(video of the hearing is available at Aug 05 Interim Joint Committee on Judiciary Ed Monahan and Damon Preston's testimony begins 75 minutes in)
The state’s Public Advocate is asking state lawmakers to consider limits on who can be considered a persistent felony offender and violent offender in Kentucky.
Kentucky Public Advocate Ed Monahan told the Interim Joint Committee on Judiciary that “modest adjustments” to the state’s persistent felony offenders (PFO) and violent offender laws would result in more prisoners being released at a time when they are least likely to reoffend, save the state millions of dollars, and create a more balanced criminal justice system where the longest sentences are reserved for felons who Monahan described as more of a risk to public safety.
Today, Monahan said, there are 7,792 inmates in Kentucky sentenced as persistent felony offenders, violent offenders or both at a cost to the state of $169 million. Many are offenders who were convicted of the lowest level, often non-violent felonies.
In fact, Monahan said 1,441 Kentucky inmates are serving an average sentence of 11 years for an underlying offense classified as only a Class D felony, the lowest level felony offense under state law.
“One felony is a serious conviction with serious consequences. But if you look at the 7,700 you have a lot down at the Class D range. A question that one might ask is, do you really want to incarcerate those persons for this aggravated length of time at a significant cost to you?” said Monahan.
Many PFOS in Kentucky today are felons who have never served time for a prior offense, said Monahan. That has been the case since 1976 when, Monahan said, the Kentucky General Assembly tightened the state’s PFO statutes by abolishing the requirement that a person be imprisoned on a prior offense before being sentenced as a PFO and lengthened the time a PFO must serve before being eligible for parole, among other changes. Prior PFO statutes required three prior convictions and two separate periods of incarceration before a person could be sentenced as a PFO, he said.
Instead, the Public Advocate and his staff suggested that state lawmakers consider adjusting the PFO and violent offenders statutes in any number of ways, including eliminating PFO sentencing for non-violent felonies, using PFO status for sentencing of those with two or more prior felonies without a substantial break in criminal activity, repealing the required 10-year period before some PFOs are eligible for parole, an requiring actual imprisonment on prior felonies before a person can be sentenced as a PFO.
For violent offenders, Monahan’s office suggested reinstating Kentucky’s pre-1998 requirement that 50 percent of a violent offender’s sentence, rather than the current 85 percent requirement, be served before a violent offender is parole eligible. The office also suggests that violent offenders be limited to those convicted of six specific crimes including murder as well as rape, sodomy, robbery with a firearm, burglary with a firearm and assault—all in the first degree only.
Changing the PFO and violent offenders statutes would also restore sentencing jurisdiction to judges and juries rather than prosecutors, where it resides now because of legislative changes, said Monahan.
Committee Co-Chair Sen. Tom Jensen, R-London, asked Monahan if he believes the state’s PFO statutes from 1974—which Monahan said were more limited—were a better way to go.
“As a public policy measure…when do we say enough is enough for somebody?” said Jensen. “There comes a point where we have to say, I think we have to say, we just can’t tolerate your behavior.”
Monahan said what changes are made to the law is up to the General Assembly, but added that he is providing facts that will help lawmakers decide if they want to change the statutes or not.
Keeping felony offenders in prison for decades have not shown to be effective in all cases because it carries significant costs and, studies show, older inmates are less likely to reoffend, said Monahan. “The adjustments that can be made (would give) the Parole Board a little more discretion with those folks,” he said.
Right now, Monahan said Kentucky’s PFO and violent offender statutes are some of the broadest in the nation.
