by David M. Reutter

In October 2019, the Kentucky Department of Corrections (KDOC) announced plans to lease a privately-owned prison in Floyd County that has sat idle since 2012. State Justice Secretary John Tilley, who oversees the KDOC, hopes the prison’s 650 beds will make a “serious dent” in overcrowding at the state’s other correctional facilities, while also offering drug treatment and other programming unavailable to state prisoners held in county lockups.

As of September 2019, the KDOC, which costs Kentucky taxpayers $650 million annually, reported a population of nearly 24,000 prisoners, half of whom are held in 76 county jails due to overcrowding in state prisons. But Tilley said that only four of those local jails were at or below capacity. Nearly half – 37 – were at least 140 percent of capacity while another 10 jails were at 200 percent.

Outgoing Governor Matt Bevin refused to build more state prisons, but that failed to force the General Assembly to make a serious effort at criminal justice reform that might lower the state’s prison population. According to the Vera Institute of Justice, other states that have embraced reforms were able to reduce their prison populations by an average of 8.5 percent from 2008 to 2018. Kentucky saw an 11.2 percent increase in its number of prisoners over the same decade.

One reason for the impasse has been the popularity of “lock-‘em-up” political campaigns on the state level. But another reason is jobs. Local officials in Floyd County touted about 200 new positions that the private prison will bring to a region hit hard by the state’s declining coal industry. There is also a profit motive for private prison operators in the state.

In Floyd County, the KDOC will operate the former Otter Creek Correctional Center, which will be renamed the Southeast State Correctional Complex when it opens in early 2020, and will lease the facility from Nashville-based CoreCivic, the country’s second-largest private prison company formerly known as Corrections Corporation of America. Otter Creek closed in 2012 following multiple incidents of sexual abuse of female prisoners by staff members, including the chaplain. [See: PLN, Feb. 2012, p.20; Sept. 2011, p.16; Oct. 2009, p.40].

CoreCivic already holds 800 state prisoners at its Lee Adjustment Center under a 2017 contract that pays $57.68 per prisoner per day – well below the KDOC’s average cost, though considerably higher than the $31.34 per diem paid to local jails, which are mandated by state law to accept state prisoners. Still, that doesn’t keep some counties from viewing state prisoners as a revenue source.

“If we only keep a hundred state inmates, it will make our bond payment on the jail,” remarked Knox County Judge-Executive J.M. Hall at the 2017 groundbreaking of the county’s new detention center. “Someone asked, ‘What if we don’t get state inmates?’ We will. There’s plenty of them!”

Pointing to the local circuit judge to audience laughter, Hall added, “Judge Lay here, he’ll fill it for us, won’t you?”

“A lot of what I call the prison boosters, often what you’ll hear from them is it’s a good economic development strategy [to build a new local jail] because it’s recession proof,” said Judah Schept, associate professor in the School of Justice Studies at Eastern Kentucky University. “If you build the beds, you can fill them. We’re always willing to lock up more people.”

Madison County jailer Steve Tussey is dealing with a facility built to house 184 that regularly holds 400. He is pushing for an 800-bed jail, though, and a doubling of the current facility’s $3.9 million budget, to chase “revenue opportunities we don’t have right now.”

“If I can house 100 federal inmates and 100 state inmates,” Tussey said, “then the revenue possibilities are substantial. It could mean $2 million to $3 million a year.”

But Christian County jailer Brad Boyd, who serves as president of the Kentucky Jailers Association, calls that attitude part of the problem.

“Unfortunately, we have gotten to the point where we’re looking at incarcerations as a money-making industry,” he stated. “I hate the fact that we’ve gotten to this point. I don’t think it was ever intended to be how it works. But there is so much pressure being put on the elected jailers by the fiscal courts to do this, to find some revenue so the local governments don’t have to bear all the costs of our operations.”

“No one likes this,” Tilley agreed, calling the practice of housing state prisoners in local jails “a failed policy.”

Studies show that parole rates are higher and recidivism rates are lower for Kentucky prisoners who serve their time in state prisons rather than jails.

“You have those [local jails] that lack any resources,” Tilley explained. “They are not properly equipped – there is no physical plant space. They are truly stacking bodies. They don’t have, the counties don’t have the resources to invest in them at all.”

Another factor contributing to overcrowding is a large number of pretrial detainees. A 2019 analysis by the state Administrative Office of the Courts (AOC) found that 71 percent of the 6,796 pretrial detainees in the state as of November 1, 2018 were actually eligible for release, having been charged with nonviolent crimes, most commonly drug possession. The majority of those detainees were also deemed low risk for failing to appear in court or committing another crime before their appearance.

“We have to come up with alternatives for people with substance use disorder,” said Tara Blair, director of pretrial services for the AOC.

Calling the issue more complex than bail reform, she noted, for example, that most county jails don’t offer drug treatment programs for people prior to conviction. But Kenton Commonwealth Attorney Rob Sanders said that’s because judges are reluctant to release drug-possession defendants who may then overdose and die. He pointed instead to Ohio, which offers “treatment in lieu of prosecution,” as well as laws in other states allowing police to direct people into treatment rather than face criminal charges.

“While jail may or may not provide temporary security against tragedy,” summarized Damon Preston, the state’s Public Advocate, “jail does nothing to address an addiction and often makes the defendant more susceptible to an overdose upon release.”

The state has a pilot program called “rocket docket” to expedite such nonviolent drug cases, but it involves quick plea deals – sometimes before all the evidence is gathered – which may violate a defendant’s constitutionally protected due process rights, according to state Senator Robin Webb.

“There is more to this than efficiencies and saving money,” Webb noted.

“We have to open treatment beds in Kentucky,” said state Rep. Jason Nemes, who has sponsored several criminal justice bills and agrees that placing drug addicts in jail is not a good investment of taxpayer dollars.

“Housing these people in jails where there is no drug treatment, no rehabilitation, no career counseling is not effective,” he observed.

Especially when the jail is already overcrowded. When too many people are jammed into a small space, violence, stress and disease often spread.

“I was in an area that had eight bunks and one working toilet and 31 people,” said Phillip Poston, who was held at the Madison County Detention Center in 2015 for falling behind on his child support payments.

“There were guys sleeping on the concrete floor on these thin little mats, guys sleeping in the shower,” Poston recalled. “You constantly had to step over each other to go anywhere. We had fights break out because everyone was right in each other’s faces all the time.”

Such conditions create a tense atmos­phere. After Army veteran Michael “Boo” Moore, 40, was arrested for public intoxication on November 27, 2018, video showed four guards at the Boyd County Detention Center “roughly hurling Moore around the jail’s booking area, flipping him backward while he was hooded and tied into a restraint chair, shocking him, pepper spraying him, slamming his head into a concrete wall, and throwing him down into a metal toilet.”

A Kentucky State Police officer later testified that Moore suffered three broken ribs and internal bleeding that killed him.

“This boy went through abuse for 36 hours,” said Moore’s aunt, Brenda Murphy. “They were mean to everyone who came through there, it wasn’t just him. He’s just the one who died from it.”

In June 2019, Boyd County paid Moore’s family $1.75 million to settle a lawsuit over his mistreatment and death. Four guards face first-degree manslaughter charges while a fifth has pleaded guilty to wanton endangerment for not obtaining medical care for Moore. [See: PLN, Dec. 2019, p.63].

Earlier in 2019, federal investigators with the U.S. Department of Justice (DOJ) found that guards at the Boyd County jail exhibited a pattern of brutally abusing prisoners under the guise of maintaining control. They also documented fatal drug overdoses by prisoners and a 2017 riot that temporarily closed the 206-bed facility.

“Staff are given no training to help them manage prisoners in the jail’s overcrowded living conditions,” DOJ investigators reported.

To settle another lawsuit, Madison County agreed to pay $300,000 to the family of a prisoner who committed suicide in an isolation cell. In that case, guards falsified logs to reflect they had made observation rounds every 20 minutes when they had actually ignored prisoner Charles Hoffman for more than three hours.

And in spring 2019, a prisoner at the Lincoln County jail – which was operating at 192 percent of capacity – was sexually assaulted for over 40 minutes by three other prisoners as guards were reportedly “outside of the cell, laughing.”

“I’ve sounded every alarm I know how to sound,” said Tilley, who also served as chairman of the state House Judiciary Committee. “I’ve stood on my head. I’ve become a lightning rod. I’ve become the bogeyman for anything that I suggest as reform and that I consider to be a commonsense solution.”

But while reforming the state’s carceral practices may seem like a commonsense solution, “tough on crime” rhetoric is easier come election time.

“I think there’s still this prevailing thought in Frankfort [the state capital] on how we need to be tough on people we think did wrong even if it’s not the best approach,” said Kentucky Senate Judiciary Committee Chairman Whitney Westerfield. “It’s easier in a radio ad or a direct-mail piece during an election campaign to tell voters, ‘I’m tough on crime, I locked more people up’ than it is to rethink how we handle these offenses in a meaningful way.”

Behind the tough-on-crime approach is often the belief that prisoners are less than human, unable to change and deserve whatever they receive.

“You spend time in a Kentucky jail and you will come out a very different person with a very different perspective on life, and I can assure you, it won’t be positive,” said Greg Belzley, a prisoner rights attorney in the Louisville suburb of Prospect.

“And if you think, ‘Well, they’re just animals, who cares what happens to them,’ guess what?” Belzley continued. “These ‘animals’ will be released back into your communities. They can come out better or they can come out worse. The way we treat them while they are incarcerated is going to play a big role in that.” 

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Sources: kentucky.com, courier-journal.com, usnews.com

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