By James Mayse
Messenger-Inquirer
OWENSBORO, Ky. — In 2011, state legislators passed House Bill 463, which changed the way the courts dealt with low-level drug offenders. The bill was crafted after a task force, which included legislators, the head of the state Justice and Public Safety Cabinet and representatives from the Pew Center on the States’ Public Safety Performance Project, studied the state’s rising prison population.
The task force’s goal was to find ways to stem the tide of people being sentenced to Kentucky prisons, to reduce state spending on corrections and to funnel more people facing drug charges into substance abuse treatment.
In 1982, fewer than 25,000 people were in state prisons, in jails or on parole, according to statistics from the Pew Center.
In 2007, however, the number of people incarcerated or on parole in Kentucky had risen to more than 80,000. According to information provided by the state Department of Public Advocacy, the incarceration rate increased 281 percent in Kentucky between 1985 and 2012, even while the overall crime rate and the violent crime rate declined.
Most of Kentucky’s 21,623 incarcerated inmates, as of June 2014, were in prison for nonviolent crimes. State Department of Corrections statistics say about 14,000 inmates were incarcerated for either Class C or Class D felonies, with only about 1,200 of those involving a violent crime, or violence and a history of being a repeat felony offender.
Some officials and legislators say HB 463 has been a success in the three years since it was signed into law, and, if anything, the bill didn’t go far enough. But other officials say they have seen problems with some facets of the bill. In particular, some Daviess County officials say the bill has led to an increase in criminal cases as drug offenders who are released before trial commit new drug offenses.
“The objective was to be not only tough
on crime, but smart on crime, and I think we’ve made some strides,” said Rep. Tommy Thompson, a Philpot Democrat and a member of the Democratic leadership in the state House of Representatives. “Most people I have talked to, and it’s not a huge audience, feel the core of House Bill 463 is working well.”
The hope was that House Bill 463 would save the state $400 million in incarceration costs over a 10-year period by reducing the number of people sent to prison on drug charges. The savings are to be allocated to substance abuse treatment programs.
The bill also aimed to reduce the cost that counties pay to house inmates awaiting trial by creating more alternatives to incarceration. The bill created “presumptive probation,” which means a nonviolent drug offender who is judged to be a low-risk for a new offense should be released into treatment prior to trial, unless the judge has a compelling reason to jail the defendant.
Ed Monahan, public advocate for the state Department of Public Advocacy, said HB 463 has been “an unqualified success.”
“The treatment options have increased, the presumption of treatment has increased and there are more people getting treated,” Monahan said. The idea behind the bill was that drug offenders who receive treatment are more likely to not re-offend than people who are simply incarcerated for a time and released.
“House Bill 463 is exactly what taxpayers want, because it’s spending taxpayers’ money in a smart way,” Monahan said. If anything, more savings could be achieved if the law were modified so more people qualify for jail alternatives, and more low-risk, parole-eligible inmates were paroled.
“It wouldn’t take many more adjustments to get substantially more money for treatment,” Monahan said. “If 100 percent of low-risk people were paroled (by the parole board), it would bring $18 million a year for treatment.”
Substance abuse treatment for people charged and convicted of drug crimes has increased since the bill was passed. According to Department of Corrections statistics, there were 1,590 beds in prison substance abuse programs in 2010, and the DOC had a waiting list of 2,700 inmates for those beds.
Since the passage of the bill, 3,752 new treatment beds have been created, in prisons, jails and in community treatment facilities. Another 1,400 treatment beds have been created through community health care centers, and the DOC’s waiting list has been eliminated, DOC reports say.
Although the number of felony cases filed in state Circuit Courts has remained about the same since HB 463 was passed, there has been a decline in the number of District Court cases filed. Accord to AOC information, in fiscal year 2010, there were 32,148 felony cases filed in state Circuit Courts, while 229,006 misdemeanor cases were filed in District Courts. In fiscal year 2013, 32,068 felony cases were filed in Circuit Courts, while 209,623 misdemeanors were filed.
While new felony cases are about static statewide, Daviess Circuit Judge Joe Castlen said he has seen many people who are granted pretrial release quickly commit new offenses.
“We were doing in Daviess County what the House bill intended to be done,” that is, sending drug offenders into treatment programs, Castlen said. “We’ve been doing it for 10 years or more. It’s nothing new to us, except for the (pretrial) release portion.
“The result has not been any more people going to drug rehab in Daviess County, because we were ahead of the curve” in having treatment programs where drug offenders could be sent, Castlen said. “The result has been far more incidents of noncompliance.”
Castlen said, prior to HB 463, his practice was to send a person on drug charges to jail for 90 days, which gave the offender a chance to get some of the drugs out of his or her system, and to “have them think a little bit.” That’s not an option now, with the presumption that drug offenders be granted pretrial release.
“Now, you send them” directly to treatment, Castlen said. “Not only are they noncompliant, they wreck havoc with others” in the treatment programs, he said.
Castlen said the bill presumes all drug offenders need substance abuse treatment. While the majority do need treatment, some do not, but they still receive presumptive probation, Castlen said.
“They say, ‘463 says you have to let me out right now ... (but) I don’t need drug rehab,’ ” Castlen said. “We get that side of it, too. A lot of people who deal in cocaine are not addicted to cocaine. It’s a business.”
Daviess Circuit Judge Jay Wethington said he sometimes has to look for a way to put a drug offender into treatment after that person takes a plea agreement in exchange for a light sentence.
“I know the parole board is going to let this guy out as soon as they can, (but) I know this guy needs treatment, because I have his drug history, and because of my experience with Drug Court,” Wethington said. “I will probate their sentence and give them an alternate sentence of 12 months” in jail, where the defendant can attend the substance abuse program, Wethington said.
Incarceration can positively affect drug offenders by removing them from the environment where drugs were available, Wethington said.
“The scientists tell us, with methamphetamine, it takes two years separation” to begin recovery, Wethington said. “House Bill 463 works against the addict in that limited circumstance.”
Castlen said to be successful in substance abuse treatment, a person has to make a decision to change.
“A lot of times, that happens in the jail cell,” Castlen said.
Daviess County Commonwealth’s Attorney Bruce Kuegel said his office does sometimes see a defendant on a drug trafficking or possession charge who does not have a substance addiction.
“You are a pusher. You are in it for the money,” Kuegel said of such defendants. “That’s the person that needs to be put in prison The question is: Should (that defendant) qualify (for presumptive probation)? The short answer is ‘no.’ ”
Wethington said presumptive probation is only for certain drug offenders.
“The key word is ‘presumptive,’” Wethington said. “If you have prior drug offenses, you’re not entitled” to presumptive probation.
Kuegel said his office has seen cases where defendants on pretrial release commit new drug offenses or decide to leave a court-ordered substance abuse treatment program.
At that point, “the process starts all over,” he said.
From his perspective, there has been an increase in crime since the bill was passed, he said.
“We’re seeing an increase in the violent crimes, (such as) shootings,” Kuegel said. “Is it drugs? It certainly appears to be in some cases. There are robberies where drugs are probably the reason for the robberies.
“Is there a problem with the law? ... It’s the blanket release,” Kuegel said.
Last week, the state Criminal Justice Council met to discuss how HB 463 has been implemented and to recommend changes to further enhance the bill’s goals. J. Michael Brown, Secretary of the Justice and Public Safety Cabinet, said he will present the council’s findings and recommendations to the General Assembly’s interim committee on judiciary matters next month.
Brown said he was reluctant to discuss recommendations prior to his presentation to legislators, but added, “I think it’s clear, in fact it’s unquestionable, some of the provisions of the house bill have worked in spectacular fashion.”
In particular, Brown pointed to the increase in substance abuse treatment beds available through the Department of Corrections, the elimination of the inmate waiting list for treatment, and the fact that the jail population is 1,000 inmates lower than Pew officials projected it would have been if the bill had not been passed.
“We have a public safety rate of 91 percent,” meaning 91 percent of people assessed low-risk and released on pretrial probation return to court for their next scheduled appearance, Brown said.
Other elements of the bills, such as deferred prosecution, are being implemented but are not in full use. For example, Brown said, only 40 counties statewide use deferred prosecution.
Officials will be gathering data this fall on how successful treatment has been for drug offenders who have gone through treatment programs, Brown said. While some law enforcement agencies have concerns about a provision of the bill that changed some offenses, such as trafficking in marijuana, from arrestable offenses to offenses that the offender is cited to court, “our crime rate hasn’t (suffered) any negative” from HB 463, Brown said
Although more people are being granted pretrial release, there has not been an increase statewide in crime as people on release commit new offenses, Monahan said.
“In most counties, the ‘failure to appear’ and public safety rate have actually improved under House Bill 463,” Monahan said. “Are there people who re-offend? Yes, there are. But when you look at the state as a whole, the (rates) have stayed the same or slightly improved.”
Monahan said the Department of Public Advocacy supports additional legislative action, including requiring the parole board to release more inmates that are evaluated as low-risk and increasing the number of drug defendants on pretrial release. Judges, and the parole board, have leeway to determine if a person should be placed on pretrial release or granted probation.
“No professional in the criminal justice system wants to give up discretion,” Monahan said. “That’s why I’m really working harder to produce data (showing) there are substantial savings” when low-risk offenders are paroled and granted pretrial release.
“Some of the things I’m talking about, there have been bills introduced in the past,” Monahan said. “I’m urging they be reintroduced.”
Thompson, who is majority whip in the state House of Representatives, said he has heard officials recommend additional changes, such as creating incentives to entice drug offenders to enter Drug Court programs rather than other treatment options. Thompson said he has also heard that home incarceration is often not available to indigent drug offenders, and “they have to stay in jail longer” than those who can pay for electronic monitoring at home.
Another concern Thompson has heard is that “bond credits” are not used, so drug offenders who can’t pay bond stay in jail, he said. Thompson said the state is “getting better results” since the passage of HB 463.
“We’ve had a 400 percent increase in drug treatment since House Bill 463,” Thompson said. "... We’ve realized some savings from not having (drug offenders) in jail. Not everybody likes it ... but from my perspective, it has accomplished its objectives and works well.”