Justice Cabinet secretary warns state prisons now ‘out of space,’ further criminal justice reform needed

Justice Secretary John Tilley | Photo courtesy of Kentucky. Gov

Kentucky Justice and Public Safety Cabinet Secretary John Tilley says that state prisons are now “out of space” to house more inmates, urging the state legislature to pass legislation next year that was recommended by a criminal justice reform task force to slow the growth of this population.

Asked about his estimate early this year that state prisons would run out of space in May 2019 and force the release of thousands of nonviolent inmates, Tilley told Insider Louisville in an interview the estimate has now changed, as “practically, we are out of space at this moment.”

“We are at capacity in every one of the 76 full-service jails where we are obligated by law to house Class D inmates and some Class C,” said Tilley. “It will get worse before it gets better, which will force us to make some tough decisions.”

One of those tough decisions was reopening a private prison in eastern Kentucky last fall, which now houses over 800 state inmates — along with increased state oversight. Tilley, who noted that he has long been a critic of private prisons and their past abuses within the state, said that “was not something we wanted to do,” but were left with no choice.

Though opening this Beattyville facility freed up space for inmates, the Kentucky General Assembly passed on appropriating money to reopen two more private prisons that had closed in the past decade. Tilley says this move has forced them to increasingly house more inmates in already overcrowded county jails, which now house “well over half” of the state’s 25,000 prisoners.

Tilley has been sounding the alarm on the growth of Kentucky’s inmate population since he was a member of the state House, where he was the lead sponsor of House Bill 463 in 2011, a far-reaching criminal justice reform bill that sought to steer nonviolent drug offenders out of long prison sentences and into treatment or other programs to reduce recidivism.

While the inmate population of 23,000 at the time of HB 463’s passage was estimated to reach 35,000 by 2018 without those reforms, Tilley noted that the current 25,000 inmates — held in overcapacity state and county jails — “is not where we want to be.”

Though the worst-case estimates of inmate growth have been avoided, Tilley noted that the parole grant rate has been much lower than expected, in addition to “some rollbacks” passed by the state legislature in the face of an escalating drug epidemic that are estimated to contribute to a rise in this population in the coming years.

One example of such legislation was House Bill 333 passed in the 2017 session of the General Assembly, which was mostly focused on limiting prescriptions of opioids for acute pain to three days-worth of medication. However, at the last minute this bill was amended to include a provision dealing with heroin traffickers that did away with “peddler distinction,” in which a person with an opioid-use disorder sharing under two grams for their first offense could receive a lower Class D felony.

The bill passed and went into effect last July, despite the Kentucky Department of Corrections estimating that this removal of the peddler distinction would cost the state an additional $30 million if the nearly 500 inmates incarcerated at the time on Class D heroin charges had been convicted of Class C felonies.

Tilley said that it is too soon to quantify what kind of effect this new provision has had on the state’s prison population, but said, “we won’t back away from our original corrections impact statement,” which was their best guess at the time.

However, Tilley said that there are concrete steps that the legislature can take to slow the growth of the state’s prison population, pointing to the recommendations that were released in late 2017 by a work group of the Criminal Justice Policy Assessment Council (CJPAC).

First among these recommendations is to increase the felony threshold level for theft in Kentucky, which is currently $500 and in the bottom five among all states. Noting that the felony threshold is $2,500 in Texas, he noted that “the vast majority of states that have (lowered the threshold) — and the vast majority have — have not experienced increases in property crime.”

Tilley also cited bail reform as a priority, as he believes cash bail is not just unconstitutional, but “an issue of fundamental fairness and equity.” He also wants to focus on reducing the possession of certain drugs to a misdemeanor offense — citing such efforts in Oklahoma, Tennessee and West Virginia — as “we want to treat that more as a public health disorder, a mental health issue, than a criminal justice issue.”

He also wants to improve how the state supervises the 48,000 individuals on probation and parole in Kentucky, with evidence-based practices using “graduated sanctions.” Noting that the No. 1 reason for new jail admissions is not committing a new crime, but a technical revocation of probation or parole, Tilley said that this is what really drives the growth in this population.

“In other words, if somebody fails a drug test and they’re on supervision, the answer is not prison,” said Tilley. “The answer should be more treatment.”

Tilley also believes the state’s drug courts should increase their use of medication-assisted treatment for participants, saying that “especially for opioid-use disorder, it is the best practice.” He also noted that state corrections has increased treatment for inmates by 1,400 percent over the past decade, which he would like to continue multiplying in order to meet the growing need — as the state witnessed 16,000 nonfatal overdoses and 1,565 fatal overdoses last year, mostly involving opioids.

“We’re piloting as much as we can now at trying to take it to scale in our system, where we’re treating in corrections over 6,000 people,” said Tilley. “We need to treat 12,000. We want to treat 18,000. We’re trying to take that to scale, because there’s such demand.”

According to Tilley, Kentucky will soon become the first state in the country to pilot in corrections the COR-12 model of Hazelden Betty Ford that combines the 12-step abstinence model of recovery with medication-assisted treatment like buprenorphine — an approach that was first used by Centerstone Kentucky two years ago.

Asked if there was a chance of legislators in next year’s session seeking to bring back the peddler distinction for low-level heroin offenders, Tilley said he was no aware of any, “but that’s an interesting question. That will be something that I’m sure gets discussed in the other reform discussions.”