By Kyle Ellison
February 6, 2020 (Revised October 12, 2020)
In his final days in office Governor Bevin issued 650 pardons, several of which were highly controversial. We should think about the remaining 37.000 people who remain in Kentucky’s prisons and jails.
Over the 220 years Kentucky has had a prison system, pardons have often been used as an emergency measure to resolve the perpetual problem of prison overcrowding. During the fourteen years after the Civil War ended in 1865, Kentucky’s prison population grew 450% (sixty-seven percent of the 951 inmates were black). Meager state funding was appropriated to care for these inmates. In 1872-73, Governor Preston Leslie pardoned one-third as many inmates as entered the penitentiary. In 1876, a resolution of the General Assembly urged Governor James McCreary to pardon enough convicts to bring their number to a “reasonable proportion” to the number of cells. Issuing pardons was more economical than enlarging the prison. Reports in the Courier-Journal note that by 1879, three Kentucky Governors had pardoned a total of at least 1,195 inmates causing widespread criticism fueled by partisan politics.
In 1880, inmate living conditions in Kentucky State Penitentiary, at Frankfort, were atrocious after 55 years under the private control of the Lease System in which the legislature elected lessees who ran the penitentiary and got rich off inmate labor. Lessees used their gains to elect legislators who would not force them to improve inmate living and working conditions. By1878, most of the inmates had scurvy; 106 died that year.
When Governor Luke Blackburn, a physician, took office in 1879, he formed a committee of all the doctors in the legislature that toured the penitentiary (which was across the street from the governor’s mansion). Within three days,160 inmates were pardoned. Over his 4-year term, Governor Blackburn became known as “Lenient Luke” because he pardoned a total of 850 inmates, leading to high profile discussion throughout the state with various newspapers taking sides. Even with continued pardons, the 1892 inmate population was 800% higher than in 1865, with an incarceration rate of 74 inmates per 100,000 citizens.
From 1922 to 1935, the number of prisoners tripled. In 1926, when Governor Fields complained that he was spending 90 % of his time on pardons, the legislature created the office of Commissioner of Pardons. In 1931, Governor Flem Sampson pardoned 187 inmates the day before he left office. Kentucky’s two prisons were so crowded that county jails were asked to stop sending new inmates. The prisons were at double capacity in 1935 when Governor Ruby Laffoon pardoned 558 inmates. Kentucky’s incarceration rate was 161 inmates per 100,000 citizens, which was three times the national average and double the rate in 1900.
When the Great Flood of 1937 destroyed the prison at Frankfort, a new State Reformatory for men was built at LaGrange and the first separate women’s prison was constructed near Pee Wee Valley. In 1940, Kentucky had 4,024 inmates. By 1970, the inmate count dropped to less than 3,000 and totals did not exceed 1940 totals until after 1980. The causes for this decrease deserve further study.
The “War on Crime” began in the mid 1970’s. Legislators used “tough-on-crime” themes to get elected. During the 1980’s lawmakers turned scores of misdemeanors into felonies and passed wholesale sentence increases. Template legislation for longer sentencing was developed by The American Legislative Exchange Council (ALEC), a think tank partly financed by Core Civic, a private prison company, and vendors who sell goods and services to prisons or jails. This is emblematic of the “prison industrial complex”.
Between 1980 and 1990, the inmate population doubled and almost doubled again in the 1990’s. The Kentucky Department of Corrections budget grew from $50 million in 1982 to $117 million by 1988. Today there are 600% more inmates than in 1980 with a $628 million budget projected for next year. This extraordinary growth rate took root in the increasingly restrictive sentencing legislation passed since 1980. In 1938, three quarters of the inmates had a sentence of five years or less. In 2018, seventy percent of inmates were serving 10 years or longer. Due to mandatory sentencing restrictions, the percentage of inmates paroled today is half the rate of the early 1930s.
From 1980 to 2005, Kentucky built five new prisons, significantly enlarged five others, and sent inmates to three private prisons, but there was still not enough bed space. Felony-sentenced (state) inmates backed up in county jails (as they had in the 1930’s) and served time alongside misdemeanor and pre-trial (county) inmates. The state pays about $13,000 per year to keep an inmate in a county jail, while the average cost for a state prison bed is $27,707.
Both state prisons and county jails were in desperate straits in 2002 when Governor Paul Patton, citing lack of revenue, pardoned 895 inmates. Governor Bevin’s 650 pardons were enacted under similar circumstances. If Governor Andy Beshear pardoned 1,000 inmates, this would save our state about $20 million per year.
Kentucky has not built a new prison since 2005, but many counties have built huge new jails or double bunked the existing jail. Currently, the twelve state prisons hold only 55% of our state inmates (12,270). The 10,780 remaining state inmates are in county jails serving time along-side the 13,500 inmates already there. Regardless of bed capacity or space, county jails make money housing state and federal inmates. In many county jails, inmates are sleeping on the floor or in areas designed for other uses. Besides being overcrowded, jails lack vocational, educational, treatment, and meaningful recreational programs. Prisoners are seldom allowed outdoors. The state cannot enforce bed space requirements because there is no place to house the inmates if they do. Over 5,600, or 24 % of state inmates, are serving sentences of 5 years or less in county jails. These are the “low level offenders” who have the best chance of benefiting from programs offered only in state prisons. Most of the jails are crowded, but the twelve most crowded jails average 193% over capacity. If horses were treated like this, the public would be outraged.
For female inmates, the situation is worse. For every one woman held in a state prison, there are two women serving state time in a county jail. Kentucky’s incarceration rate for women has doubled since 2000 making it the highest in the U.S. except for Oklahoma.
Like the lessees in the 1800’s, the 120 county jailers seem immune to state regulation. Kentucky is the only state to elect county jailers. One third of the counties no longer have jails; paying their salaries wastes $2 million a year. Legislative attempts to remedy this have failed.
The profit motive drives many of the public policies surrounding prisons. Last year, Core Civic gave the maximum $4000 to Bevin’s campaign last year plus $330,000 to the Republican Governors Association and $100,350 to the Democratic Governors Association-the two groups who spent the most money in the campaign. Jailers, like private prisons, hire lobbyists to represent their interests in the legislature. The jail lobby is a significant force competing with private prisons because they need the per diem funds from the state for the county budget. A similar dynamic happened in the 1870’s when the lessee at the penitentiary in Frankfort, who made money from inmate labor, opposed building a new penitentiary in another part of the state that would move his inmates and hurt his profits.
In 2020, Kentucky has 23,460 state inmates, or 520 for every 100,000 citizens. This is seven times the rate in 1889, more than triple the rate in the 1930’s, and is the ninth highest rate in the U.S. In Kentucky, 70% of state inmates are serving time for non-violent crimes. In addition to inmates, there are 50,000 people on state probation or parole. In 2017, over 40% of the 21,239 inmates admitted to Kentucky prisons were probation or parole violators.
Some of our prisons are short-staffed with turnover rates as high as 50%. Probation and parole officers are filling in for correctional officers. The state will have to invest in pay raises and retirement benefits to attract qualified employees. Our prisons have been affected by riots, fires, and floods and a tornado came close. The penitentiary at Eddyville is near the New Madrid fault line. If anything goes wrong, Kentucky has no place to send inmates. All the states surrounding Kentucky have lower incarceration rates and might have space, but it would be very expensive.
Kentucky is not going to pardon its way out of the prison/jail crisis. As long as “tough on crime” controls voters, the legislature will continue to pass laws that create more inmates than it is willing to pay for.
There are no quick fixes for reducing sentences and lowering the crime rate. Real change will take long term reformation of public education to offset the daily dose of crime headlines. If not for the press, our prisons would be completely “out-of-sight, out-of-mind”. The Kentucky Department of Corrections has a lot of information on line, but the average citizen is unable to see the big picture buried in the jargon and mountains of data. No one is responsible for pro-actively educating the public. The academic community could partner with private foundations and get this done. Retired professionals–judges, lawyers, correctional employees, police, professors and reporters could be resources for such a group. Prisons could be a regular feature in the news.
Sensational headlines have never produced lasting reforms of the prison system. The jails/prisons and their vested interests continue to call the shots in the legislature. Governor Beshear is calling for changes in sentencing laws for low level drug offenders and adding addiction services. (Drug offenders make up about 25% of inmates in state prisons). He also proposes making it harder to revoke probation or parole. Much of this has been done in the recent past, but inmate numbers keep rising. Even pardons might be limited by recently introduced legislation.
Substantial sentencing reform must be achieved before funds will be available for crime prevention and pressing human needs. Missouri passed sentencing reform in 2019 and is seeing a substantial reduction of inmate totals. Reforms have to be planned many years beyond the election cycle. Without sustained proactive education about prison issues, the public will not understand, support, or vote for real changes. This is the “reform” that has never been tried before.
What we can do right now is to let our representatives know that “tough on crime” is being oversold and is not cost effective. Ask your legislator to reduce sentence length and mandatory sentencing for non-violent crimes. If legislators fail to act, the governor should reconsider the pardoning process.
Kyle Ellison worked for the Kentucky Department of Corrections as a Probation and Parole Officer from 1972 to 1981, and as a prison and jail personnel trainer from 1981 to 1988. While training staff throughout the state, he collected information, photos and interviews about Kentucky’s prison history. In 1988 he created a traveling photo exhibit for the Kentucky Historical Society. Today he uses an extensive collection of historical photographs for public presentations and discussions of needed criminal justice reform. He examines how the past is being reflected today and is working on a book about the history of Kentucky’s prisons. Kyle may be reached at firstname.lastname@example.org
Partial List of References:
Archived and recent reports by the Courier-Journal has enabled a substantial amount of research for this project. These can be accessed through the Louisville Free Public Library.
Kentucky Department of Corrections: Weekly Jail Count Sheet – https://corrections.ky.gov/About/researchandstats/Pages/WeeklyJail.aspx
Kentucky Department of Corrections: Inmate Count Sheet – https://corrections.ky.gov/About/researchandstats/Pages/dailycount.aspx
Kentucky Department of Corrections: Probation and Parole Population Report – https://corrections.ky.gov/About/researchandstats/Documents/Pop%20Report/2020/04-06-20.pdf
U.S. Department of Justice. National Criminal Justice Reference Service. Sept 1988. Changing Faces-Common Walls. Kentucky Prison History Chronology 1800-1988—44 pages. Written at Kentucky Department of Corrections Training in 1988 by Kyle Ellison. https://www.ncjrs.gov/pdffiles1/Digitization/113548NCJRS.pdf
Kentucky Department of Corrections: Annual Report 2018 – https://corrections.ky.gov/About/researchandstats/Documents/Annual%20Reports/2018%20Annual%20Report.pdf
Kentucky Department of Corrections: Annual Reports and Research – https://corrections.ky.gov/About/researchandstats/Pages/default.aspx
Kentucky Department of Corrections: Information Technology Inmate Profiles. January 15, 2020 https://corrections.ky.gov/About/researchandstats/Documents/Monthly%20Report/2020/Inmate%20Profile%20%2001-2020.pdf
Legislative Research Commission Report #430, State Inmates Housed in County Jails in Kentucky. Nov 10, 2016 https://apps.legislature.ky.gov/lrc/publications/ResearchReports/RR430.pdf
Report from the State Auditor. Kentucky Jails, A Financial Overview. 2006 Vol II. Critt Luallen, Auditor of Public Accounts
Kentucky Legislative Ethics Commission. Employer Expense Summary. Kentucky Jailers Association 2015 to 2019
State/Executive Branch Budget. Part I Operation Budget. Lists projections for KDOC for the rest of FY 2019 and the next two years. Page 54
Kentucky General Assembly 2020 Regular Session Index Headings. Corrections and Correctional Facilities, State. SB#97. Corrections Impact Statement. Lists current per diem average cost for state prisons and county jails
PFO Law Reform, A Crucial First Step towards Sentencing Sanity in Kentucky. Robert G. Lawson. Kentucky Law Journal Vol 97 No 1 2008-9 (UK Law School)
Turning Jails into Prisons—Collateral Damage from Kentucky’s War on Crime. Robert G. Lawson. UK Knowledge. Law Faculty Publications 2006
Difficult Times in Kentucky Corrections—Aftershocks of a Tough on Crime Policy.t Robert G. Lawson UK Knowledge. Law Faculty Publications 2005
Keeping the Lights On- Incarcerating the Bluegrass State. Vera Institute. Jack Norton and Judah Schept –Eastern Kentucky University professor. (counties making money from jails)
Listing of Kentucky Center for Investigative Reporting articles about Kentucky jails
Beleaguered Department of Corrections Names New Commissioner. KCIR.R.G. Dunlop-2-19-16
Jail Reforms Languish in Last days of Legislative Session . KCIR R.G. Dunlop. April 7, 2016.
Kentucky Jailers Association Mostly Silent on Jail Issues, Accountability. KYCIR. Brendan McCarthy Dec 29, 2015. https://kycir.org/2015/12/29/kentucky-jailers-association-mostly-silent-on-jail-issues-accountability/
The Times Picayune. “Louisiana Is the World’s Prison Capital” by Cindy Chang. May 13, 2012
National Institute of Corrections. State Statistics Menu. 2017 totals for probation and parole
BOJ Statistics Prisoners in 2007 bulletin
BOJ Uniform Crime Reporting Statistics. 2014.
BOJ Correctional Populations in US. Listing of articles. April 26, 2018.
Prison Policy Initiative. Tracking growth in women’s incarceration
Prison Policy Initiative. Correctional Control 2018. Incarceration and Supervision by State
Sourcewatch.org. Information about the connection between American Legislative Exchange Council and Core Civic https://www.sourcewatch.org/index.php/CoreCivic
Corporate Sponsored Crime Laws by John Biewen 2002
The Dirty 30: Nothing to Celebrate About 30 Years of Corrections Corporation of America. Grassroots Leadership. https://grassrootsleadership.org/cca-dirty-30#19
The System Needs to Change: Missouri’s governor signs criminal justice reform bills. Crystal Thomas. Kansas City Star. 7-9-19. The bill reduces mandatory sentencing minimums and notes that there are 5000 fewer inmates than in 2017
A new Missouri law could free hundreds of people from mandatory prison terms. David Lieb, Chicago Tribune July 9, 2019 https://www.chicagotribune.com/nation-world/ct-nw-missouri-mandatory-prison-sentences-20190709-dhor2ovw4jgdbd2onycmmkvhom-story.html
New Law Summary 2019 Missouri Minimum Prison Term Reform. HB192 2019. Families Against Mandatory Minimums. https://famm.org/wp-content/uploads/MO-HB-192-Enacted-Bill-Summary.pdf
PolitiFact. Fact checking prison capacity in Missouri. Lauren Richie. May 8, 2019
These are available at Louisville Free Public Library:
A History of the Kentucky Penitentiary System 1865 to 1937. Dissertation by Robert G. Crawford, 1955. University of Kentucky. This is the “Holy Grail” for this subject.
The Kentucky Encyclopedia. University Press of Kentucky, 1992. Prisons. Kyle Ellison, pages 742-743. Also: Kentucky State Reformatory by Kyle Ellison, page 514; Kentucky State Penitentiary by Bill Cunningham. Page 513
Castle: The Story of a Kentucky Prison by Bill Cunningham 1995. McClanahan Publishing House Eddyville KY (256 pages) Bill Cunningham grew up in the shadow of the Kentucky State Penitentiary in Eddyville and is a retired Kentucky Supreme Court Justice.
Decades Behind Bars. A 20-Year Conversation with Men in America’s Prisons. Gaye D. Holman McFarland and Company. 2017
A Report on the History and Mode of Management of the Kentucky Penitentiary from its origin in 1798 to March 1,1860. William Sneed M.D. Kentucky Documents 1859-60. -641 pages.
Annual Board of Prison Commissioners Reports to the Governor of The State of Kentucky for: 1899, 1902, 1903, 1904, 1906, 1910, 1911, 1917.
The City of Dead Souls by Lucian Rule, Chaplain of the Indiana Reformatory (in Clarksville IN)
Centennial Story of the Old Kentucky State Prison (1800-1920) and the Old Prison South, Indiana (1822-1922). This prison is known as the old Colgate Building.
Behind The Gates Of Blasted Hopes. A Report on the State Penal Institutions by J.M. Watters 1936