues, Lang said. “It’s really about the only local government issue that’s out there.”
Jennifer Brislin, communications director for the Justice and Public Safety Cabinet, said the Beshear administration is working to lower the numbers of people waiting in jails for trial.
“It’s not that the administration is unsympathetic,” Brislin said. “The governor ... certainly understands the hardships it places on (county) budgets.”
But jail funding is just one of the many financial obligations facing state government, Brislin said.
“From the department (of corrections’) standpoint, our obligation is to house these inmates and make sure they’re secure” and in a clean and humane environment, Brislin said. A goal of the corrections system is to provide services so inmates can lead normal lives after release, she said.
The goal “is not necessarily to make county jails a profitable business,” Brislin said. “Again, I don’t say that intending (to imply) we don’t appreciate the situation. The governor does appreciate the situation.”
Beshear is interested in making changes that would keep people out of jail -- such as a uniform bond schedule so people can bail out of jail and more drug court substance abuse treatment, Brislin said.
“We think up to 85 percent of people who come into the system, if substance abuse is not the primary offense, it’s a secondary offense,” Brislin said.
Lowering the number of people in state jails would help alleviate the counties’ problem, Brislin said.
Lang said in 2006, the Legislative Research Commission estimated the state’s annual cost of paying county jails for inmates who receive credit for time served would be from $40 million to $45 million.
“I don’t want to see ... any county go bankrupt because they couldn’t pay their jail (costs) any longer,” Lang said.
Inmate medical costs can be particularly expensive, Lang said.
“I’ve heard one or two judges say, ‘We’re one heart attack away from bankruptcy,’ ” Lang said.
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