Last week Kentucky’s Public Advocate Ed Monahan testified to the Interim Joint Committee on Judiciary that the state needs to reform its Persistent Felony Offender (PFO) laws. This is also an issue under consideration by the state’s Criminal Justice Policy Assessment Council. So what is PFO and what changes are needed?
Overview of PFO
Kentucky’s PFO law provides prosecutors with the option of enhancing a felony offender’s sentence if he/she has previously been convicted of any felony crime (if the sentence has been completed within the past five years, the offender is on probation, parole, etc. from the felony conviction or if he/she is in custody or has escaped from custody). PFO 2nd degree applies to felony offenders with one previous felony and PFO 1st degree applies to those with at least two previous felonies. This means, for instance:
- With a PFO 2nd Degree sentence enhancement (which applies to offenders 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 offenders with at least two felonies) 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.
The PFO enhancement must be applied if the prosecutor pursues it.
According to Kentucky’s Department of Public Advocacy, Department of Corrections data show:
- 3,738 inmates in Kentucky are serving PFO sentences, 16 percent of inmate population.
- Average PFO sentence is 23 years.
- Average non-PFO sentence is 11 years.
Problems with PFO Law in Kentucky
Among the most important criticisms of Kentucky’s PFO law is that it is overly broad — one of the broadest in the nation — resulting in too many Kentuckians who have committed non-violent offenses, serving very long sentences. These sentence enhancements have also been one of the greatest contributors to the state’s too-large and growing inmate population, which means that a criminal justice reform package needs to include changes to the PFO in order to have a significant impact on reducing the prison population and its associated costs.
As described by former UK 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.”
Lawson writes that the overly broad reach of Kentucky’s PFO law “authorizes lengthy prison terms for offenders who pose very little (and oftentimes no) threat to public safety.”
A third of Kentucky’s PFO inmates committed the lowest level felony, a Class D felony, that alone (without a PFO enhancement) would carry with it a 1 to 5 year sentence. The average sentence for these PFO inmates is 12 years.
Actual PFO cases that illustrate some of these issues include:
- A 15 year sentence for stealing an expensive vehicle after prior Class D felonies.
- A 10 year sentence for cutting a hole in a convertible top with intent to steal items in the vehicle.
- A 60 year sentence for trafficking oxycodone and morphine.
According to the Department of Public Advocacy, in 2014 the state spent $65.4 million to incarcerate nearly 2,967 individuals serving PFO-enhanced sentences for non-violent offenses, with the average sentence of these individuals being more than 20 years. By the end of their sentences, the total cost to the state will be more than $1.3 billion.
Proposed Reforms to PFO Law
The Department of Public Advocacy’s recommendations to address some of the issues in Kentucky’s PFO law include:
- Eliminating PFO enhancements for Class D felonies or at least non-violent Class D felonies.
- Eliminating PFO 2nd Degree so that someone who has committed just one prior felony offense isn’t punished for being a “persistent” felon.
- Requiring that a prior felony that makes a felony offender eligible for PFO be serious enough to have resulted in incarceration rather than probation.
- Reforming the PFO enhancement — instead of raising the classification of the offense (i.e., from Class D to Class C) — so that a Class D felony sentence could be enhanced to 3 to 5 years instead of 5 to 10.
- Making PFO enhancement discretionary with the judge or jury; currently it must be applied if the prosecutor pursues it.
Reforming the state’s PFO law would mean fewer non-violent offenders in Kentucky serving long sentences. It would also have a big impact over time in reducing the state’s growing inmate population and associated corrections spending and should be included in the CJPAC’s recommendations.