Immediate Attention Needed in Corrections to Avoid Another Consent Decree

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By John Rees

Published: 11/07/2016

This white paper/editorial compares the state of corrections in Kentucky in 1979 to the state of corrections in Kentucky today, 2016. During this 46-year period a great deal has changed in Kentucky corrections, much of it for the good. For instance, facilities have improved both at the state and local levels, massive improvements in programing and substance abuse treatment, medical services, accreditation, improved jail standards among others. Despite this, I believe that there are a growing number of similarities between the state of corrections and jails in 1980’s when I became Warden at Kentucky State Reformatory and today. This paper will outline what I see as the similarities, differences, and what the Commonwealth is facing if it is unable to address its critical overcrowding in jails across the state.

Currently, the state facilities are all operating at or near 100% of the designed capacity. This is good from their perspective but very problematic from the jails and overall public safety perspective. There are currently 30 of the 76 full-service jails operating at or near 150% occupancy; 6 of these at or near 200%, and 2 over 250% of authorized capacity. This is at best dangerous and at worst unconstitutional.

Short term the Department of Corrections is re-opening three previously closed private facilities. This will provide an additional 2330 beds. 985 of these beds will be taken by offenders removed from Kentucky State Reformatory. This will drastically reduce the number of staff needed at KSR (currently operating with a 57 % staff vacancy rate, a situation that exists at all facilities in the Oldham and Shelby metropolitan area. This is requiring all security staff to work five 12 hour shifts each week. This is dangerous to the staff, inmates and the community.) and allow the demolition of substandard facilities. The remaining 1345 beds will be used to reduce the backlog and overcrowding in the local jails. This will certainly help but not resolve the problem.

Similarities between 1980 and 2016

The crowding problem initially was at the state facilities but when the federal court put capacity limits in place the jails took on the burden. It didn’t take long for the counties to sue the state to require the removal of prisoners in a timely manner and payment of a per-diem for housing state prisoners. The courts put a 45-day requirement on movement of sentenced ready felons. Recently there were 174 state prisoners beyond the 45-day requirement at the Jefferson County jail alone, well over 1900 state wide. Therefore, a long term solution of this issue will be required if another period of Consent Decree management is to be avoided.

In the eighties, the legislature authorized monies for physical plant improvement throughout the system as well as additional facilities for the Department of Corrections. They also realized that to avoid a similar situation in local jails across the Commonwealth there was a need to build additional and replacement facilities that met current standards. This led to numerous new and improved facilities. Counties began being paid per-diems and soon saw the jail as a revenue stream rather than a detriment. This has led to a growing reliance on local facilities for felon housing. The Jailers and Fiscal Court members have become a powerful constituency in the legislative battle over where to house offenders. The evolution of the jail situation over the last thirty plus years has both its good points and its negative ones. As the current overcrowding issue is addressed the legislature should allow more authority to the Kentucky Department of Corrections to incentivize positive professional operations and hold accountable those jails operating merely as human warehouses.

Today there are three categories of Kentucky jails in my opinion; big urban jails, Jefferson, Fayette, Kenton counties for example; good jails that have embraced positive evidence based programing, Marion, Crittenden, Hardin, and Henderson to name a few; and jails that are not operating at an acceptable level, Grant, Fulton, Madison and Perry are examples of this final category. They are nothing more than human warehouses.

I was hired as Warden, at the Kentucky State Reformatory in December 1980. It and Kentucky State Penitentiary were operating under a consent decree which outlined population limits, new and additional staffing levels, raises for correctional officers, required programing and massive physical plant improvements at both the reformatory and the penitentiary. This decree placed an absolute limit on the population level at both facilities and resulted in a backup of inmates in local jails. This backup led to further litigation between various counties and the state which resulted in an overall plan and requirement to remove offenders from jails after a certain number of days.

As a result, the state legislature authorized a major construction program for both existing and new facilities for the state, but also established a program that would assist local governments in the construction of new and expanded local detention facilities. Additionally, the state began to pay local facilities for state prisoners that they housed in those facilities. This led to a revenue stream between the state and local governments over the years. The local jail in many jurisdictions across the Commonwealth became the primary resource for funding many services within the county. The counties were dependent upon this revenue gained from housing state felons and county prisoners from counties that had closed their jails.

Also, laws were modified to require the state to house certain types of offenders in local facilities; and today these laws are seen as a sacred cow by those in power in county governments.

Currently, there are rumblings across the Commonwealth that both the ACLU and the state Public Defenders office are considering filing litigation challenging the constitutionality of the current situation in Jefferson County. If it happens in Jefferson it will go state wide because, though overcrowded, Jefferson (116%) is not nearly as problematic as other jails across the state that are 150% to 250% of capacity. Like the 1980 litigation, this new suit will also include issues other than population and capacities. It will address issues such as equality of access to treatment programs, medical services etc. to all state prisoners regardless of location. This will mean that Class D offenders and others housed at local facilities must have the same access as those housed in state facilities.

The Bevin administration and the legislature, should take the lead and control the changes required to address the population issue and the overall corrections spectrum in Kentucky. If they don’t, I am afraid another period of Consent Decree management will be on the horizon. If this happens it will be costlier, and more convoluted as the plan will be developed by lawyers and academicians with no practical knowledge of the situation or the evidenced based programing that will work to resolving the problems long term.

WHAT SHOULD BE DONE

Develop a plan to break the logjam that currently exists. The new private facilities will be a start but all of the over 3000 inmates currently on controlled intake must be taken into state custody to be fully classified and receive a thorough medical, psychological, needs, and security assessment. Consideration should be given to the operation of a temporary classification center in either the western or eastern part of the state to expedite the elimination of the backlog. All offenders must be afforded this professional assessment and treated at the same manner.
Temporally house additional persons in some state facilities LLCC and Little Sandy are possibilities. This would not be a permanent or long term solution, but would provide some relief to the current situation in so many of jails that are functioning as merely warehouses.
The state leadership should continue its bipartisan effort for additional sentencing reform, and looking for ways to improve the overall effectiveness of programing both in the prisons and jails and the community; Re-entry, drug treatment, and mental health programing must be a critical part of the effort. Governor Bevin’s Criminal Justice Policy Assessment Council is making a positive start and the efforts of the Koch brothers and others such as Pew foundation should also be incorporated.
The legislature should look for ways to reduce the number of individuals sent to prison by raising the felony theft level. (Is $500 what it was twenty years ago? Don’t think so!) Another piece of low hanging fruit would be eliminating felony non-support. I realize that people who do not take care of their children are horrible members of society; they are a burden; but they do not need to be taking up valuable prison space. They are not a threat and cannot contribute to the welfare of their children while in prison. We cannot afford to operate debtor’s prisons in 2016.
The legislature should pass Prison Industry Enhancement (PIE) Certification legislation, which permits the establishment of private industry factories inside Kentucky facilities. The offenders would be paid real wages, receive normal benefits etc. In turn, they would pay something toward their cost of confinement, pay restitution or child support. The latter for those of you who still want to have a debtor’s prison.
Begin to develop more mental health programing in the community to keep these individuals out of jails and prisons. They simply don’t need to be there. However, if there are no services available then the community must look to jails and corrections to address this problem. Passage of Tim’s Law (HB 94 in 2016 Kentucky legislative session) would be a good start. This legislation would permit more treatment options in the community and address the issue of the mentally ill who stop taking their medication.
Give the Kentucky Department of Corrections the authority to establish quality standards for programing as well as the power to withhold housing state prisoners in substandard jails, and the power to incentivize those jails that are providing positive evidenced based programing.

The ideas above are a start but I am sure there are many more that can be developed and implanted to resolve the current crisis and avoid the implementation of management by the federal courts.

Rees is the former commissioner for the Kentucky Department of Corrections and currently provides consulting nationwide through Rees and Associates Correctional Consulting.

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