By James Mayse
Messenger-Inquirer
OWENSBORO, Ky. — The 2011 law that changed the way courts and law enforcement deal with low-level drug offenders and misdemeanor crimes was touted as an effort to curb the state’s prison population and reduce expenses — and thus far, it appears to be working in those areas.
Since House Bill 463 became law, Kentucky’s prison population has decreased by 10 percent — or by about 2,200 inmates — between August and this month, according to information the state Department of Corrections provided to legislators earlier this month. By offering alternatives to incarceration, such as monitored release and probation, the hope is to save the state $440 million in prison costs during a 10-year period.
But not everyone is singing the praises of the changes. Critics say House Bill 463 took away the power of judges and police officers to make decisions on individual drug and misdemeanor cases.
Daviess Circuit Judge Joe Castlen, who has been active in Daviess County’s substance abuse treatment community, says the legislation has hampered his handling of individual drug cases by limiting his ability to put certain drug offenders in jail for a time.
“One of the provisions required immediate release” of people charged with certain drug offenses, Castlen said. The law created a standard of “presumptive probation,” where a person charged with drug possession would be released if the person is considered a low risk for a new offense by pretrial services. Judges can still jail a drug offender
if they have a compelling reason to put the person in jail.
Castlen said he did have a compelling reason — that incarcerating people on drug charges gave them time to get the drugs out of their system, which made them better candidates for substance abuse treatment.
“By (releasing drug offenders), we waste the opportunity to do what I call pre-treatment,” Castlen said. “There’s no better time for a person to think about his situation than when he’s behind bars.
“You need 90 days of being in a controlled environment where you have no access to methamphetamine and alcohol before you begin treatment,” Castlen said. While people released on presumptive probation are placed under conditions — such as enrolling in a substance abuse treatment program — Castlen said people who have not spent some time in jail are, in his experience, more likely to violate their pretrial release.
“They’re not only noncompliant, they’re going to cause others to be noncompliant,” Castlen said.”... We have noncompliance like we’ve never had before.”
Sending a person to a substance abuse treatment facility who still has drugs in his or her system creates a danger to the other people in the facility, Castlen said.
“They wreck havoc,” Castlen said. "... Recovery is very tenuous. You put somebody in a program and they’re supposed to help each other.” A person with drugs still in their system, however, is not ready to focus on recovery, Castlen said.
“They need meth more than they need breath,” Castlen said.
The case for change
Proponents of the sentencing law say the changes are necessary, because too many nonviolent drug offenders were being incarcerated — which is a poor solution when providing substance abuse treatment is a more effective and less expensive option.
They cited statical evidence for the need for some type of reform. The number of people in Kentucky prisons and jails or on probation or parole rose considerably between 1982 and 2007. In 1982, fewer than 25,000 people were in state prisons, jails or on parole, according to statistics from the Pew Center on the States. In 2007, however, the number of people incarcerated or on parole or probation in Kentucky had risen to more than 80,000.
“In 2007 I think it was, the United States of America was incarcerating more people per capita than any place in western civilization — and Kentucky was first” in the U.S., said State Rep. Brent Yonts, a Greenville Democrat and a member of the judiciary committee in the state’s General Assembly.
State Rep. John Tilley, a Hopkinsville Democrat and chairman of the House judiciary committee, was one of the major proponents of House Bill 463. The bill also had the support of Gov. Steve Beshear, House Speaker Greg Stumbo and then-Senate President David Williams.
Tilley said he wants to hear concerns from judges and law enforcement about how the sentencing law can be improved.
“This (was) close to a 200-page bill, and there’s nothing in there that’s fluff,” Tilley said. “The bill itself was one of compromise.
“I welcome the criticism, because we can’t get this right unless we listen” to law enforcement and court officials, Tilley said. While changes have been made to the law, and more will be made in the future, “I hope there’s an understanding that we got a lot right with this bill,” Tilley said.
Daviess County Commonwealth’s Attorney Bruce Kuegel said he has seen some drug offenders released on presumptive probation quickly commit new offenses.
“Even before their cases are disposed of, they’re reoffending,” Kuegel said. An issue with people charged with drug offenses is when to send an offender to jail, Kuegel said.
“How many bites of the apple do you get? Maybe too many now,” Kuegel said. “There ought to be a limit. We’re seeing a lot of recidivism and reoffending, some weeks in excess of 10 (cases). Some weeks it’s less, but if you have 10 people a week (reoffending), that’s a lot of people coming back to court.”
The law also made some misdemeanor crimes nonarrestable offenses. Instead of being arrested, the person is cited to appear in court. Tilley said that provision wasn’t part of the original bill but was added at the request of the Kentucky Association of Counties. The counties were concerned about the cost of housing people in local jails while their cases were being adjudicated, Tilley said.
Counties pay all the cost of housing inmates until an inmate is convicted.
Daviess County Sheriff Keith Cain said a concern law enforcement officials had before the bill was passed was that the provision would strip officers of their discretion on when to make arrests.
“One thing we didn’t foresee is public opinion,” Cain said. “Once upon a time when we would have made an arrest, now we have to cite (to court). We have to explain (to the victim) we can no longer arrest. The public perception has been very negative, and rightly so.
“I know a farmer called in about the theft of scrap material,” Cain said. “It was just a misdemeanor charge ... the officers caught (the offenders), cited them and released them. The farmer was extremely upset.”
The requirement to cite people to court for certain offenses rather than arresting them affects public opinion, Cain said. “I think it erodes the public’s confidence in the judicial system as a whole,” Cain said.
Tilley said citing people to court for “low-level misdemeanors” instead of arresting them has been “one of the great successes” of the law.
“We had 15,000 to 18,000 fewer arrests,” the first year the law was in place, Tilley said. While a concern was people cited to court instead of being arrested would not show up for their court appearance, Tilley said that has not been the case.
“Of the fewer arrests we’ve had, of those who were simply cited, those were actually showing up for court at a slightly greater clip than before,” Tilley said. “The failure to appear rate actually improved.”
Kuegel said the requirement that certain types of drug offenders receive “presumptive probation” takes away the court’s ability to decide which defendants are most likely to succeed in drug treatment.
“We try to utilize diversion when it’s applicable, when it might work” Kuegel said. “But you don’t want to put a person on diversion who is not going to be successful. At some point it stops, and the person has to be incarcerated.”
A goal of the law was to send more drug offenders to treatment rather than to prison. Savings from reduced incarceration costs are to be diverted into substance abuse programs. Some of that has already occurred; the Department of Corrections has increased the number of slots in prison substance abuse treatment programs from 1,430 in 2011 to almost 6,000 this year, according to a press release from House Speaker Greg Stumbo’s office.
But inmates had to be released before additional money was available to increase substance abuse treatment, Tilley said
“Prior to the bill, we didn’t have any treatment options and were committing far too many people who had not committed a violent offense,” Tilley said. “Those were clearly the kind of offenders who were driving the prison population.
“Judges and prosecutors tell us that 80 to 90 percent of all crimes are drug-related,” Tilley said. "... We don’t have the seed money to go out and create 25,000 treatment beds or treatment options.” People had to be diverted away from incarceration “to create the savings to expand the treatment options,” Tilley said.
Tilley said he appreciates the perspective of judges but disagrees with Castlen that jail time would help prepare a person for drug treatment.
“It takes more than a period of detox,” Tilley said. “If we’re going to detox, that shouldn’t be done in a jail.” Tilley said the law still allows for judges to jail drug offenders if the judge believes incarceration is needed.
“Judges have the option of sentencing somebody if they have good cause to do so,” Tilley said “The judge has the right to state that reason on the record.”