With all the issues dividing the nation today, one topic actually seems to unite politicians on both the left and right: the need for criminal justice reform. The concerns range from too many people being incarcerated for low-level, nonviolent offenses, to the high costs of maintaining such a large correctional system, to racial and economic disparities in who gets punished and the sentences they receive.
KET’s Kentucky Tonight explored criminal justice reforms being debated in Frankfort and Washington, D.C. The guests were Holly Harris, executive director of the Justice Action Network; Kate Miller, advocacy director of the American Civil Liberties Union of Kentucky; David Ward, president of the Kentucky Association of Criminal Defense Lawyers; and John Wright, criminology professor at the University of Cincinnati and policy advisor for the Pegasus Institute.
Why Do We Need Criminal Justice Reform
According to the federal Bureau of Justice Statistics (BJS), 6.6 million Americans were in correctional supervision at the end of 2016. That includes 2.1 million in prison and jails, and 4.5 million on probation and parole. The bureau also says the number of adults in the American correctional system has dropped for nine straight years.
Yet the U.S. continues to have one of the highest rates of incarceration of any nation in the world. The BJS says about 1 in every 38 adults is under correctional supervision. Meanwhile, crime has been on the decline in America since the mid-1990s, according to University of Cincinnati criminologist John Wright. He says those factors are helping fuel the push for criminal justice reforms.
“We have the left and the right in agreement but for different reasons,” he says. “The left wants to reduce prison populations, the right doesn’t want to pay for it.”
With about 24,000 Kentuckians in custody in state prisons and local jails , Kentucky has one of the highest incarceration rates of any state in the nation. Late last year, a state council appointed by Gov. Matt Bevin to examine criminal justice policies projected that Kentucky’s inmate population could increase by 19 percent in the next decade . And taxpayers will be stuck with the escalating bill.
“The costs are getting out of hand,” says criminal defense attorney David Ward. ”If you look just at Kentucky, last year’s budget for the Department of Corrections was around $570 million. Next time around it’s going to be over $600 million.”
While many people incarcerated today may be considered low-level, nonviolent offenders, Wright argues that it’s hard to accurately make such a classification. He contends that lawbreakers usually engage in a broad array of criminal activities, and the specific acts they are convicted for may be different than the ones they actually committed.
Regardless of how they’re classified, all criminals should have the opportunity for rehabilitation, says the Justice Action Network’s Holly Harris.
“Ninety-five percent of these individuals, whether they were convicted of a nonviolent offense or a violent offense, are getting out some day,” she says. “We want [them] to return as better citizens, not better criminals.”
But if the ultimate goal is to reduce recidivism and improve public safety, the ACLU’s Kate Miller says jailing someone for a minor offense may be counter-productive. She says that doing so can actually increase the chances that person will engage in more criminal activity in the future by exposing them to more hardened offenders in long-term custody.
“We know that we get better outcomes when we invest in alternatives to incarceration,” Miller says, “and we do everything that we can to maintain the family and the community that that person is a part of.”
Kentucky lawmakers have enacted several criminal justice measures in recent legislative sessions. This year, they tackled gang violence, victims’ rights, and the unique needs of female inmates.
House Bill 169 seeks to crack down on criminal gang activity in the commonwealth by requiring gang members convicted of certain crimes to serve 85 percent of their sentences before being eligible for parole. It also toughen penalties on adults who recruit minors into gangs.
“When gangs really become entrenched, they begin to recruit younger and younger children,” says Wright. “In the 1990s, for example, we saw organized street gangs using 8-, 9-, 10-year old kids to engage in very violent behavior because they knew they wouldn’t pay the price for this.”
The ACLU, the Kentucky Association of Criminal Defense Lawyers, and other groups opposed HB 169, saying the legislation uses overly broad definitions for gangs and gang membership. It also levies mandatory minimum sentences for Class B misdemeanors. The fear is the law could be used to incarcerate more black youth.
Miller says Kentucky’s measure is similar to a gang bill passed in Mississippi. She says proponents there promised the law would not disproportionately impact African Americans. But data shows that it’s blacks, not whites, that have been prosecuted by Mississippi for gang-related offenses. Miller says that’s leading some in that state to rethink their gang laws.
“The Mississippi General Assembly decided that there were too many problems and that it was unfair to people of color, so Mississippi stopped,” Miller says. “Kentucky pushed ahead with the understanding of what was happening in Mississippi.”
Senate Bill 3, known as Marsy’s Law, proposes an amendment to the Kentucky Constitution that will create a crime victims’ bill of rights. Those rights include notice of any proceedings related to their case and the right to be present at those proceedings, reasonable protection from the accused, and the right to full restitution paid by the convicted party.
Ward says he expects Kentucky voters to overwhelmingly approve the amendment when they go to the polls this November. But he says the amendment is unnecessary because states already have laws granting such rights to crime victims. He also fears the unintended consequences of having attorneys representing victims present in court.
“If the goal is a more speedy administration of justice, can you imagine the impact of increasing the number of lawyers involved on the case by 50 percent at every stage of the proceeding?” Ward says.
Although the Justice Action Network did not take a position on Marsy’s Law, Harris says the measure has the support of sexual assault prevention and domestic violence prevention groups.
“Supporting Marsy’s Law and supporting the rights of victims is not inconsistent with also supporting criminal justice reform,” says Harris.
Another corrections reform measure passed in Kentucky this year will improve jail conditions for female inmates. Senate Bill 133 provides greater opportunities for mothers and expectant mothers with a substance abuse problem to get treatment rather than go to jail for minor offenses. It also bans the shackling of pregnant inmates before, during, and immediately after childbirth.
Some lawmakers did question the need for such a bill during committee testimony. Harris says it’s unbelievable that anyone would oppose a measure that helps pregnant women become better mothers. She says a quarter of the women incarcerated in Kentucky are either pregnant or have a child younger than one year of age.
Wright says these kinds of reforms deserve to enacted by a civil society even if they don’t result in lower crime rates and less recidivism.
Looking to the Future
Reform advocates have several areas they want lawmakers will address in the 2019 General Assembly session. Miller says she hopes legislators will revisit the state’s expungement law to make it easier for more Kentuckians who have certain felony convictions to have their records cleared and their voting rights restored.
The General Assembly enacted a felony expungement law in 2016, but since then only 1,200 people have been granted an expungement, according to Miller. She attributes that to a high filing fee, a five-year waiting period before a felon can apply, and a limited number of Class D felonies that are eligible for expungement.
Miller also hopes that lawmakers will increase opportunities for offenders with a substance abuse problem to get help with their addiction.
“People don’t have meaningful access to treatment at the front end,” Miller says. “I have talked to a number of folks over the last year who are in long-term recovery, who have been in and out of the justice system for years, who did not have real access to treatment until the end of their sentence.”
Even with increased emphasis on fighting the opioid crisis, Ward says it’s still difficult to get his clients who have an addiction into a treatment program. The problem, he says, is inadequate funding.
“There’s a saying that is, ‘Don’t tell me what your priorities are, show me your budget,’” says Ward. “When you look at the budget in Kentucky and determine how much is being allocated for beds and available treatment, it’s simply not sufficient. That is not a priority as expressed by the legislature through the budget.”
Harris says she’s heard discussion of an “absolutely revolutionary” idea to convert some prisons into healing centers that would treat the core issues that brought an offender into the criminal justice system in the first place.
She also advocates for overhauling the bail system, which critics say needlessly detains poor people.
“There are roughly 37,000 individuals in Kentucky who have been accused of – not convicted of – low-level, nonviolent crimes,” says Harris. “[They] sit behind bars for an average of 107 days… at a cost to the Kentucky taxpayers of about $130 million a year for one reason and one reason only: because they can’t pay their bail.”
One possibility is to eliminate money bail for low-level, nonviolent offenders and replace it with what’s called “own recognizance release.” Harris, Miller and Ward say that data shows that failures to appear in court have actually decreased in jurisdictions that use a no-money bail system. But Wright opposes ending cash bail as a means of ensuring that people appear for their court dates.
“I do favor bail reform, it is something that we should look at,” Wright says. “On the other hand, I think people still have to have skin in the game.”
Late last month, the U.S. House of Representatives passed the First Step Act with broad bipartisan support. The measure, which has been championed by President Donald Trump’s son-in-law Jared Kushner, would provide funding for prison programs in education, drug treatment, and job training. It also provides early release incentives for inmates who complete those programs, calls for prisoners to be housed closer to their families, and prohibits the shackling of female inmates.
Wright says too often such reform measures are built on questionable data and political whims, which he says leads to policies that either have no impact or may have negative consequences.
Harris says the legislation is data-driven and matches the most successful reforms implemented locally across the country. She says the 10 states that have most significantly reduced incarceration rates have seen their crime rates drop an average of 19 percent, while the 10 states have enacted the toughest jail sentences have seen their crime rates drop only 11 percent.
The House passed the First Step Act on a 360-59 vote, but it’s expected to have a tougher time in the U.S. Senate. Some opponents argue the bill goes too far, while others contend it doesn’t do enough, especially on sentencing reforms. But Harris says she thinks senators will work out a deal to approve the legislation and get it to the president’s desk by the end of the year.