Frankfort, KY – In order to save money, the 2008 General Assembly inserted language in the state budget allowing for the early release of some state prison inmates, based on parole credits. To date, 7,000 prisoners and parolees have been set free under the program. Only six have returned to prison, but not for violent crimes. Most of their new offenses were drug-related. But the program has angered some prosecutors, who say judges and juries, not the Department of Corrections, should decide how long inmates serve. Attorney General Jack Conway agrees, and last fall sued to halt the program. Arguments in the case have now reached the Kentucky Supreme Court, where Assistant Attorney General Hays Lawson appeared to be met by some skeptical justices. Consider this exchange between Lawson and Chief Justice John Minton.
"Part of what Judge Shepherd's point is, to shut the barn door, it's way too late," said Minton. "And that's part of the equitable consideration, is it not?"
"Well, if the DOC is violating the law, I don't see that's a reason, if nine cows have already gotten out, to let the 10th cow go," replied Lawson.
Lawson wants the high court to reverse an order from Franklin Circuit Judge Phillip Shepherd, allowing the early release program to continue until the merits of the case are heard. But Justice Mary Noble wonders whether the courts should even be questioning legislative intent.
"Doesn't the act itself basically, if not say outright, clearly imply that, look, this is a for-now emergency thing and we're doing it to save money because we're in financial straits? asked Noble. "So, isn't the DOC's reading of this consistent with legislative intent?"
No, said Lawson, it is not.
"The DOC is deriving or implying retroactive intent based not on any language in the bill itself, not on any language in the street credit provisions themselves, but based solely on budgetary decisions by the General Assembly," replied Lawson.
By that he means, the Department of Corrections is applying parole credits retroactively, by giving inmates credit for parole served before the law was changed in 2008. But Justice Daniel Venters says Kentucky's constitution grants the governor - the state's chief executive - broad pardon and parole powers.
"The Department of Corrections, which is under the control of the executive, chooses for whatever reason it may have, to release prisoners early," said Venters. "What other branch of government has any power to say anything about that, or reverse that decision?"
Lawson says the issue was raised in a Pulaski Circuit Court case challenging the early release program, but was not ruled upon by Judge David Tapp. However, Tapp did order a halt to the program, and made his ruling applicable statewide. By what authority, asks Justice Lisabeth Hughes Abramson?
"I've read it a couple of times," said Abramson. "I cannot find any reference to his authority."
"There was no authority referenced to the court in the final briefs on the matter," replied attorney Wil Fogle. "The only thing that was requested was that the court act boldly and issue a statewide injunction."
That's corrections department attorney Wil Fogle, arguing for reversal of Judge Tapp's order. Joining him in that effort was attorney Wesley Duke, who says the high court should also uphold Judge Shepherd.
"The actual motion currently pending before the court should be denied," said Duke. "And this matter should return to the Franklin Circuit Court for a final adjudication on the merits."
The supreme court made no immediate ruling, which means - at least for now - the early release program may continue, except in Judge Tapp's judicial district.