Published: August 27, 2008 08:17 pm            

Tapp upholds restraining order

Continues denial of policy that would release prisoners

A Pulaski County judge continued a restraining order against a policy approved in April by the General Assembly to release some inmates and parolees early after hearing arguments for a statewide injunction against the policy.

During Wednesday’s hearing, Pulaski Circuit Judge David A. Tapp heard arguments from Commonwealth’s Attorney Eddy F. Montgomery concerning a prison policy outlined in House Bill 406, which allows the state to give credit for “street time” against sentences of parole violators.

“It’s an ill thought-out, misguided measure,” Montgomery said about the policy during closing arguments Wednesday.

HB 406 was enacted in an effort to combat the rising cost of housing inmates in prisons and jails and to help reduce overcrowding in the correctional system.

Previously, violators would have had to serve out their sentences after being returned to jail or prison. The new law, however, allows the state to credit the violator with the time he was out on parole. Montgomery filed for the injunction last week, claiming that the policy puts the general public in immediate risk and that the DOC is contradicting state law and the state constitution by applying the bill retroactively.

“This is clearly in contradiction with the state constitution and it is clearly in contradiction with state law,” Montgomery said.

Tapp issued the restraining order to inmates in Pulaski, Lincoln and Rockcastle counties, or the 28th Circuit.

DOC Commissioner Ladonna Thompson confirmed Wednesday that she and others within the department decided to apply the bill as they did because the language of HB 406 said that the bill should be applied to parolees and inmates. She also said she held several conversations with Justice Secretary J. Michael Brown and the state’s finance cabinet about how to apply the bill.

Thompson also agreed with Montgomery that an earlier policy enacted in 2003 was not carried out the same way as HB 406 is being carried out.

Thompson emphasized that violent offenders are not eligible for early release if they have not met a rule that requires violent offenders serve out at least 85 percent of their sentence in prison before they are eligible for early release.

“The policy doesn’t change any of those standards they (violent offenders) are required to meet to get discharged,” Thompson said.

Still, she said those who have met the 85 percent rule are considered for early release alongside other, less violent offenders.

If the prisoner has been paroled and has not absconded or committed another felony, he or she qualifies for the provisions of HB 406.

Around 1,500 inmates have been released under the new policy as of August 20.

Montgomery noted that the recidivism rate for offenders is between 30 to 33 percent for the first two years after being released from prison. That rate rises to 40 percent after three years.

Thompson said the state calculated that around $12.5 million would be saved should the bill stay in effect until June 30, 2010, but she said the possible costs to victims and their families, along with insurance costs if those offenders released early offend again, was not entered into the formula.

Wesley Duke, the attorney representing the DOC, objected to the line of questions from Montgomery Wednesday and said no irreparable or immediate harm can be proven that would require the issuance of an injunction.

Tapp responded by noting the case of a former inmate who received multiple DUI charges while out on parole and said that, while an individual victim can’t be immediately named, the public may be at risk if certain offenders continue to be released early.

“There’s no victim in that case, just the general public,” he said.

Tapp said he would try to come to a decision on the injunction “expeditiously,” and his ruling is expected at any time.

        

• Click to discuss this story with other readers on our forums.