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New report examines how Kentucky fills jails and prisons by criminalizing poverty

Women incarcerated in the Western Kentucky Correctional Complex in Fredonia, many on small drug charges that added up over time.
Ashley Stinson
Vera Institute of Justice
Women incarcerated in the Western Kentucky Correctional Complex in Fredonia, many on small drug charges that added up over time.

Researchers with the Vera Institute for Justice found the expansion in Kentucky’s criminal justice system has coincided with economic decline as coal and manufacturing jobs left the state.

If Kentucky was a country, it would have the 7th highest incarceration rate in the world.

That’s from a2021 analysis by the Prison Policy Initiative, and a new report shows the rate is the result of criminal justice policy decisions made in the last three decades.

Kentucky’s jail and prison rate more than tripled from 1985 to 2018, according to a report released last month by the Vera Institute for Justice, a New York based research and advocacy group focused on ending mass incarceration. The report found the number of people under supervision on probation and parole increased five-fold during that same time period.

At the same time, local governments have been expanding or building new jails to accommodate this growing incarcerated population and capture new sources of revenue.

Researchers with the Vera Institute found the expansion in Kentucky’s criminal justice system has coincided with the economic decline that followed the loss of coal and manufacturing jobs and the growing opioid and overdose crises. According to the institute’s report, Kentucky has relied on criminalization in attempts to solve social problems such as poverty, homelessness and addiction.

The report authors traced the explosion back to 2011, when Kentucky lawmakers passed the last major set of criminal justice reforms. That legislation, known as the “Public Safety and Accountability Act,” or House Bill 463, intended to decrease the number of people incarcerated for low-level drug offenses by reducing penalties for possession of controlled substances.

The opposite happened. Vera researchers found that drug related prosecutions increased and people were more likely to be charged with felonies since the passage of HB 463.

Vera Institute senior researcher Bea Halbach-Singh said Kentucky is an outlier among U.S. states for the “punitive nature of its system and the harshness of its drug laws.”

Whitney Westerfield, the Republican chair of the Kentucky Senate Judiciary Committee, said he generally agrees with the Vera Institute’s findings.

“Collectively, our first reaction, similarly to a lot of other states, is that we’d rather do what’s easiest and cleanest from an administration standpoint,” Westerfield said, which usually entails locking people up for complicated societal issues. “It’s like, ‘let's just get them out of our hair. Out of sight, out of mind.’”

Still, Westerfield, an attorney and former prosecutor with the Commonwealth’s Attorney’s office, said he’s not aware of any upcoming legislation or major attempts to reform Kentucky’s system. He said passing laws that roll back harsh criminal penalties is a tough sell for politicians like him.

“It's easier to campaign on being tough on people, let's clean up our streets and lock these people up,” Westerfield said. “It's far more difficult to do the hard work of recovery, of building people back up.”

The Kentucky Center for Investigative Reporting recently spoke to Halbach-Singh of the Vera Institute. You can read a transcript of that conversation, which has been edited for clarity and length, below.

Your report found Kentucky turns to the criminal justice system to address issues like poverty and addiction. What does this criminalization look like?

What we mean when we say that is it’s activities that people engage in in order to survive that become criminal. So, that can include things like homelessness, like trespassing, like not being able to pay fines and fees, as well as things that are made harder by poverty, such as meeting conditions of supervision that can include needing to meet a supervision officer or having restrictions on mobility that might limit the types of jobs that you're able to get or being able to travel to find a better paying job, for example.

How have Kentucky’s drug laws led to the expansion of the criminal justice system?

Across the country, and particularly in Kentucky, there's an ongoing overdose crisis. Kentucky’s response to that has been especially harmful, relying heavily on the criminalization of drug use. But pouring more money into jails isn't going to solve Kentucky's overdose crisis, and it will likely make it worse.

For example, we know that in our research, we've seen that drug related cases and particularly drug possession make up a large and increasing share of criminal prosecutions across the state. In 2021, it made up a quarter of all prosecutions. And that's despite efforts to reform drug possession statutes and to divert people to treatment as part of the reforms that were passed in 2011. And we know from existing research that responding to substance use disorder with criminalization not only doesn't solve problematic drug use, it actually creates more harm.

Kentucky’s local jails hold an unusually large number of people serving state sentences who would otherwise be housed in state prisons. In return, the state pays those jails a per diem, currently $34 a day. What are some of the economic trends driving this statistic?

With the loss of the coal manufacturing industries that had a really important impact on the local economies, on local budgets, and created revenue crises in some places. And this was happening at the exact same time as the costs of incarceration were going up. So local counties were having to deal with more and more people being held for the state and having to pay the associated costs of that incarceration and at the same time they were losing revenue from the loss of these industries. And so of course, they were seeking new sources of revenue. And that's sort of how this incentive to expand their jails and construct new ones was created because it allowed them to draw in this revenue from the per diem payments for the state.

What we see today is a growing recognition that this system doesn't work, that the incentives are perverse and that the revenues don't materialize for counties.

How do fines and fees associated with the criminal justice system impact people?

There's a whole range of fines and fees in Kentucky. There are ones that are in state statute and there are ones that can be adopted locally. People are charged fees, for example, for the number of days that they spend in jail, called boarding fees. People are charged for all sorts of different court related costs, administrative costs, even a fee to pay bail to be released from jail. And these fees can add up while you're incarcerated

The fees can mean that when you're released from jail, you're saddled with all this debt that you now have to pay off. You can make arrangements where you can have a payment plan. But often, when you're released, you might have electronic monitoring, or you might have other types of supervision that you may also have to pay for. So, not only do you have to repay these fees, you might be accumulating more fees in relation to your prior criminal system involvement. And if you're living in precarity, if you've lost your job, if you're trying to find a job, if you're trying to find housing, if you’re dealing with poverty, these fees can be really difficult to afford, especially when they're combined with these onerous sort of conditions of supervision that might make it hard for you to actually find a well paying job that would allow you to support yourself and your family and be able to pay back these fees. So, not only do they make it more likely that you'll have future criminal system contact, because if you don't pay the fees the judge can put you back in jail for failure to pay. Which, of course, is completely nonsensical, because in jail you'll accumulate more fees, so it doesn't really make any sense.

You referenced Kentucky’s last major attempt at criminal justice reform from 2011, House Bill 463. What is the legacy of that legislation now that we are a decade out? And how has that helped shape where we are now?

The previous reforms were based on an approach to law enforcement that basically treats systemic issues like the ones we've been talking about — like the opioid crisis, like these structural issues that prevent people from being able to meet conditions of supervision or pay their fines and fees and send them back to jail — as individual failures or choices. And then it uses criminal penalties and the threat of incarceration as a way to try to change that behavior. And we've seen that be an extremely ineffective way to deal with the drug crisis in Kentucky. Because without addressing some of the underlying conditions driving the demand for drugs, any reforms that prioritize punitive responses to drug use will only continue to make the problem worse. So the reforms didn't address the underlying causes of the high levels of drug use and addiction in this state. And research since then has shown that socio-economic factors like lack of opportunity, and poor working conditions contribute to a higher demand for opioids. At the same time, other research has shown that amphetamine use is prevalent among people who work physically strenuous jobs with long hours, which is really common in Kentucky.

So what we hope that this report does is shed light on why the previous reforms didn't work by showing that the broader systemic issues at play in Kentucky are part of the problem or part of what's driving high incarceration and relate directly to the chronic conditions in jails and prisons. And that any reforms that rely solely on this punitive approach that criminalizes poverty and substance use isn't going to address those underlying issues.

What can people in Kentucky do about this?

One thing that I think it's important for people to realize is that everyone is affected by this problem. Because if communities continue to invest more and more in jails, that saps resources from other things that we know people want and need in their communities like schools, health care, housing and job creation.

And it especially affects people who are in need of alcohol and drug treatment, but who are unable to access it without first having some contact with the criminal legal system, and who then are faced with all the negative consequences of that involvement.

In terms of what people can do, it's an interesting time in Kentucky right now. There's actually a corrections reform task force that has been meeting this summer and will continue to meet into the fall. And it was launched in response to a lawsuit by the Kentucky Jailers Association. And the jailers have several counties that alleged that this state prison system, the per diem system that we were talking about, doesn't adequately compensate counties for the costs of incarceration, as well as health care and services. So the task force is currently looking at the whole system of jail incarceration in Kentucky and deciding whether to overhaul it and what to do about it.

If we look at the way that lawmakers have approached these issues in the past, I think there's every indication that the task force would recommend a series of narrow technical changes that wouldn't really address the issues that are leading to so many people in jail and in prison, and that might actually make it worse if they continue to rely on criminalization. So I think what people can do is get in touch with their local elected leaders to make sure they know what their priorities are. If there are conversations going on locally about expanding a jail, building a new jail, and investing more in incarceration, people can get involved in those conversations and make it clear that that sort of investment isn't really going to support those communities to thrive.

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