Criminal justice reform has long been on the state’s radar, and the state has pursued several avenues over the years.
People incarcerated face major problems when they are released from prison, not the least of which is getting a job. Having a felony record can amount to “economic capital punishment,” if it prevents a person from ever being hired. A person who can’t work because of a felony has few opportunities.
Going back almost a decade, state lawmakers have changed some laws to make them less severe in terms of punishment, while expanding ways defendants in the criminal justice system with substance abuse disorders can get help. State legislators have also made it possible for some people with felony records to have their felony removed entirely. And certain offenders received their voting rights back beginning late last year.
Those changes have been made on a bipartisan basis. Former Gov. Matt Bevin made felony expungement a reality in Kentucky, while current Gov. Andy Beshear restored voting rights to some offenders. Bevin, a Republican, and Beshear, a Democrat, were vehemently opposed to each other when they both ran for governor last year, but both worked to achieve some criminal justice reform.
Kentucky passed what was considered to be a major piece of criminal justice reform in 2011, when lawmakers approved House Bill 463.
The bill was a response to a problem seen by both Republican and Democrat general assembly members, that the state’s incarceration rate was soaring, primarily because of people being sent to prison on drug charges.
At the time the bill was passed, House Bill 463 was expected to save $400 million over 10 years by reducing incarcerations, with the money instead being funneled into substance abuse treatment.
The main idea behind House Bill 463 was to divert people charged with drug and drug-related offenses out of jails and prisons and into treatment.
The law did expand substance abuse treatment, and a lot of people have gotten help, although its overall impact on the state’s incarceration was temporary.
Jeff Berry had been to substance abuse treatment in 2010, but dropped out.
“I wasn’t miserable enough at the time,” Berry said.
Years later, when Berry was facing new charges, Daviess Circuit Judge Joe Castlen placed Berry in the Drug Court program rather than sending him back to jail. As part of Drug Court, Castlen sent Berry to Owensboro Regional Recovery.
“On May 20, 2016, they sent me to ORR, and that was the day my life changed,” Berry said.
It was Berry’s second attempt to get help at ORR.
“I’d wanted to stop for a long time, but I wasn’t putting in the work,” Berry said. But when Castlen sent Berry to Drug Court and treatment, “I was broken, miserable and tired, man. “
Berry, who works at St. Benedict’s Homeless Shelter as a case manager, now assists others in recovery. When Berry was ordered to attend Drug Court rather than go back to jail, he was facing the possibility of an 11-year prison sentence.
“Everybody’s low point is different,” Berry said. “Somebody’s low point is getting a DUI. My low point is when I couldn’t feel anything and I was hurting everybody.”
“ORR taught me how to live, how to be a man, how to work,” Berry said. In addition to ORR, Berry got involved in a 12-step substance abuse program, which made a profound difference in his life, he said.
“It all started with the judge giving me a chance,” Berry said.
House Bill 463 changed some offenses from felonies to misdemeanors and allowed for “presumptive probation” for people charged with certain crimes, so they could be released into treatment instead of incarcerated.
“House Bill 463 changed the way prosecutors and judges looked at drug offenses,” said Daviess Circuit Judge Jay Wethington, a former Commonwealth’s Attorney and Drug Court judge.
Daviess County started Drug Court before the passage of House Bill 463, but the bill was still a major change of mindsets, Wethington said.
“It’s different to get prosecutors to not send someone to prison for trafficking,” Wethington said. “I was in the prosecutor’s office, and we had to come to the realization that there were people who were trafficking, but only to support
their own addiction.”
The law “required all judges to look at (a defendant’s) arrest process, not just the Drug Court judges,” Wethington said. “The other immediate effect is it required the Commonwealth to agree to treatment.
“It required us to … learn about addiction,” Wethington said.
The state’s prison population actually increased after an initial decline when House Bill 463 became law; then the population stabilized and remained at around 23,000 until this year. The state started the year at over 23,000 inmates, but by the end of July had about 20,000 inmates: An effort was made to reduce the prison population because of the COVID-19 coronavirus pandemic.
Damon Preston, head of the state’s Department of Public Advocacy, said House Bill 463 didn’t meet its goal because there was a lack of support statewide.
When asked what the most profound criminal justice reform of the last decade was, Preston said, “House Bill 463 should be the answer, because it was the most sweeping.
“It should have affected more people,” Preston said. But the law “was cut off at the knees by those who wouldn’t implement it ... Law enforcement and prosecutors found a way around it.”
Instead of reducing the prison population, “the same number of people were going to prison, or more,” Preston said.
But House Bill 463 signaled a change in the state’s thinking toward criminal justice. Namely, lawmakers were thinking about substance abuse treatment rather than just incarceration.
The focus of the “war on drugs” was initially on punishment.
“And yet, by the same token, there was absolutely no concern about trying to help people,” said Castlen, a retired circuit judge who was the guiding force behind what became Lighthouse Recovery, an Owensboro substance abuse treatment center.
“I talked to someone who said (people convicted of) possession of cocaine should go to prison and never get out,” Castlen said recently. “That’s a complete misunderstanding ... of the whole purpose of the system.”
The effort to send drug offenders to treatment rather than prison “is probably the most significant event I’ve seen as long as I have been on the bench. I don’t know of anything else that has had such an impact,” Castlen said.
While people with criminal charges stemming from substance abuse disorders in Owensboro are frequently referred to programs such as Lighthouse, Boulware Mission, Friends of Sinners and Owensboro Regional Recovery, the state as a whole is “taking baby steps” on switching from incarceration to treatment.
“I think it’s horrible that we penalize instead of treating people,” Castlen said.
Other attempts at criminal justice reform have not yet panned out. For example, an effort to raise the felony threshold above $500 has been discussed but not approved.
Efforts at making it easier for people with felony records to reenter society have been more successful.
In 2016, Bevin signed a bill into law that allowed people convicted of certain felonies or misdemeanors to have their record expunged. The law allowed only a single class D felony for a non-violent or non-sexual offense to be expunged. Any number of qualifying misdemeanors could be expunged, or a number of qualifying felonies, if the felonies were all committed in a “single incident.”
Bevin signed a second bill, expanding felony expungement and making it easier for a person to qualify for an expungement, in 2019.
“I think expungement is a piece of legislation that had the benefits we thought it would,” Preston said.
Although this year’s legislative session was cut short by the coronavirus pandemic, state lawmakers had time to take action on other reforms. Lawmakers passed and Beshear signed House Bill 327, which allows a judge to expunge a defendant’s criminal history 30 days after the defendant was found not guilty, or after the charges were dismissed.
Beshear also signed House Bill 284 into law this year, which gives credit on a prison sentence to an inmate who earns a GED or completes a substance abuse or life skills program.
While the state has made strides to reform the juvenile justice system, one bill that didn’t make it through the legislative process this year was Senate Bill 87. The bill would have changed the process that transfers a juvenile charged with a crime from juvenile court to adult court.
Currently, juveniles are transferred automatically if certain conditions are met. Senate Bill 87 would have given judges more power to decide whether a juvenile should be transferred, or would be better served by juvenile court.
The state’s reforms of the juvenile justice system have been a success, Preston said.
“It has reduced the number of kids in the system significantly,” Preston said. The reform bill, Senate Bill 200, was passed into law in 2014. Since then, the number of juveniles being referred to court declined by 40%, Preston said.
“Senate Bill 200 has been a success, and should be a model” for reforming the adult justice system, Preston said.
When Beshear was sworn in as governor late last year, one of his first actions was to sign an executive order restoring the voting rights of certain offenders who had either completed their prison sentences or completed probation or parole.
Restoration was automatic. In March, the state Department of Corrections said it has identified 152,000 people with felony records who had their rights restored by the order.
Two major events that occurred after the onset of the pandemic have focused much of the country’s attention on the issue of racial injustice. In Minneapolis, George Floyd, a Black man, was killed by a white Minneapolis police officer after the officer kneeled on Floyd’s neck for nine minutes.
One officer, Derek Chauvin, was charged with murder and manslaughter in Floyd’s death, and three other officers were charged with aiding and abetting murder and manslaughter.
In Louisville, Breonna Taylor, a Black woman, was shot in her home by Louisville police officers mistakenly serving a “no knock” warrant at her home.
Last week, the city of Louisville reached a $12 million settlement with Taylor’s family, which includes the Louisville Metro Police Department enacting reforms on how it serves warrants, and transparency, among others. The state Attorney General’s office is still investigating Taylor’s death to see if charges should be filed against the officers.
Criminal justice reform is again a major topic in Frankfort, with bills pending that would address issues such as “no knock” warrants and the required use of police body cameras. There has been some talk of a special legislative session to address criminal justice reform this year, although nothing has been announced.
Taylor’s and Floyd’s deaths did have an effect locally. Both the Daviess County Sheriff’s Department and the Owensboro Police Department launched reviews of their policies after the incidents.
Daviess County Sheriff Keith Cain said previously that officials found they had no specific policy against chokeholds, and created a policy to ban them.
At OPD, chokeholds have been banned for years. Officials with both agencies said recently they are exploring the option of adding body cameras to officers’ gear, but said body cameras come with significant costs to store and manage camera data.
James Mayse, 270-691-7303, firstname.lastname@example.org, Twitter: @JamesMayse.