For the last 40 years, Kentucky’s persistent felony offender (PFO) law has added decades to prison sentences of convicted Kentuckians, contributing significantly to Kentucky’s much-too high incarceration rate. Advocates have long identified changing Kentucky’s PFO statute as one way to reduce incarceration, and there is an opportunity for the 2023 General Assembly to do that by passing Senate Bill 225 (SB 225).
Senator Brandon Storm’s SB 225 seeks to enable juries to reject application of PFO during sentencing, among other critical changes. It would reduce incarceration in Kentucky and cut back on harmful long sentences that can result in financial instability, poorer mental health, more substance use and difficulty acquiring employment and housing. The bill passed committee last week and now heads to the Senate floor.
PFO law is a sentence enhancement that increases time behind bars
Kentucky’s PFO law, created in 1974, provides prosecutors with the option of enhancing the sentence for a person convicted of a felony if they have previous felony convictions.
According to 2021 data from the Department of Corrections, 3,298 people in Kentucky were serving PFO sentences at that time. Of that total number, only 16% were serving sentences for violent crime.
A recent Courier Journal series vividly described how Kentucky’s PFO law has ruined lives and scarred families even while fueling the dramatic increase in Kentucky’s prison population.
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.”
PFO can increase a Class D felony sentence from 1-5 years to an average of 12 years
Of all the people in Kentucky serving PFO sentences, a snapshot of the prison population in 2021 shows 27% were 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 for a Class D felony without a PFO enhancement, which would carry with it a one- to five-year sentence, and the average sentence for Class D PFO enhanced sentences, which is 12 years.
How long a sentence is lengthened because of PFO depends in part on the type of PFO conviction. Current law classifies PFO as either first degree or second degree. PFO second degree applies to individuals with one previous felony conviction provided that at least one of the following is true: the sentence for the previous conviction was completed within the past five years, the person is on probation, parole, or another type of supervised release from the previous conviction, or the person is in custody (or has escaped from custody) due to the previous conviction.
With a PFO second degree sentence enhancement, a Class D felony with a one-to-five-year sentence becomes a Class C felony with a five-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.
PFO first degree applies to those with at least two previous felonies convictions. One of those convictions must fall within the five-year criteria, while the second conviction can have occurred anytime in the person’s lifetime.
With PFO first degree, a Class D felony charge becomes a Class B with a sentence of 10 to 20 years and a Class C felony charge becomes a Class B with no parole eligibility for 10 years.
Although a simple drug possession charge (a Class D felony carrying one-to-three years of incarceration) 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. This means, for instance, a possession conviction in an individual’s past can be the “prior felony” used as the basis to add PFO to a new charge in the future.
If a prosecutor applies the PFO sentence enhancement, neither a judge nor a jury has a choice when it comes to sentencing
Under current law, PFO enhancement must be applied if the prosecutor pursues it, meaning judges and juries have no discretion in sentencing. As a result, a judge or jury cannot overturn the prosecutor’s application of PFO even if they find it excessive. Prosecutors often use this aspect of the PFO law as leverage.
PFO laws were enacted for “extraordinary use,” but are used more frequently than intended as a bargaining tool by prosecutors to encourage those charged with crimes to accept plea offers. Prosecutors may threaten to add the PFO charge if a criminal defendant insists on going to trial, meaning if the person was convicted, they would be facing enhanced penalties. To avoid this, defendants accept pleas that they may not otherwise. Or a prosecutor may add the PFO charge initially, and then dismiss it once the defendant accepts the plea offer. In fact, more than two-thirds of people who faced PFO charges saw the charge dismissed as a result of a guilty plea.
PFO sentence enhancement negatively impacts parole eligibility
In non-PFO situations, individuals become eligible for parole after a certain percentage of their sentence is served. For instance, people convicted of most nonviolent felonies become eligible for parole after serving 20% of their sentence, while the number is 85% for most violent crimes.
In cases of PFO, however, parole eligibility is much more complicated. Individuals serving PFO 1st degree sentences for nonviolent crimes are only eligible for parole after serving a minimum of 10 years in prison.
PFO law has led to increased budgetary and human costs
Currently, Kentucky is ranked seventh in the world for our incarceration rate, and the state is spending an extraordinary $722 million a year on corrections through our budget. At the same time PFO is helping to drive up the state’s high rate of incarceration, these longer sentences are associated with many harms.
Research 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.
SB 225 would reduce PFO harms
SB 225 proposes the following important changes to PFO:
- Judges and juries would be able to make a decision to impose the enhanced sentence (and if so, for how long).
- For instance, an individual convicted of a class C felony, which carries five-to-10 years, and convicted of being PFO second degree, would be looking at an automatic enhancement of 10-20 years. However, the jury or judge would be able to choose to sentence between the range of 5-20 years instead of automatically having to apply the enhanced penalty.
- Individuals serving a PFO-enhanced sentence would be eligible for parole at the same length of time as non-PFO offenders, as long as the underlying crime for which they stand convicted is non-violent and not a sex offense.
- Simple drug possession convictions would no longer qualify a person for a PFO sentence enhancement if they are charged with a subsequent felony.
- These policy changes (parole eligibility and exclusion of prior simple drug possession convictions from triggering a PFO enhancement) apply retroactively to people currently serving longer PFO sentences.
The Kentucky General Assembly should move forward with the passage of SB 225. The bill would result in fewer Kentuckians serving long sentences due to PFO, which would help to reduce incarceration in the commonwealth.