Published: October 02, 2008 05:33 pm            

Shepherd delays ruling on early prisoner release

Retroactive application a key question

FRANKFORT — Franklin Circuit Judge Phillip Shepherd declined Thursday to immediately halt the release of inmates given credit for parole time, but he will rule on the request by the attorney general within a week.

Shepherd wants attorneys for the Department of Corrections and Attorney General Jack Conway to file briefs by Monday on Conway’s assertion the provisions are being applied retroactively and differently than in 2003, when the legislature last allowed the practice through the state budget.

Lawmakers this spring inserted language into the budget allowing DOC to give inmates credit for time served previously on parole. Conway contends the provision is applied retroactively without express direction from the legislature. He also contends DOC interprets the language in opposite fashion than it did in 2003.

Kentucky has 21,700 inmates and DOC’s budget has grown to more than $400 million, siphoning off funding for other services. The legislature inserted the language in the budget bill, House Bill 406, allowing the parole credits and early release to reduce populations and costs, and DOC applied it to all prisoners. But when the General Assembly approved a similar measure in 2003, DOC applied it only to prisoners who became eligible for parole during that two-year budget period.

Shepherd questioned Tad Thomas, assistant deputy attorney general, about Conway’s claim the provision is being applied retroactively. Thomas contends DOC cannot apply the language to inmates paroled before passage of HB 406. He also argues the department is wrong to apply the parole credits without distinguishing between violent and non-violent offenders.

“In fact, the language in the budget bill does not make that distinction, either,” Shepherd responded. But, Shepherd said, the case potentially raises a constitutional issue about whether the legislature can enact such policies through the budget. Thomas said the AG’s office is “not raising that issue at this time.”

Thomas argued the early release presents “an immediate and irreparable harm” to potential victims of inmates who are released and commit more crimes. DOC attorney Wesley Duke said that harm is “speculative” because a predictable percentage of all released inmates – those who complete sentences or those paroled early – commit subsequent crimes but the state can’t predict which inmates will commit future crimes or when.

Shepherd asked if Conway’s argument is that early release is bad policy.

“I don’t think I’ve got the power or right to examine all the pros or cons of whether this is bad policy,” Shepherd said. “I do have the power to examine if the actions of the legislature are in conformity with its constitutional obligations.”

Shepherd asked DOC general counsel Brenn Combs why the department interprets the language differently in 2008 than it did in 2003. Combs said discussion of the inmate problem by the legislature this year “all led up to their intent to apply this retroactively.”

Shepherd said he is “restricted to the language they used rather than what they meant.”

Conway’s motion recounts two specific inmates released under the parole credit measure who have subsequently committed crimes and a third who was convicted of murder but was given more than 900 days of parole credit. Combs said the convicted murderer had served all but one year of his original 30-year sentence, but previous parole violations would have kept him in prison were it not for the parole credits.

Eddy Montgomery, commonwealth's attorney for the 28th Circuit, previously won an injunction in Pulaski Circuit Court to halt releases in that circuit which covers Pulaski, Lincoln and Rockcastle counties. Duke will argue at a 10 a.m. hearing Friday before Pulaski Circuit Judge David Tapp to transfer the matter to Franklin Circuit Court.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. He can be reached by e-mail at rellis@cnhi.com.

        

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