Kentucky’s Persistent Felony Offender (PFO) law is a punitive sentencing policy that emerged during the beginning of the so-called War on Drugs. While originally intended as a measure to deter crime and target “major” criminals such as “kingpin” drug dealers, PFO has instead just resulted in more Kentuckians being locked up for longer periods of time, contributing to Kentucky having one of the highest rates of incarceration in the nation. Examples of absurd sentences given to Kentuckians due to PFO include:
- A 10-year sentence for cutting a hole in the top of a convertible.
- A 20-year sentence for fighting an officer on the porch of the sentenced person’s own home.
- A 10-year sentence for stealing a chainsaw (that was not used in a crime) from a storage shed.
- A 20-year sentence for missing court after a decades-long battle with substance use disorder.
- A 10-year sentence for using $190 in fake currency to purchase Nike shoes.
- A 60-year sentence for selling $100 in drugs.
It is time for lawmakers to stem one of Kentucky’s drivers of incarceration by addressing PFO statutes.
Overview of PFO
Kentucky’s PFO law, implemented in 1974, provides prosecutors with the option of enhancing the sentence for a person convicted of a felony if they have previously been convicted of any felony offense. PFO 2nd degree applies to individuals with one previous felony conviction (with the condition that either the sentence has been completed within the past five years, the person is on probation, parole, or another type of supervised release from the felony conviction, or the person is in custody or has escaped from custody). PFO 1st degree applies to those with at least two previous felonies (one of which must fall within the five year criteria, while the second conviction can have occurred anytime in the person’s lifetime). This means, for instance:
- With a PFO 2nd degree sentence enhancement (which applies to people with one previous felony) a Class D felony with a 1 to 5 year sentence becomes a Class C felony with a 5 to 10 year sentence; a Class B felony with a 10 to 20 year sentence becomes a Class A felony with a sentence of 20 years to life in prison.
- With PFO 1st degree (which applies to people with at least two felony convictions) a Class D felony charge becomes a Class B with a sentence of 10 to 20 years. A Class C felony charge becomes a Class B with no parole eligibility for 10 years.
According to Kentucky’s Department of Public Advocacy, Department of Corrections (DOC) data shows that in 2021:
- 3,014 people in Kentucky were serving PFO sentences, 16% of the DOC incarcerated population at the time.
- The average length of PFO sentences was 23 years, compared to the 14 year average sentence length of all people incarcerated.
Kentucky’s PFO laws contribute to increased incarceration
Currently, Kentucky is ranked 7th in the world for our incarceration rate, with a 2022 enacted corrections budget of $626 million. PFO sentence enhancements have been one of the greatest contributors to Kentucky’s large incarcerated population. In current law, PFO enhancement must be applied if the prosecutor pursues it, meaning judges and juries have no say as people are getting swept into harsh sentences with no room for intervention. As described by former University of Kentucky law professor Robert Lawson, Kentucky’s PFO law “clearly heads the list of tough-on-crime measures that have filled prisons and jails beyond capacity, pushed the state’s corrections budget off the charts, and changed the balance of power over punishment in ways that threaten the basic fairness of the justice system.” Research also shows that evidence is mixed on the effects of giving people long sentences on reducing crime, and that the incapacitation effect of removing people who commit crimes from communities through incarceration has little impact once incarceration is already high. However, lengthier sentences can result in financial instability, poorer mental health, more substance use and difficulty acquiring employment and housing.
Of all the people in Kentucky serving PFO sentences, 27% are serving for a Class D felony, which is the lowest-level felony and includes drug use crimes. Research shows that any amount of incarceration increases the likelihood that people with substance use disorder will suffer harms, including overdose and death. While any amount of incarceration is harmful, there is a stark difference between a sentence without a PFO enhancement, which would carry with it a 1- to 5-year sentence, and the average sentence for these Class D PFO enhanced sentences, which is 12 years. NOTE: Although a simple possession charge currently cannot be enhanced by PFO, a prior possession conviction can be used as the basis for a PFO enhancement in a subsequent felony case.
Proposed changes to PFO law
After a 2021 session marked by positive steps towards reducing the harm of the criminal justice system, the General Assembly should build on that momentum in the 2022 legislative session by addressing PFO. Barring the full elimination of Kentucky’s harmful PFO law, the following recommendations developed by Kentucky’s Department of Public Advocacy would be most impactful in addressing some of the most egregious issues:
- Eliminating PFO enhancements for Class D felonies.
- Creating exemptions for drug-related felonies and felonies where substance use disorder is a factor.
- Exempting of Class D felonies as triggering offenses.
- Eliminating PFO 2nd degree so that someone who has been convicted for just one prior felony offense is no longer subjected to a PFO enhancement.
In addition to making changes to the PFO law directly, another modest but important step in the right direction in reducing harm would be making PFO enhancement discretionary with the judge or jury instead of making it mandatory if the prosecutor pursues it. Legislation to make this change has been proposed the previous two legislative sessions (Senate Bill 235 2020 and Senate Bill 224 2021) by Sen. John Schickel.
