Kentucky Department of Public Advocacy

DPA Letter to Subcommittee on the Penal Code and Controlled Substances Act

We are grateful that the Subcommittee is working to make our state safer and financially secure.  Decisive steps must be taken to control the costs of an increasing prison population while providing for the safety and protection of our communities and the well-being of the Commonwealth.

The Department of Public Advocacy is eager to be partners in meeting this goal and restructuring the penal code.  As the work in reforming the penal code continues, we recommend building on the substantial work that has already been done.  In 2000, a Penal Code Work Group was established through the Kentucky Criminal Justice Council to propose revisions to Kentucky’s Penal Code.  The Work Group was chaired by Professor Bill Fortune from UK Law School and included prosecutors, judges, defense lawyers, and law professors.  University of Pennsylvania Law Professor Paul Robinson, an expert in Penal Code theory, served as the reporter of the Kentucky Penal Code Revision Project.  In 2003, Professor Robinson and the Work Group issued their Final Report, a 2-volume proposed Kentucky Penal Code and Commentary.  No legislative action has yet been taken on the Work Group’s proposed revisions. That Final Report can be found through the University of Penn Law School website at 

Why Reform is Needed

As the Kentucky Chamber has demonstrated, because of the ever-rising costs of imprisonment, crucial funds and resources are being drawn away from other pressing needs around the Commonwealth. It also is preventing courts, prosecutors, and public defenders from receiving adequate funding to perform effectively their duties within a balanced system.  There are a number of ways to shift the resources used to incarcerate prisoners to lower-cost alternatives that are more effective at reducing recidivism – one of the primary concerns of a majority of Kentuckians – by better addressing the root causes of criminal conduct.

Americans believe that rehabilitation, especially of non-violent offenders, is a more important priority than punishment, according to the National Center for the State Courts Sentencing Attitudes Survey (82 Indiana Law Journal 1319 (2007)).  According to the survey, 8 in 10 adults reject the notion that little can be done to rehabilitate someone who has committed a crime.  Kentucky’s current approach to crime is in stark contrast to what the public really wants.  Rather than emphasizing and supporting alternatives to prison, at least for non-violent offenders, that would help offenders to get necessary treatment for rehabilitation and become self-supporting citizens, the system continues to be built on the presumption that prison is the best solution.   As a result, the funding required for Corrections continues to increase thus threatening other vital programs for the citizens of Kentucky.

Drug offenses are one area where reform is needed and widely supported.  Over 70 percent of Americans favor a policy mandating drug treatment and community service in lieu of a prison sentence for those found guilty of selling small amounts of drugs according to a 2002 poll conducted by Peter D. Hart Research Associates entitled “Changing Public Attitudes.”  75 percent of respondents favored sentencing non-violent offenders to supervised community service or probation rather than imprisonment. This concept is not one that is soft on crime.  Rather, it is an example of being smart against crime.  The changes we are suggesting provide a method of controlling crime instead of allowing crime to control the coffers of the Commonwealth of Kentucky.

What Reforms Make Sense

The Department of Public Advocacy has been actively involved in every effort to develop ideas to reform the Penal Code and sentencing practices in the Commonwealth.  Some minor changes to the Penal Code are widely supported already.  Other more substantial alterations will provide long lasting improvements. The challenges are too vast to believe that significant change will occur by editing a few statutes here and there.  This reform effort should be focused on solving the problems of the system and protecting the citizens of Kentucky. 

Prison should be reserved for violent offenders and those who pose a legitimate threat to public safety.

No one questions that prison is precisely the right answer for some percentage of convicted offenders.  Those violent or threatening offenders, though, are not the majority of prison inmates.  The increasing number of nonviolent offenders who currently wind up in Kentucky prisons should be addressed in a variety of methods, including:

A. Advancing felony mediation options
B. Reducing some Class D felonies to misdemeanors
C. Mandating drug treatment and probation for drug users and first-time small-volume drug sales.
D. Making all first-time drug possession offenses misdemeanors
E. Mandating probation for all first-time non-violent felony offenders
F. Decriminalizing some low level misdemeanors and offenses adequately handled through civil courts (including child support enforcement)
G. Limiting probation and parole revocations to non-technical violations that pose a threat to public order or safety
H. Creating an intensive case management system for persons with mental illness who commit a crime in place of incarceration as outlined by Dvoskin and Steadman, “Using Intensive Case Management to Reduce Violence by Mentally Ill Persons in the Community,” Hospital and Community Psychiatry Vol. 45, No. 7, p. 679 (July 1994)
I. Amend the felony threshold in KRS 530.050 (Flagrant Nonsupport) from $1000 to $3000

Additional Resources and Statutory Authorization Should be Devoted to Programs That Work to Rehabilitate Offenders

Programs already in existence can be reinforced and expanded to meet the needs of the higher number of offenders released into the community.  These programs have demonstrated effectiveness in protecting the public while also holding offenders accountable and meeting their rehabilitation needs, all for far less cost than prison.

A.  Expand Community Corrections into all judicial circuits
B.  Increase funding to local Comprehensive Care Centers
C.  Expand DPA’s social worker program to provide for at least one social worker for every judicial circuit or DPA office
D.  Ensure adequate community treatment facilities so that appropriate offenders can receive treatment without delay

Sentencing for Non-Violent Repeat Offenders should be Reformed

A significant factor in the rapidly increasing prison population is the number of repeat offenders sentenced to enhanced prison sentences.  In Kentucky, a person charged with a Class D felony who has a prior felony faces a minimum of 5 years in prison.  If that person had another felony any time in his/her life, the minimum sentence rises to 10 years for even the most minor of felonies.  In drug cases, possible penalties are even higher because offenses can be enhanced by both a prior drug offense and a prior felony.  As a result, offenders are held in prison for sentences disproportionate to their criminal activity.

A. Eliminate Persistent Felony Offender (PFO) enhancements for non-violent felonies – Subsequent non-violent offenses could be punished with sentences at or near the top of sentencing range.
B. Prohibit double enhancement by both subsequent offender and PFO charges
C. Rewrite PFO statute to eliminate First and Second Degrees, leaving PFO status to apply only to those with two or more prior felonies without any substantial break in criminal activity.  (i.e. a person who commits a crime when he is 18 should not be punished for that when he is 50 if he stayed out of trouble for 20 years after he completed his first sentence.)
D. Repeal 10-year parole eligibility requirement for PFO 1st Degree

Chapter 218A (i.e. Kentucky Drug Laws) should be Rewritten to Reflect Modern Drug Realities

KRS Chapter 218A, the Controlled Substances Act, was originally passed as law in 1972, prior to the current Kentucky Penal Code, KRS Chapters 500 to 534.  Many of its criminal statutes have been added or amended since its creation, but no comprehensive reform has been approved in almost 4 decades.  Almost all of the amendments or additions have resulted in longer sentences for a greater variety of drug activity and the time has come to review the Chapter as a whole to see if it reflects current societal desires for the criminal prosecution of drug activity.  Upon review, many provisions should be changed or removed.

A. Require a minimum measurable amount of a controlled substance exist for a possession charge; residue cases should be prosecuted as possession of drug paraphernalia only.
B. Reduce possession of marijuana to a violation, punishable by fine only
C. Recognize the power of addiction by making any subsequent offender enhancements begin with the third or more conviction, rather than second offense.
D. Limit subsequent offense enhancements to instances where the charged conduct is of the same level as the prior conduct (Under current law, possession of marijuana can enhance possession of cocaine to a Class C felony punishable by 5 to 10 years in prison)
E. Require some consideration in exchange for drugs for a trafficking charge; mere transfer without receiving some form of payment should be punished as possession, not trafficking.
F. Rewrite Trafficking Within 1000 Yards of a School to require some connection to school activities or students; many cities have no location not within 1000 yards of a school.
G. Manufacturing methamphetamine, a Class B felony punishable by 10 to 20 years in prison, should require actual manufacturing, not possessing chemicals with intent to manufacture, which should be attempted manufacturing methamphetamine, a Class C felony.
H. Distinguish low-level sales to support addiction from high volume for-profit trafficking

Enhance re-entry resources and approaches

A. Do not view revocation as the first option for technical violations
B. Create a set of structured alternatives to revocation, and graduated sanctions
C. Develop a partnership between corrections, parole, and community institutions (public housing, employers) to help ex-prisoners become integrated
D. Provide some financial incentives to counties for them to reduce the number of people returned to prison
E. Review the status of the drug felony ban. Federal legislation provides for a lifetime ban on receipt of welfare benefits and food stamps for anyone convicted of a drug felony unless the state has opted out of the ban. Kentucky has modified the ban and provides benefits if the person is participating in treatment.  61 people per month, 732 per year are denied or discontinued food stamps because of a drug or fleeing felony conviction.

Adjust parole eligibility

A. Only intentional crimes resulting in death, serious injury, or substantial sexual contact should have 85% parole eligibility. 
B. Wanton murders, assaults and other non-intentional crimes resulting in death or serious injury and other violent intentional crimes not resulting in death, serious injury, or substantial sexual contact (i.e. first-degree robbery) should be 50% parole eligibility rule rather than 85%.
C. Revoke parole only for a new felony
D. For sexual offenses with sentences less than 10 years, remove requirement that Sexual Offender Treatment Program (SOTP) be completed prior to parole or good time credit.
E. Parole board should have discretion to release sexual offenders to complete SOTP as requirement of parole.
F. Make parole mandatory for non-violent offenders who complete necessary treatment and have a clean institutional record.
G. Provide transitional parole to an expanded Community Corrections option.
H. Provide a means to release very old inmates from custody who have antiquated sentences like life for robbery, using a post-judgment sentence mitigation process analogous to the provision in KRS 446.110.
I. Eliminate 10 year parole eligibility for PFO 1st sentences enhancing Class C felonies

Adjust death penalty

Eliminate death prospectively as a possible punishment for the severely mentally ill.

Bold Action is Needed

The explosion in the Kentucky prison population has been extraordinary and its effect on the Commonwealth’s budget is considerable.  In response, extraordinary action is needed.  The Department of Public Advocacy stands ready to assist in any way possible to bring about the change necessary to reform the penal code, protect the public, and reduce the growing demand of the Correctional system in Kentucky.  We appreciate the leadership and dedication of the Subcommittee in this task and look forward to working with you in this process.


Damon L. Preston           Ed Monahan
Trial Division Director      Public Advocate


Resources and Reports

Cost-Efficient Adjustments of Kentucky’s Persistent Felony Offender and Violent Offender Laws submitted to 2011 Penal Code Task Force by DPA

A new Vera Institute of Justice report on states adopting research-driven reforms to curtail corrections spending: Reallocating Justice Resources: a Review of 2011 State Sentencing Trends


Last Updated 3/6/2012