The Advocate, Vol. 21, No. 2 (March 1999)

Prerelease Probation: Some Perspectives on how the Kentucky Criminal Justice System is dealing with the Program
Joe Myers, Assistant Public Advocate
 
 
 
22 (or 6%) of 365 Persons Granted Prerelease Probation

This is the third in a series of Articles on Prerelease Probation (PRP), a program enacted into law by the 1998 Kentucky General Assembly as part of HB 455, the Governor's Crime Bill. See Vertner Taylor, HB 455 Demands Cooperation, The Advocate, Vol. 20, No. 5 (Sept. 1998) at 47; Joe Myers, Tina Scott, Prerelease Probation - What Trial Attorneys and Their Client's Need to Know, The Advocate, Vol. 20, No. 6 (Nov. 1998) at 6. Since this program involves many participants across the state, with individual case situations, this article hopes to address some general perspectives and concerns. Additional information, questions and concerns that readers may want to see presented or addressed in future articles on this program may be forwarded to the author.

Introduction

When the General Assembly and the Governor addressed the issue of crime in the Commonwealth, the resulting legislation produced some significant changes not only for those citizens convicted of crimes, but also for many persons who administer different components of the criminal justice system. Perhaps none of these changes has brought about more widespread and immediate questions, concerns, hopes and feelings than the Prerelease Probation (PRP) Program found in KRS 439.575 and administered through the Kentucky Department of Corrections (DOC). Unlike other programs in the crime bill, Prerelease Probation quickly got the attention of much of Kentucky's incarcerated felon population and their families. The inmate response in turn was thrust upon the court system, Corrections, the Bar and in some cases victims. The Kentucky Department of Corrections' Office of General Counsel has likened the present situation to the time period shortly after the enactment of shock probation in 1972. Below are some general perspectives on the PRP program.

Kentucky Department of Corrections

The General Assembly delegated a significant amount of the administrative work for PRP to the Kentucky Department of Corrections. In response to this mandate, the DOC has worked with its staff and the courts to facilitate processing information about the inmate and getting it to the requesting court within a 90 day turnaround. The DOC Community Services and Local Facilities Branch, which includes the Division of Probation and Parole, reports that court orders seeking DOC's recommendation for PRP, are coming "on a daily basis" to their office. In turn, they are being processed to the proper individual "as quickly as possible." From this administrative perspective, the PRP program seems to be working well within the statutory guidance presented by House Bill 455.

Aside from dealing with the logistics of complying with court requests for a DOC recommendation on the PRP applicant, the agency also finds itself in a position to observe or receive reactions from the inmate population about PRP. According to Hazel Combs, Assistant Director of the Division of Probation and Parole, the most common misperception is that a judge must grant or act upon the inmate's request for prerelease probation. Some inmates expect more than a summary denial without a hearing or a chance for DOC to give its recommendation as to PRP.

In response to the mandate to administer the PRP program, Corrections promulgated Corrections Policy and Procedure (CPP) 27-11-02 on August 1, 1998 in conjunction with a uniform risk assessment scale to score the inmate risk level. This assessment instrument was prepared for a previous parole board by the National Institute of Corrections. Approximately two months after promulgating the above CPP, DOC recognized that two problems were created by the language in the new policy. In response, DOC modified the language where "an inmate with a major violation" was excluded from PRP consideration and issued a new regulation on December 17, 1998. (Copy follows this article.) It was replaced with a less onerous requirement, where inmates would be excluded for PRP consideration, if they had committed a major violation within the last twelve months or had any outstanding good time loss. Additionally, language in the original CPP could have lead one to believe that the deputy warden and the district supervisor could review the risk assessment score and give an unfavorable recommendation, even if the inmate received a score in the low risk category. This was replaced with language that in those cases of a low risk score, the deputy warden or district supervisor are to review the assessment and presentence report for accuracy. In essence, the score, not the reviewer, would now dictate a favorable or unfavorable recommendation. The New Risk Assessment Form follows this article.

In formulating DOC policy regarding how to determine which inmate gets a favorable recommendation, DOC Office of General Counsel had to meet several internal objectives. First, the Department's Code of Ethics which prohibits a policy of favoritism toward any of its inmates must be strictly followed. Secondly, the administration of the program must be handled helpfully but cautiously. Thirdly, uniformity in the process, avoiding unfairness, was sought. In the end DOC wanted to present to the courts for a favorable recommendation, those inmates who posed no more than a reasonable risk.

This cautiousness was recently the subject of a January 6, 1999 front page article in the Louisville Courier-Journal. In response to complaints that the PRP statute has done little to ease overcrowding, DOC points out that this legislation was not designed to eliminate the overcrowding of Kentucky's prisons and jails. DOC Office of General Counsel notes, as did the Courier, that the Bill's sponsor did not intend such a result either. Rather, other components of the Crime Bill, including greater use of alternatives to prison, such as mandating probation or probation with alternatives for more criminal defendants, pre-trial diversion, home incarceration for certain felons, use of electronic monitoring devices for parolees overall would lessen the prison overcrowding situation more significantly than PRP.

As of February 1, 1999, DOC had processed 365 requests for PRP. Twenty-two persons at that time had been probated to prerelease probation. This is 6%.

The Courts

Not surprisingly, according to DOC General Counsel's Office, and other observers, the response by the Judiciary has been varied. The number of persons granted PRP clearly shows there has not been a widespread embracement by the courts. Some judges obviously are using it to grant qualifying inmates a second chance. One example cited involved a judge, when he sentenced a defendant, envisioned he would be paroled at his initial parole review. When the inmate was denied parole, the judge considered his request for PRP and granted it. Other examples illustrate a strong feeling among Judges for the need for closure in criminal cases. Prosecutors and victims in large part could be expected to share this view even more strongly. Naturally, inmate requests for PRP add work to courts with already overcrowded dockets. Since this program was perceived by many inmates as a new chance for freedom, the swift application to the sentencing courts from individuals in an inmate population totaling roughly 15,000 ( according to figures in the Courier article) confronted some courts with old cases and a lot of them. Some courts have chosen to deny PRP requests summarily without asking for a recommendation from DOC. At least one court, on the other hand, has taken an active hand in reviewing the unfavorable recommendation score given an inmate by DOC's risk assessment scale. Still another court has held the statute to be unconstitutional on grounds that it vests in the trial court the executive function of parole. This, according to the court, is a clear violation of separation of powers under Sections 27, 28, 69 and 109 of the Kentucky Constitution.

It is clear the prospect for inmates seeking PRP , even with a favorable recommendation from DOC, in many cases will depend on convincing the judge to use his/her discretion to grant the privilege of PRP. Perhaps in some cases, the judge will have to be convinced that PRP itself, is a realistic and appropriate alternative to imprisonment in general, before addressing the individual inmate's plea for relief.

The Inmates

For the 22 inmates who have received PRP, the program and opportunity given them undoubtedly has been a major benefit. It will be interesting to monitor these individuals' success rate and compare them with parolees, probationers and shock probationers.

In the meantime, those denied PRP understandably are less than happy. As noted, those inmates whose cases are summarily denied without a hearing or any review of their institutional record, who might have received a low risk score, never got their day in court to show the judge the change in their lives. Such inmates will naturally be frustrated.

Others, already skeptical of DOC, view the risk assessment scale, especially when it disqualifies them with an unfavorable recommendation, as a tool by DOC to keep most prisoners behind bars. Still others are critical about ambiguities they perceive in the risk assessment scale criteria. This they feel in turn leaves a certain amount of interpretation in the hands of the caseworker who reviews the inmate information and assign points where indicated on the risk assessment scale.

To illustrate some potential problems, what constitutes a record of mental health concerns or record of alcohol abuse? Does having two categories that cover the age of one's first arrest doubly enhance one's score? What constitutes record of substance abuse as a juvenile? Clearly, in some cases, there is an element of subjectivity that can creep into the process. Presently there is no grievance opportunity under CPP 27-11-02 to challenge a risk assessment scale score. Will the court become the final arbiter? What about the inmate with subnormal intelligence or an undiagnosed learning disability that precludes his/her from attaining a GED? If one has a record of alcohol abuse as a juvenile, does that constitute a record of substance abuse also (i.e. alcohol is a drug)? When one is denied a favorable recommendation by a close margin, these issues can be devastating to the inmate's plight.

It is clear that some inmates have been led to believe that this program was intended to alleviate present prison and county jail overcrowding. Their view that this risk assessment scale is designed to keep them locked up, unfairly, only adds further to their frustration.

Kentucky Department of Public Advocacy

Understandably, the DPA is both affected by and interested on behalf of its past, present, and future clients in terms of PRP eligibility. At the trial level, PRP, like probation and shock probation, is another variable to factor into the plea bargaining equation. Seeking amended charges and favorable court fact findings, where feasible, can open an otherwise closed door to PRP eligibility. And PRP now provides an opportunity to respond effectively to a prosecutor who, in offering a plea bargain, is extremely confident that your client will only do a year or two before being paroled- and then gets a serve-out or lengthy deferment.

As noted previously, some courts have chosen not to grant hearings on PRP requests. While neither HB 455 generally, nor KRS 439.575 specifically establishes the right to a hearing or counsel in PRP cases, it is the Department of Public Advocacy's policy that appointing counsel in these cases is appropriate in some circumstances, as is the holding of a hearing. If the sentencing court wishes to conduct a PRP hearing and hear argument, DPA supports the appointment of counsel in such scenarios.

From a post- trial perspective, the Department's post-conviction branch has prepared a self-help packet for inmates on PRP. It provides information so the inmate usually can determine initially whether he or she is excluded automatically by law or regulation from receiving PRP. Materials to prepare a pro-se motion for PRP consideration are also included in the packet to assist the inmate. These packets are also made available to attorneys in DPA's trial level offices as well.

Additionally, DPA is in litigation, advocating upholding the constitutionality of the PRP statute. Aside from recognizing the fact that Kentucky statutes enjoy a presumption of constitutionality, DPA strongly believes the PRP is a constitutional extension of the trial court's sentencing power. The legislature unquestionably has the authority to deal with matters involving crime and punishment. Parole and probation eligibility are in fact part of the punishment/sentence. The legislature can dictate the method and conditions for probation. The constitutionality of the felony shock probation statute, KRS 439.265, has been upheld. The sentencing courts in this Commonwealth have been permitted to grant probation both at the time of sentencing and after final sentencing. PRP is merely a second type of post sentencing probation that allows a court to regain jurisdiction for a limited purpose and under limited circumstances.

Like DOC, DPA is closely monitoring the evolution and treatment of the PRP program in Kentucky's criminal justice system. Public Advocate, Erwin Lewis was quoted in the January 6, 1999 article expressing disappointment that so few people have been released. Having actively been involved with the 1998 General Assembly's work on criminal justice legislation, Lewis noted in the article that prerelease probation "fits logically" into provisions in the 1998 crime bill as one of its cornerstones - to use the limited num-

ber of prison cells for violent offenders. Lewis, who was appointed to the newly created Kentucky Criminal Justice Council, chairs the Council's "Corrections Alternatives to Incarceration " Committee. Undoubtedly, PRP will be a focal point in that organization's work.

Conclusion

Like shock probation, PRP has come onto the Kentucky Criminal Justice System offering hope to some and disappointment to others. It already has raised legal questions as to its own validity. Some judges have granted it while others have not. There is dissatisfaction from some on how DOC is administering the program and disappointment that the judiciary has not embraced the program to a greater degree. Statistics quoted in the Courier-Journal article attributed to the DOC showed about an 80% rejection rate for the then 224 applicants for whom review had been completed at that time. For those who obtained a favorable recommendation, 10 out of 46 had been granted PRP by the courts at the time of the article. PRP is experiencing some growing pains and rejection while at the same time being fine-tuned. Naturally, as with most new programs, there will be bumps in the road. Nevertheless, since the Courier-Journal article, in about a month's time the number of inmates being granted PRP slightly more than doubled. Undoubtedly, PRP has gotten the attention from various sectors of the criminal justice system. How these sectors treat and deal with PRP will almost certainly be a topic of study for next century's Kentucky General Assembly.

Joe Myers, Assistant Public Advocate
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601
Tel: (502) 564-3948; Fax: (502) 564-3949
E-mail: jmyers@mail.pa.state.ky.us

I would like to recognize and thank Marcus Jones for his work in researching the constitutional challenge issue.
 

Ed. Note:  The Ky. Corrections Policy (#27-11-02) that appears on p.42-44 of the paper edition is not reproduced.
 

NOTICE:  The responsibility for representing clients in prerelease probation hearings is the responsibility of the attorneys in DPA's Trial Division. When the Court appoints counsel on these cases, the local DPA trial attorney (contract & full-time) will provide representation.

 

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