Kentucky drug laws create inmate flood
Kentucky’s 35-year war on drugs has produced “brutally harsh sentences,” flooded the prison system with non-violent and small-time offenders and helped push the state budget to the “outer edge of fiscal distress,” the author of the state’s penal code says.
An array of penalties and enhancements for drug offenses have crowded the state’s prisons with offenders who pose little risk to others and who are forced to serve lengthy terms that used to be reserved for “society’s worst actors,” University of Kentucky professor Robert Lawson said in a new report on Kentucky’s skyrocketing prison population.
Lawson’s 60-page study, which has been distributed to some legislative leaders, could provide fuel for changing a patchwork of drug punishments that he says have “failed miserably” to distinguish between minor offenders and major traffickers.
Criminal justice officials already have said they support some of Lawson’s recommended changes, though most are expected to face opposition from politicians who don’t want to appear “soft” on crime.
Lawson says the state needs to rethink that enhance penalties for selling drugs near schools, or while in possession of a gun, when the firearm isn’t used in. He also says the General Assembly should eliminate “double enhancements” that allow offenders to be punished for repeat drug offenses and being persistent felons.
And he said that the state needs to set out punishments based on the volume of drugs.
Responding to Lawson’s report, J. Michael Brown, secretary of the Kentucky Justice and Public Safety Cabinet, said he would welcome legislative review of graduated drug penalties and other sentence enhancements.
“Those are very legitimate things to look at,” he said.
But Allen Trimble, president of the Kentucky Association of Commonwealth’s Attorneys and the top elected prosecutor in McCreary and Whitley counties, said that while he respects Lawson, “his recommendations overall would hamstring law enforcement and prosecutors all over the state.”
Trimble specifically cited Lawson’s call for graduated penalties that would allow lesser sentences for small quantities of drugs.
“Small amounts of drugs cause vast harm,” he said.
Attorney General Jack Conway agreed with Lawson’s recommendation that Kentucky needs to take a comprehensive look at its drug laws, but he cautioned that “changing the laws without providing for adequate treatment” would create “a revolving door that spins more quickly.”
About 5,000 of Kentucky’s roughly 22,000 inmates are serving time for drug offenses, where the drug conviction is their most serious offense, according to Lawson’s report — “Drug Law Reform – Retreating from an Incarceration Addiction.” The cost of their incarceration is about $100 million a year, the report states.
In comparison, about 28 percent — or 8,000 — of Indiana’s adult prison population is serving at least one drug offense, spokeswoman Courtney Figg said.
The report says the number of Kentucky inmates serving drug sentences is nearly twice as many as were serving time for all offenses before the war on drugs began.
The Pew Center on the States reported in 2008 that Kentucky's prison population was the fastest growing of any state.The state’s prison population has grown nearly sixfold from 3,700 in 1980 , and its corrections budget from about $30 million that year to about $466 million this year.
Lawson, the former dean of UK’s law school and principal author of Kentucky’s penal code in the 1970s, says that the multiple enhancement of sentences for second offenses, persistent felons and for selling drugs near schools or while in possession of firearms have produced extended sentences that “totally destroy the principal of proportional punishment — an eye for an eye and a tooth for a tooth.”
Besides the expense to taxpayers, Lawson says the average person should take notice because “the person over-punished could be your son or your daughter or your spouse.
“I get calls two-three times a week from parents who now understand that,” he said in an interview.
Lawson based his study in part on a review of every felony drug case prosecuted in Fayette County in 2003. He found that while two-thirds of the 344 defendants were charged with drug trafficking, the group were “more like drug abusers and bit players ... than big-time profiteers.”
In part, that’s because Kentucky’s drug-trafficking law, other than for marijuana, says nothing about the quantity of drugs that must be possessed to support such a charge and conviction, he said.
Unlike in other states, in Kentucky a person is guilty of possessing cocaine and other drugs with intent to sell regardless of whether he has a trace or a pound.
Fayette County Commonwealth’s Attorney Ray Larson said Lawson’s study fails to reflect the previous crimes committed by those offenders, many of whom he said were career criminals.
His own review of the criminal records of 31 cases cited in the report shows that on average, those defendants had convictions for three felonies, seven misdemeanors and 1.3 probation violations.
“You have to understand where Lawson is coming from,” Larson said. “He thinks government shouldn’t have as its primary function the safety of the public, and I do.”
Lawson’s report also identifies other factors that he says make Kentucky’s drug laws unfair:
*Trafficking within 1,000 yards of a school carries an additional sentence of one to five years in prison, even if the defendant was in his home or a bar. None of the 42 defendants charged in Fayette County with that offense were found to be selling to schoolchildren or on school grounds. And the enhancement applies regardless of the drug.
For example, the report states that Maurice Williams, 41, was arrested for public intoxication when he left a bar within 1,000 yards of a school was charged with public intoxication and trafficking near a school because he has marijuana on him. He was sent to prison for a year.
Lawson says the number of prosecutions suggested that Fayette County’s schools were “under siege,” but “looking beyond the numbers, one finds not even a hint of danger to schools or school children.
*Drug possession or trafficking while in possession of a firearm raises the offense to the next highest degree — turning a misdemeanor, for example, into a class D felony punishable by up to five years in prison. But the enhancement doesn’t require proof that the gun was used in the crime.
Lawson found that in 24 gun-enhancement cases in Fayette County, there was a “total absence of proof that the gun was involved in any fashion in the commission of the drug crime.”
For example, the report states that Anthony Jackson. 35, was charged with possessing 9.4 grams of crack cocaine while he had a gun in his pickup truck. He was charged with cocaine trafficking and possession, both elevated by the presence of the gun — and sent to prison for five years.
*Double enhancement allows prosecutors to punish offenders under the two-strikes provisions of the state’s drug laws — as well as for being persistent felons for previous convictions on other types of crimes.
The study says, for example, defendants convicted of possessing cocaine normally would be punished as Class D felons, with a sentence of one to five years in person. With an earlier drug conviction, they would be punished as Class C felons, with a sentence of 5 to 10 years.
If they had had an additional earlier felony conviction for a non-drug offense, such as writing a bad check, they face the possibility of prosecution as both a repeat drug offender and a persistent felon, with punishment as a Class B felony that carries 10 to 20 years in prison.
The report says that Robert Dawson, 28, for instance, who was arrested for public drunkenness, was arrested in 2003 in Fayette County with 1 gram of cocaine. He was charged with possession and being a with first-degree persistent felony offender, based on past convictions for possession, bail jumping and being a felon in possession of a handgun. He got five years for the new drug charge, which was enhanced to 20 years under the persistent felon law.
*Double counting allows prosecutors to obtain multiple convictions from a single act. For example, a defendant found in possession of marijuana plants can be convicted of both cultivating marijuana and trafficking in marijuana.
The study found that Nathan Abner, 27, for example, was charged with cultivating marijuana at the same time he possessed a firearm. He was charged with trafficking in marijuana, cultivating marijuana (less than five plants) and possession of marijuana. The gun charge enhanced two of the three counts and he was sentenced to 10 years in prison.
Overall, 95 percent of the defendants charged with drug offenses in Fayette County were convicted, mostly through guilty pleas, and 60 percent were sentenced to a year or more. In all, 202 inmates in one year were sent to the state’s crowded jails and prisons from a single county.
Brown, the Justice cabinet secretary, noted that the state Criminal Justice Council last year recommended changing the law to ban double enhancements under the persistent felon and two-strikes drug law.
But he cautioned that changes must make sense based on a “statewide perspective,” rather than from Lawson’s findings in Fayette County.
Lawson also studied drug prosecutions in 2003 and 2004 in Scott County, where he found prosecutors were less likely to use enhancements and that defendants were punished less harshly.
Trimble, the president of the state prosecutors’ group, took issue with Lawson’s call for scaling back the school-zone law.
“The fact that the illegal purchase of drugs is near school children is certainly a danger which justifies the enhancement,” Trimble said.
State Public Advocate Ed Monahan hailed Lawson’s findings and recommendations, some of which mirror recommendations made by the Department of Public Advocacy.
“Professor Lawson is correct that the drug laws are a qualified mess,” Monahan said.
Lawson said that many recognize that the “drug problem is no better and is probably worse” then when the war on drugs was officially declared early in the next decade. In his report, he notes that unlike other felonies, removing a drug dealer from the street doesn’t reduce drug dealing.
“But when a street corner drug seller is imprisoned, it is far from clear that there is any immediate impact on drug selling,” he said. “As long as a market for drugs exists in that neighborhood, there is an almost endless supply of potential sellers willing and able to enter this potentially lucrative market.”
Author: Andrew Wolfson, The Courier-Journal
Date: January 17, 2010