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As GOP pushes Safer Kentucky Act, full jails prep for more crowds

The Breckinridge County Detention Center
Breckinridge County Detention Center
The Breckinridge County Detention Center is one of many jails in Kentucky that is overcapacity and holding people in state custody.

The sweeping Republican-backed crime bill could lead to more incarceration, which could bring problems for many Kentucky jails that are already overcrowded with people in state custody.

The Breckinridge County Detention Center in Hardinsburg has space for 191 people, but in mid-February 198 people were incarcerated at the facility in central Kentucky.

More than two-thirds of those people were in state custody. And in most of the country, people incarcerated for state crimes would serve their time in state prisons, not a local jail.

But in Kentucky, more than 40% of people in state custody are held in local jails, according to data maintained by the Kentucky Department of Corrections. Only one state, Louisiana, holds more state prisoners in local jails.

The practice has led to overcrowding in 52% of the 74 local and regional jails that provide data to the Kentucky Department of Corrections. This analysis includes data from more than 40 minimum security units and substance abuse programs across the state, which prison officials say contribute to a jail’s overall capacity. But including those units can dilute the full scope of overcrowding in local jails because they’re often separate from the general prisoner population and the people incarcerated in those facilities can take part in community work programs. When minimum security units are excluded, more than two-thirds of the state’s local jails are over capacity.

The problem could get worse if lawmakers pass House Bill 5, a sweeping criminal justice reform bill titled the Safer Kentucky Act that would increase penalties, lengthen sentences and add more offenses to Kentucky’s violent offender statutes, among other changes. Criminal justice experts and advocates against mass incarceration warn that the legislation would exacerbate overcrowding in local jails by increasing the number of people held pretrial and clogging the pipeline of people waiting to be transferred to a state prison.

For incarcerated people, this could mean longer stays in dangerously overcrowded local jails where they have less access to vital services and programs that can help transition to life on the outside once their sentence ends.

For jails, more people held pretrial would mean less space to hold state inmates, which could spell trouble for county budgets.

The state pays local jails $35 a day for each person they house that’s serving a state prison sentence. People serving class D felonies, which include things like possession of a controlled substance, wanton endangerment or possession of a firearm by a convicted felon, are required to serve out their time in local jails. People serving class C felonies, like trafficking a controlled substance or assault in the second degree, are eligible to serve time in local jails. A smaller number of people are held for the state for violating parole or other reasons. In all, the daily payments added up to nearly $139 million funneled to local jails last year, according to Kentucky Department of Corrections deputy commissioner Lisa Lamb.

For some jailers, like Breckinridge County jailer Tara Shrewsberry, the daily fee is a lifeline — and the reason her jail is overcrowded.

Every Thursday Shrewsberry asks state prison officials for more people to put in her jail. Many come from Jefferson County, she said.

“Our county jail hasn't gotten a penny from our county in two years,” Shrewsberry said. “So the only way that we can support ourselves is by housing state inmates.”

Overcrowded jails have long been an issue in Kentucky. Last year, several local jailers, along with the Kentucky Jailers Association, filed a lawsuit in Franklin County Circuit Court that alleges the Kentucky Department of Corrections is failing to transfer state inmates out of local jails once they’ve been processed after their sentencing.

By law, the Department of Corrections is supposed to process these individuals within 90 days, a time limit that was recently increased from 45 days in the state budget. The lawsuit claims that isn’t happening.

More people, more problems

The Safer Kentucky Act, sponsored by Rep. Jared Bauman, a Republican from Louisville, and 48 other Republican co-sponsors, bolsters punishments for some offenses including establishing a felony carjacking law, bans street camping near businesses or private property, places new restrictions on charitable bail organizations and creates a three strike provision for violent felonies.

Bauman has not responded to requests for comment on this article. From the House floor, he said the law is meant to protect citizens and deter crime and he did not expect the legislation would lead to more people incarcerated.

But Monica Smith, the associate director of policy and advocacy for the New York City-based Vera Institute of Justice, said the nonprofit’s research shows the legislation will lead to more people behind bars.

Overall, Smith said HB 5 amounts to a “really dangerous return to the tough-on-crime policies of the 80’s and 90’s.”

“Those policies really did not have an impact on communities except for to really tear them apart and make them more difficult places to live,” Smith said.

In particular, the Vera Institute’s research suggests the burden of the legislation would fall heaviest on local jails and county budgets by introducing more people into the criminal justice system facing higher charges. This means they will be held pretrial for longer and judges will likely impose higher bail amounts. Local jails are responsible for holding people pretrial at their own expense, without any reimbursement from the state Department of Corrections.

For jails, the influx of people held pretrial, coupled with a deluge of state inmates being left in local jails well beyond required timelines, could lead to a crisis, Smith said.

“Especially in those rural counties who, again, are already feeling the crunch of pretrial detention. That will cause their jail populations to really soar to high numbers,” Smith said, adding that beyond the financial implications, this will lead to overcrowded and unsafe conditions for both the people held in those jails and the staff.

Sen. Whitney Westerfield, a Republican from Fruit Hill who serves as the chairman of the Senate Judiciary Committee, said he requested a fiscal analysis of the legislation and was disappointed when the analysis provided was “relatively useless.”

“I’m pretty disappointed it didn’t go into the math,” Westerfield said. “Because it’s going to be expensive.”

A recent analysis from the nonprofit Kentucky Center for Economic Policy estimates the legislation could cost more than $1 billion over a decade.

The report also found the added costs will create more incentive for state prisons to keep people incarcerated in local jails, where the cost of incarceration is cheaper. The financial boon local jails get from housing state inmates is a problem that stands in the way of measures to decrease the amount of people locked up in Kentucky, said Ashley Spalding, research director for the Kentucky Center for Economic Policy.

Policies that lead local counties to be reliant on proceeds from mass incarceration create a “perverse incentive to become overcrowded,” Spalding said.

Dead time

This practice of holding people serving extended state sentences in local jails has more than just financial implications. Most jails are not meant to hold people long term. They lack services and programs people need to complete in order to be eligible for release.

In the correctional system, time spent in local jails is often referred to as “dead time,” meaning time when incarcerated people can’t work towards their release.

Jails are less suited to provide for the medical needs of many people — like someone who needs dialysis treatment on a regular basis, said Monica Smith of the Vera Institute.

“A prison is almost like a very small, insular community. It's almost like a small town,” Smith said. “They could receive that in a prison far easier than they could in a local jail.”

Campbell County jailer Jim Daley agrees that jail is not the best place for people serving long sentences.

“I've always been told when I did ask [incarcerated people] that jail is pretty much the hardest time that they have because they don't have the freedoms here, they don't have programs here,” Daley said. “And if they don't get certain programs, then they can't be paroled or probated.”

The Campbell County Detention Center is currently running well below capacity due to staffing issues, Daley said. They send people serving state sentences to other jails willing to take them on.

Daley is one of the jailers suing the state Department of Corrections.

The Department of Corrections maintains 14 facilities of its own, and according to daily population reports, those facilities are currently operating under their cumulative designed capacity.

But according to the lawsuit, jail inspectors sent by the Department of Corrections Division of Local Services routinely cite local jails for overcrowding. And the overcrowding is caused directly by the state’s refusal to take people off the jail's hands, the lawsuit argues.

“People are supposed to be processed and transferred to a prison in a timely fashion,” Daley said. “And they're not. They're languishing in local jails for much, much longer than that.”

Justin Hicks contributed to this report.

Correction: This report has been updated to reflect the correct number of local jails in Kentucky.

Jared Bennett is an investigative reporter and deputy editor for LPM. Email Jared at jbennett@lpm.org.