Lawmakers Considering Penal Code Revisions

by Rick Howlett on October 21, 2008

A burgeoning prison population, and the human and financial costs associated with it has Kentucky lawmakers considering a major overhaul of the state’s Penal Code. Kentucky Public Radio’s Tony McVeigh has the story.

Kentucky’s prison population is exploding. In 1974, when the first major rewrite of the state’s Penal Code occurred, the state had around three thousand prisoners. Thirty-four years later, there are almost 22,000 inmates. And retired Kentucky Supreme Court Chief Justice John Palmore (pictured) says 7,500 of them are housed in county jails.

“So far as I’m concerned, that violates the Constitution,” Palmore said. Now I know that back in 1988, the Supreme Court said if you can’t do anything else with them, you can put them in the county jails. But I don’t think the Supreme Court’s got any more right to violate the constitution than you and I have.”

Palmore says it’s an untenable situation and the state can’t just keep throwing money at it. He says the last prison built by the state, which houses less than one thousand inmates, cost about $10 million. And even with a $435 million budget, the Corrections Department is scratching to make ends meet. He believes “haphazard amendments” to the Penal Code, resulting in longer sentences, are a major part of the problem.

University of Kentucky Law School Professor Robert Lawson, who’s an expert on Kentucky’s Penal Code and its sentencing guidelines, agrees. “I think we’ve lost an appreciation for the harshness of locking people up. We lock up more people than anybody on earth,” he said.

Lawson and Palmore, who helped rewrite the Penal Code in the mid-1970’s, are volunteering their services again. Lawson says sections of the Code defining the general principles of criminal law are fine. It’s the sentencing provisions that give him pause, especially the two-strike provision for drug offenses. “Drug offenders are notorious repeat offenders. And so, practically all of them are going to come up to that two-strike level,” he said.

And that means they face longer sentences, even if their first offense was a misdemeanor. Lawson says the longer sentences aren’t working.

He says the state’s drug problem in the last 35 years hasn’t gotten better, “it’s gotten worse.”

Among those who believe Lawson’s on the right track is Justice Secretary Michael Brown. “Our issue has got to be, how do we deal with these drug offenders. And are we going after the ones that are really the beneficiaries of a criminal enterprise. Or are they ones who are much more on the addict side, who would benefit from treatment,” Brown said.

Similar efforts to rewrite the Penal Code in 2003 and 2006 went nowhere. The reports sit on library shelves gathering dust. But Louisville Senator Gerald Neal thinks this third effort may be the charm. “Clearly, there needs to be an overhaul, from my perspective,” Neal said. Can we do it in the time frame that’s been allotted to us? No.”

Neal co-chairs a legislative subcommittee facing a December deadline for recommendations. He believes the deadline should be extended. “There has to be an educational process on both sides, the leadership side and the public side. And we have to come to some understanding of what works and what doesn’t work,” he said.

Studying the state’s current prison population is the best place to start, says Warren County Commonwealth’s Attorney Christopher Cohron. “Let’s really study who’s in the there and how they got there. I think that will tell you volumes,” Cohron said.

Studying what other states have done would be wise, too, says Rep. Greg Stumbo of Prestonsburg. Stumbo says there’s no reason to “reinvent the wheel” when states like Alabama and Texas have undertaken similar Penal Code revisions, for the same expensive reason Kentucky’s considering it – prison overcrowding.

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