Published: October 22, 2008 06:00 pm      

Committee balks at changing PFO, drug laws

Seeking ways to reduce prison costs, populations

FRANKFORT — A committee looking at ways the state can reduce prison populations and costs declined Wednesday to support two key recommendations which are among the most likely to do that.



The subcommittee of the Criminal Justice Council looking at Kentucky’s drug laws declined to recommend changes to Kentucky’s persistent felony offender law or to eliminate sentence enhancements for drug possession offenses. Both are blamed by a University of Kentucky law professor for the exponential increase in Kentucky prison populations.



The subcommittee’s recommendations are made to the Criminal Justice Council which can approve, reject or amend them. Its recommendations will go both to a subcommittee of the General Assembly’s Joint Interim Judiciary Committee and to Gov. Steve Beshear, who charged the council with reviewing the penal code.



Kentucky has more than 21,700 state inmates, and according to the Pew Center for the States, has the fastest incarceration growth rate in the country. More than 7,500 of those inmates are housed in county jails which are ill-equipped to offer substance abuse treatment, education, and health services. The state corrections budget has grown from $7 million in 1970 to $400 million today. Many of them are serving time for non-violent drug offenses.



UK Law Professor Robert Lawson, who has published several scholarly studies of jails and prisons in Kentucky, wrote much of the state’s penal code, including the first PFO statute passed in the mid-1970s. But over time, lawmakers added additional offenses and punishments which Lawson credits with sending more and more non-violent offenders to jail for ever longer sentences.



“The law was written originally for people with long records who had had plenty of time to change,” Lawson recently told another council subcommittee studying sentencing guidelines. “You now have a PFO statute that becomes a routine part of sentencing.”



Last month, he told that subcommittee the changes have effectively transferred power from judges to prosecutors who use the hammer of a PFO conviction to wrest guilty pleas from defendants. Lawson said less than 4 percent of defendants now go to trial compared with 20 percent a couple of decades ago.



The law’s appeal to prosecutors might help explain the committee’s vote Wednesday. Of the eight members, two are prosecutors, one is a former prosecutor and two law enforcement officials. All voted against the change in the two laws.



But one, Warren County Commonwealth Attorney Chris Cohron, said he does not use the PFO law that way and only a small number of inmates are serving time on PFO convictions – less than 4,000. He didn’t dispute many others pleaded guilty to lesser sentences to avoid the threat of a PFO charge and longer sentence.



“If I think a PFO charge is appropriate, I charge them with a PFO. I don’t use it as a hammer,” said Cohron, a member of both the subcommittee and the Criminal Justice Council and president of the Commonwealth Attorneys Association. He conceded some other Commonwealth Attorneys might use it as leverage in plea bargains.



Judge Gregory Bartlett chairs the subcommittee and is Vice Regional Circuit Judge from Kenton County. He voted to change the PFO law and do away with enhancements for simple drug possession. He said some prosecutors do in fact use the PFO laws to extract pleas from defendants and avoid trial.



The committee made several other recommendations, including some for expanded drug treatment programs, diversion and expungement for those who successfully complete them, and re-writing the law about trafficking in drugs within a 1,000 yards of a school to apply only to those attempting to sell drugs to minors.



RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com.