The 2022 General Assembly has a great opportunity to build on the positive changes in penal policy since the last session. Raise the threshold at which theft becomes a crime, end the automatic transfer of some young people to adult court and ensure that people returning to their communities after their incarceration can get help with groceries been big wins from 2021 – worth celebrating and complemented by more laws that reduce incarceration and its harms.
Instead of making Kentucky safer, increasing incarceration hurts the people we lock up, and their families and communities. More effective measures include improving job quality and cutting spending on confinement and more on early childhood education, college affordability, mental health and other public services. Unfortunately, as Kentucky has seen year after year, lawmakers are locked into a pattern of taking a few steps forward and then taking several steps back. One month into the 2022 legislative session, we have already seen a number of bills introduced and advanced that would increase criminal penalties in Kentucky.
Last December, we published analysis showing that in the decade since the enactment of HB 463 of 2011, a groundbreaking penal system bill designed in part to reduce incarceration, lawmakers passed 6 times more laws increasing incarceration than decreasing it.
This session, we’ve seen more of the same: punitive bills introduced that would increase the mandatory sentence length for importing and trafficking fentanyl – which research shows harms people with to substance use and do not eliminate drug “backbones” – and proposals that create stiffer penalties for minor offenses like low-level theft. Also, rather than proposing legislation to help fix the patchwork system that allows thousands of poor Kentuckians to stay in jail before trial simply because they can’t post bail, while wealthier Kentuckians face on identical charges can pay to get out, we have instead seen legislation introduced that will ban charitable bail funds that help poorer people pay their bail.
These policies will not make our communities safer, but rather contribute to deep and lasting damage to Kentucky’s already terrible incarceration problem. Research has increasingly shown that criminalizing more behaviors and locking people up longer does not make communities safer, but increases the likelihood that people will lose their jobs, homes and children, have a greater likelihood of relapses and overdoses of drug addiction and undergo other forms of hardship.
Additionally, as we continue to observe Black History Month, we must recognize that increasing criminal penalties will continue to exacerbate the deep racial disparities within the criminal justice system, where blacks make up 8% of the population but 21% of Kentucky’s prison population. Harsh sentences, labor segregation in undervalued jobs, heavy policing and underinvestment in black communities are systemic factors responsible for these disparities. Yet, in the absence of policy change, black Kentuckians — as well as Kentuckians of all races — are paying the price.
No wonder we are where we are. For decades, cultural common sense was that “tough on crime” policies made us safer. But we tried this approach, and it failed and will continue to fail us. Now is the time for Kentucky lawmakers to leave behind old failed ideas and focus instead on reducing harm from the criminal justice system and making investments in communities that research shows reduce crime, improve security and allow us all to prosper.
There are clear positive steps they can take. For example, HB 218 would expand expungement to make it easier for people who have served time to rebuild their lives and avoid reincarceration. Another bill, SB 31, would improve pretrial justice by requiring anyone detained before trial because they cannot post bail to be tried within 180 days for a felony charge or 90 days for a misdemeanor charge. We also anticipate further legislation this session to address persistent criminal offender laws (which unnecessarily and harmfully improve sentences for those convicted of crimes) and bills to expand options for pre-trial diversion for people with issues such as substance use disorders.
The deadline for introducing new bills is March 1 in the House and March 3 in the Senate, so there is plenty of time for the General Assembly to introduce and consider more positive legislation that will reduce incarceration instead. to increase it. On the very last day of session, lawmakers will have the opportunity to choose the path that creates a stronger Commonwealth or the path that continues to harm us all. The General Assembly should build on the victories of the last session by moving away from harsher and longer criminal penalties that do not serve Kentucky and enacting transformative legislation that will help Kentucky communities prosper.
Carmen Mitchell is a policy analyst at the Kentucky Center for Economic Policy.