Published: August 27, 2008 03:52 pm            

Judge extends order halting prisoner release

Plans to issue ruling 'expeditiously'

SOMERSET — A circuit judge in south central Kentucky continued his restraining order halting release of state prisoners earlier than they otherwise would be, a policy enacted by the legislature through the state budget to reduce costs.

Judge David A. Tapp of the 28th Circuit which covers Lincoln, Pulaski and Rockcastle counties, said Wednesday he would rule “as expeditiously as I can” on a request by Commonwealth’s Attorney Eddy Montgomery for an injunction against the release of such felons statewide.

But the attorney for the state Department of Corrections, Wesley Duke, said the case is likely to continue through the court system, either to Franklin Circuit Court where questions concerning state government are often heard or to the appellate courts.

Montgomery argued Wednesday that the injunction is needed now or DOC will have released all eligible prisoners before the controversy is resolved. And he wants the injunction broadened to cover the entire state.

“If we don’t stop it now, it's going to be moot,” Montgomery said. “It’s clearly a contradiction of public safety.”

At issue is a measure the legislature inserted into the budget which allows felons to be released after serving their minimum sentence, including time for good behavior and credit for time on parole – even if the parole occurred under sentence for previous crimes other than the one for which the inmate is incarcerated now. So far, about just more than 1,000 inmates and a similar number of felons on parole have completed their minimum sentences and have been released.

Montgomery objects to the policy on several grounds. He thinks applying the policy retroactively (giving credit for parole served on previous sentences) is unconstitutional and he thinks it endangers public safety by allowing inmates to be released earlier than they otherwise would have been. He also objects to inserting such policy into the budget. Montgomery said DOC argued against retroactive application of the parole credit when a similar measure was passed in 2003.

Duke cited Judge Tapp’s opening statements that the burden of proof lay with Montgomery and the standard for issuing a restraining order is “immediate and irreparable harm.” But, Duke argued, all the potential problems cited by Montgomery are “speculative” and don’t rise to the level of immediate and irreparable harm.

DOC Commissioner Ladonna Thompson, questioned by Montgomery, testified she made the decision to apply the policy retroactively, after consulting with counsel, the Justice Cabinet and members of the Legislative Research Commission. She conceded national statistics indicate from 33 percent to 40 percent of felons commit additional felony crimes after they are released from prison.

Montgomery contended those data refute Duke’s argument the potential harm is only speculative. Duke argued that is still speculative, because no one can say which inmate may or may not commit an additional crime.

“He is basing everything on speculative acts,” Duke said, “and that does not rise to the standard of issuing a temporary injunction.”

Tapp questioned Duke closely on what would satisfy that standard and referred to a felon released with parole credit time who subsequently crashed a car into a private home and asked Duke if the recidivism rate wasn’t more than speculative.

Duke said DOC is simply following the law as passed by the General Assembly.

“We are implementing the law the way the General Assembly intended it to be implemented and we feel very strongly we are following their intentions,” Duke said. He pointed out that Thompson has twice appeared before the Interim Joint Committee on Judiciary and none of the lawmakers questioned Thompson’s implementation.

Duke said the case likely will ultimately include questions of whether the correct defendant should be the legislature rather than DOC and questions of separation of powers between the three branches of government.

“I think their complaint is with the legislature. They passed House Bill 406,” Duke said, referring to the bill number of the budget. He said the case is “very likely” to produce questions about separation of powers as well.

“This case proposes a lot of interesting questions of law. It’s like the kitchen sink,” he said.

There are more than 21,000 state inmates, 8,000 of them in county jails, and the corrections budget is now $434 million compared to $7 million 30 years ago. Counties are complaining about jail costs and lawmakers are searching for money to fund schools and other services even as corrections costs soar.

Near the end of the 2008 General Assembly, the measures to allow earlier release were inserted into the budget at the last moment and since that time DOC has moved quickly to reduce the inmate population. Several studies suggest Kentucky is incarcerating more and more people for relatively minor crimes and who pose little public risk.

Thompson estimates savings of $12.5 million through next year from the earlier release of inmates, an amount she and Duke termed substantial, but which Montgomery said was insignificant, amounting to only about 1 percent of the state’s $19 billion budget.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. He can be reached by e-mail at rellis@cnhi.com.

        

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