Jefferson Circuit Court announces the adoption of an emergency protocol to deal with the crisis which has arisen since the Kentucky Department of Corrections (KDOC) recently became unable to routinely take custody of convicted felons ordered to serve a sentence at a facility designated by KDOC.

FACTUAL BACKGROUND

What is the Metro Department of Corrections Job?

The Metro Department of Corrections (MDC) is responsible for supervising persons: a) being held while awaiting trial on criminal charges; b) serving a sentence of twelve months or less for a misdemeanor conviction; or, c) held for being in contempt of court. It is largely funded by the taxpayers of Jefferson County. MDC has an annual budget approaching $56,000,000 and handles over 32,000 bookings per year. Based on an evidence-based risk assessment process, in 2015, 41 percent of persons booked into MDC were classified as Minimum Risk, 4 percent were classified at Medium Risk, 0.4 percent were classified as Maximum Risk, and the balance were not classified for various reasons.

How Many People is MDC Supervising?

MDC routinely operates two secure facilities, the Metro Jail (Jail) and the Community Corrections Center (CCC). They are designed and certified to house 1,793 people. Yet in recent months the number of persons being held has exceeded 2,000 on multiple occasions and has even approached 2,200.

What Happens When MDC has so Many People in Custody?

The number of persons being held by MDC has required it to open a third facility on a recurring basis. This older jail, overtop police headquarters at 7th and Jefferson, no longer complies with applicable safety codes. Housing persons there is inordinately expensive. More importantly, it is dangerous - for the prisoners and for the staff supervising them.

Is There Any Other Way to Supervise People in Custody?

MDC currently has equipment which would allow it to supervise up to 750 prisoners in their own home on the Home Incarceration Program (HIP). Also, the potential exists to ramp­ up HIP's capacity relatively quickly. The average daily cost of supervising a prisoner at the jail is $76 and at CCC it is $83. The average daily cost of supervising a prisoner on HIP is $19 and some of this cost is often recovered from the prisoner. At any given time, about 600 persons are currently being supervised on HIP.

How Does HIP Work?

Persons on HIP are tracked with GPS equipment, MDC officers inspect the houses and randomly drug tested persons on HIP. These persons face felony escape charges if they leave their home without permission, and receive a day of custody credit for each day spent on HIP because of the serious restrictions it places on one's freedom.

How Did the Number of Persons Held at MDC Get So Large?

A fourth category of persons held by MDC are persons who have been convicted, after trial or plea, of one or more felony crimes. Once sentenced, these prisoners are to be transferred to KDOC in Oldham County where they are classified and transferred to any of several KDOC operated facilities. But the length of time it is taking for KDOC to pick up these prisoners has extended from days to weeks and from weeks to months. The result is a growing number of persons housed at MDC who require the highest level of supervision.

I Thought Kentucky Passed Legislation Designed to Reduce Prison Populations?

In 2011, as Kentucky's rate of incarceration reached a record-setting pace, the General Assembly passed bipartisan legislation known as HB 463 for the purpose of reducing the number of persons being incarcerated. Initially, the implementation of HB 463 led to a slowing of the increase, and even a slight reduction, in the number of persons held around the state. In 2013, Kentucky decided to end its contract for the operation of private prisons. This was accomplished by incarcerating fewer persons and by using local jails and half-way houses.

Indeed several county jails willingly accepted state prisoners because it enabled them to achieve economies of scale which made the cost of operating those jails less onerous.

So What Happened?

average daily cost to house a prisoner in the jail is $76. However, the Commonwealth only reimburses MDC $31.34 for each day MDC houses a state prisoner. While the incremental cost to house one more prisoner for one more day is not necessarily $76 or even $31, when the increase in the number of prisoners compels MDC to open and operate a third facility, the cost of holding that state prisoner can greatly exceed $31per day. It is not an exaggeration to describe the situation as a crisis on multiple levels.

Isn't This a State Problem?

The long-term solutions will have to be generated and implemented by the Commonwealth. But those solutions, as a practical matter, will not be determined and put in place any time soon. For example, the state appears to be taking steps to reopen one of the prisons it closed earlier this decade. However, it will likely take many months for that facility to become operational. In the meantime, some action must be taken to alleviate the crisis.

Has This Happened Before?

Comparable overcrowding of the local jail occurred a number of years ago. The federal court dealt with the problem that time in response to a lawsuit filed on behalf of prisoners and claiming their rights were being infringed upon. The federal court simply released every prisoner whose cash bond was under an arbitrary dollar amount chosen so as to set free enough people to achieve a targeted jail population. While seemingly straightforward and even-handed, this approach ignores many factors judges would normally consider when determining who required supervision and who did not. The community is at risk of a similar federal court solution being implemented again if the overcrowding continues without a state court response.

JEFFERSON CIRCUIT COURT

Jefferson Circuit Court has jurisdiction over the most serious criminal cases -those where the defendants have been accused of felony crimes which carry a potential for imprisonment from one year to life (or even death). Metro Louisville's 13circuit judges have been grappling with incarceration rates for years. Addressing pretrial detention, numerous steps have been taking to move cases expeditiously. When it appears prudent to do so, judges have been setting conditions of bail which do not require in-jail detention (such as HIP, the posting of partially secured and property bonds, etc.). Addressing post-conviction status, judges have been utilizing probation and diversion, when appropriate, which reduces state prison populations. Unfortunately, it appears these efforts have been swamped by the state backlog.

THE EMERGENCY PROTOCOL

When the number of persons being supervised by MDC exceeds the number it can safely supervise at the jail and CCC, the new protocol will be implemented. The details are as follows:

• MDC will create a list of persons in its custody who meet certain criteria. The number of persons listed would be up to the number of state prisoners being held at that time.
• That list will be forwarded to the respective circuit judges on those prisoner's cases. The list will also be sent to the prosecutor’s office who may state an objection to particular persons being moved to HIP.
• Then the judge, on his or her own, or in response to the prosecutor's argument, will have an opportunity to affirmatively remove a person from the list.
• Absent such a removal, the persons on the list will be moved to HIP, thereby freeing up bed space for convicted felons KDOC has not taken custody of.
• Only persons who have followed the rules while held by MDC will be eligible for inclusion on the list.
• State prisoners will not be eligible for inclusion.
• Persons being held who meet any of the following criteria will not be eligible for inclusion: charged with an A or B felony, or with being PFO I; accused of violating an EPO/DVO or any offense causing death or serious physical injury; charged with escape; or persons with a Circuit Court cash bond over $25,000.
• Persons held on a District Court cash bond are not eligible as Circuit Court cannot change District Court conditions of bail.

It is hoped that the emergency protocol will not need to be implemented except on rare occasions and only for a limited number of persons. However, Jefferson Circuit Court cannot control how many prisoners KDOC can house. But it can, and will, comply with its duty to treat persons accuse of a crime fairly while insuring compliance by those persons with court orders.

For additional information contact the office of Jefferson Trial Courts Administration, at 595-4588.