Safer Kentucky Act would add thousands of state inmates. Is there room for them?

In our Reality Check stories, Herald-Leader journalists dig deeper into questions over facts, consequences and accountability. Read more. Story idea? hlcityregion@herald-leader.com.

Kentucky lawmakers are ready to pass a huge crime bill, the Safer Kentucky Act, and incarcerate more people who would spend more years behind bars.

According to an estimate from the Council of State Governments Justice Center in New York, over the next decade, House Bill 5 could fill an additional 3,500 beds in state prisons and local jails. And that’s just covering two of the bill’s many sections, on additional violent felony offenses and tougher penalties for fleeing police.

Here’s an important question for taxpayers, residents and even the politicians supporting the measure: Does Kentucky have enough space in lockup to handle what’s coming?

No, says Ray Sabbatine, a retired jail consultant in Lexington and former director of the Fayette County Detention Center.

State corrections records show that a majority of Kentucky’s 77 local and regional jails already are overcrowded. Its 14 state prisons are nearly full.

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More than 32,000 Kentuckians are locked in jails and state prisons right now, more than the population of Frankfort, the capital city. (Separately, five federal prisons located in Kentucky hold about 6,500 inmates, but most of them are from elsewhere.) Kentucky long has had one of the nation’s highest incarceration rates.

“The beds are gone, basically. They don’t exist,” Sabbatine said.

“My guess is they’re either going to have to look to privatization, which the Republicans love to do, or else the crowding will get so bad, the judiciary will have to step in and order some people released,” Sabbatine said.

“But they’re shooting in the dark,” he said. “They’re writing these bills and they have no idea what they’re going to need or what they’re going to get.”

The crime bill’s House Republican sponsors did not respond this week to Herald-Leader requests for comment.

More inmates than beds

At present, 61 percent of Kentucky’s jails are overcrowded, a situation that is aggravated by nearly 5,000 state prisoners housed in these cramped local facilities not meant to hold people for years. Jails are paid a daily rate for holding state prisoners as they serve state time.

The Boyd County Detention Center in Catlettsburg, for example, has 206 beds and 291 inmates. Thirty-six of them are state inmates serving state time at the jail. Twenty of them are “controlled intake” state inmates waiting to be collected and driven to a state prison, having been sentenced at the county courthouse.

Controversially, Kentucky uses jails to hold lower-level Class D and Class C felons serving their state time. That relieves the strain on prisons. But in jails, which have little to no rehabilitation and education programs, inmates often sleep next to each other on floors, crammed into any available space when there are not enough beds.

The Kentucky Jailers Association is suing the state Department of Corrections in Franklin Circuit Court over the expense and hazards of overcrowding by state prisoners.

In their suit, jailers say that even high-level Class A and Class B felons can languish in a jail cell for more than 200 days after their sentencing as they await transfer to prison, far beyond the 45-day deadline set by law. State corrections officials admit the systemic failures in apologetic emails that jailers have included in their filings.

And jails might not have the flexibility to grow for a while, even if the sweeping crime bill passes.

Apart from the Safer Kentucky Act, lawmakers this session are advancing House Bill 12, to prohibit jails from new construction or expansion for the next five years without approval of the legislature.

That bill’s sponsor, House Speaker Pro Tem David Meade, R-Stanford, says counties are struggling to pay for newer and bigger jails that failed to cover their costs by housing state prisoners, so the state should start providing better oversight.

None of the state’s prisons are overcrowded, but most are close to full. Eastern Kentucky Correctional Complex in Morgan County this week reports 64 empty beds out of 1,914. Northpoint Training Center in Boyle County reports 23 empty beds out of 1,270.

The state budget bill currently being negotiated holds $29 million for design of a new state prison in Eastern Kentucky, but construction would be years away. Little Sandy Correctional Complex in Elliott County is being expanded, but that’s intended to handle a transfer of inmates from the aging Kentucky State Reformatory.

As Sabbatine said, privatization might be an option.

Private prison company CoreCivic, headquartered near Nashville, owns several prisons in Kentucky that it once contracted to the state. In 2013, the Department of Corrections stopped using prisons operated by CoreCivic’s previous incarnation, Corrections Corp. of America, because of allegations of inmate abuse and mistreatment, among other problems.

CoreCivic has a team of seven lobbyists in Frankfort this session to talk with lawmakers about corrections spending and facilities, according to ethics disclosures.

However, CoreCivic spokesman Ryan Gustin told the Herald-Leader this week the company hasn’t lobbied on the crime bill.

‘Gonna be a huge crisis’

The crime bill would fill inmate beds in several different ways.

It would expand the requirement that violent felony offenders serve at least 85 percent of their sentences to cover far more people by adding a new group of offenses, such as first-degree burglary, second-degree robbery, first-degree arson, first-degree strangulation, carjacking and first-degree wanton endangerment. Lower-level felony offenses would be included, too.

What’s the impact of that?

According to the estimate by the Council of State Governments Justice Center, the average Class D felon charged with a violent offense in Kentucky is sentenced to 4.6 years and released after one year. If he must serve 85 percent of his sentence, he wouldn’t be eligible for release until he’s spent at least 3.9 years in a cell.

For Class C felons convicted under this section, the average three-year sentence would stretch to 7.2 years. For Class B felons, the average four-year sentence would become 9.5 years. This would require hundreds of additional inmate beds at a cost of several hundred million dollars, according to the council’s estimate.

Other parts of the crime bill would lengthen sentences for people convicted of dealing in fentanyl or fleeing police.

Homeless people in public places could face a trip to jail for the crime of “unlawful camping.” A first offense would be a violation, which could bring a $250 fine. Future offenses would be a Class B misdemeanor.

And the bill would create a “three strikes and you’re out” requirement for violent felony offenses, sending people to prison for the rest of their lives after a third conviction.

As Kentucky’s prisons fill with people serving longer sentences, many of them growing old and infirm behind bars, jails will face even greater pressure to hold the spillover, said Pam Thomas, an analyst with the Kentucky Center for Economic Policy in Berea and a former state legislative budget aide.

Thomas has repeatedly testified against the crime bill. Her group’s cost estimate for the legislation is more than $1 billion over the next 10 years.

More serious criminal charges will result in higher pre-trial bonds, so fewer defendants will be able to afford release before trial, Thomas said. Instead, they will sit in a jail cell for months before they’re even convicted of anything, she said.

And if local jailers believe it takes too long now for the Department of Corrections to collect state inmates for transfer to prisons, creating a backlog of bodies in their jails, wait until prisons are packed with hundreds of people serving life sentences, she said.

“For the state, the jails are so much cheaper, so that’s going to be the preferred alternative when nothing else is available,” Thomas said. “I think our jails are gonna be a huge crisis.”

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