Program Review and Investigations Committee





<MeetMDY1> November 12, 2009


The<MeetNo2> Program Review and Investigations Committee met on<Day> Thursday,<MeetMDY2> November 12, 2009, at<MeetTime> 10:00 AM, in<Room> Room 131 of the Capitol Annex. Senator John Schickel, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator John Schickel, Co-Chair; Senators Dan "Malano" Seum, and Katie Kratz Stine; Representatives Dwight D. Butler, Leslie Combs, Ruth Ann Palumbo, Arnold Simpson, and Ken Upchurch.


Guests:  Commissioner LaDonna H. Thompson; Rodney Ballard, Director, Division of Local Facilities; Kentucky Department of Corrections.  Victor Morris, Northpoint Training Center.  Sally Sugg, Associate Commissioner; Connie Lester, Director, Division of Scholastic Assistance; Kentucky Department of Education.


LRC Staff:  Greg Hager, Committee Staff Administrator; Rick Graycarek; Christopher Hall; Colleen Kennedy; Lora Littleton; Jean Ann Myatt; Sarah Spaulding; Katherine Thomas; Cindy Upton; Stella Mountain, Committee Assistant.


Senator Schickel said today was the deadline to submit new study topics.

Cindy Upton presented the report Cost of Incarcerating Adult Felons. She said the objectives of the study were to 1) describe the Kentucky correctional system and its funding and expenditures and compare it to other states; and 2) compare methods used by Kentucky to methods used by other states to offset the cost of incarceration and make prisons more self-sustaining. She said the report focused on the direct cost to the state of incarcerating adult inmates in its custody and that balancing financial cost against other factors is a policy decision to be made by the General Assembly.


She said the Kentucky Department of Corrections houses state inmates in 13 state prisons (54 percent of state inmates, fiscal year 2009 cost of $245.9 million), 3 contracted prisons (5.5 percent, $20.6 million), 76 local jails (34.1 percent), and 20 contracted halfway houses (6.1 percent). Over the past 10 years, the state inmate population increased by almost 42 percent, the population on probation or parole doubled, and the cost to the department increased by more than 53 percent to $451 million. The large inmate population is due in part to an increasing number of offenses defined as felonies, longer sentences for persons defined as persistent felony offenders, and a 42 percent recidivism rate.


She stated that national studies have shown that the financial cost of incarcerating nonviolent offenders is greater than the cost of alternatives. As of June 30, 2009, the state had 9,430 inmates—46 percent of all inmates—who had been convicted of nonviolent property and drug offenses, some as persistent felony offenders. The estimated cost for FY 2009 to incarcerate them was $136.2 million. It is unknown how many of them would be candidates for community supervision. To illustrate the upper limit of potential savings of an alternative to incarceration, if all 9,430 could have been supervised in the community by probation and parole officers, a conservative estimate is that the cost would have been $14.5 million for the year, more than $121 million less than their incarceration cost. Recommendation 1.1 is that the General Assembly may wish to consider reducing the penalties for nonviolent offenses and amending KRS 532.080 to apply the persistent felony offender sentences only to persons convicted of violent offenses.


Ms. Upton said that the U.S. Department of Justice has estimated that 61 percent of inmates in state prisons and 44 percent of inmates in local jails have a mental health problem. About 75 percent of these inmates also met criteria for substance dependence or abuse. National research shows that participants in drug and mental health courts have lower recidivism rates than persons who receive treatment as usual. Recommendation 1.2 is that the General Assembly may wish to consider providing funding to expand the use of drug and mental health courts.


She noted that although Kentucky’s incarceration cost is high, at 2.4 percent of state spending in FY 2007, it was lower than the national average and lower than all but one of nine states with comparable numbers of inmates.


She said that federal and state constitutions, laws, and court rulings require the department to provide inmates a safe and sanitary environment, physical and mental health care, recreation, and access to religious services and a law library or free legal assistance. Compliance is monitored for the state and contracted prisons by auditors from the American Correctional Association. Monitors from the Department of Corrections ensure compliance by jails that house state inmates.  


She said the department’s cost of medical care for inmates in prisons was $51.4 million in FY 2009. Costs are likely to increase as the inmate population ages. Nationally, more persons with mental illness are housed in correctional facilities than in mental hospitals and other institutions. In FY 2009, the department’s cost of mental health treatment was $10.7 million.


Ms. Upton stated that the three contracted prisons are operated under contract with Corrections Corporation of America. The cost to the department is the negotiated rate per day, some costs of inmate medical care paid by the department, and contract monitoring costs. KRS Chapter 197 requires contracted prisons to provide a level and quality of programs at least equal to those provided by state-operated prisons that house similar numbers of inmates and at a cost that provides the state with savings of at least 10 percent of the cost of housing inmates in similar prisons and providing similar programs to those types of inmates in state prisons. The statute has been difficult to implement because state and contracted prisons and the inmates they house are not similar.


She explained that funding of local jail operations is shared between counties and the state. Statute requires the department to pay each county a monthly allotment for operating expenses, regardless of whether the jail houses state inmates or is closed.  She said the state is required to pay the county a per diem for each state inmate after the person is sentenced. In FY 2009, the department paid $13.3 million in allotments and $94.5 million in per diems to the counties.


She said county officials have expressed concern that the housing of inmates before they are sentenced or plead guilty to a felony offense is funded exclusively by the counties, even though the inmates receive credit for time served in jail when sentenced for a felony offense. Recommendation 2.1 is that the General Assembly may wish to consider appropriating funds for the Department of Corrections to pay counties a per diem for incarcerating persons who serve time in local jails before being convicted of a felony offense.


She said that the state’s requirements for inmate work are inconsistent. The Kentucky Constitution requires inmates to work in the prison and allows them to work outside the prison on public works projects. KRS 197.070(1) requires the department to provide employment for all inmates in prisons and to “exhaust every resource at its command” to provide employment for all inmates, which would include state inmates housed in local jails. KRS 196.110(2) requires the department to encourage the employment of inmates in ways that will contribute to their physical, mental, and moral improvement and to meeting the cost of their maintenance. A 1981 judicial consent decree resulting from inmate lawsuits states that an inmate may elect not to work. The department’s position is that it cannot require inmates to work and there are not enough jobs to employ all inmates. About two-thirds of inmates in state prisons have work or other program assignments, such as basic education or vocational training; about one-third have no assignment.


Ms. Upton stated that KRS 197.150 requires the department to pay inmates or their dependents for each day worked outside the prison. The statute implies that inmate earnings from outside work assignments should be used for family support, but no statute or department policy requires the department to withhold money from inmate earnings for family support. KRS 197.047(5) requires the department to specify the amount of compensation an inmate will earn for a governmental services program, which, by definition, is performed outside the prison. No statute requires that inmates be paid for work or educational assignments inside correctional facilities. The department pays inmates who work inside correctional facilities and those who participate in program assignments. In FY 2009, inmates in state prisons, local jails, and halfway houses were paid about $2.5 million for all assignments not associated with Kentucky Correctional Industries. Recommendation 3.1 is if it is the intent of the General Assembly that inmates be paid for working or participating in program assignments inside correctional facilities, the General Assembly may wish to consider specifying in statute whether, to what extent, and for what purpose deductions should be made from inmate earnings.


She noted that all 50 states operate correctional industries, and most states compensate inmates for working in industries. Kentucky inmates earned more than $802,000 from working in correctional industries in FY 2009. Nationally, about $7 million was deducted from inmate earnings in correctional industries in FY 2008. Recommendation 3.2 is that if it is the intent of the General Assembly that inmates working in Kentucky Correctional Industries be paid, the General Assembly may wish to consider specifying in statute whether, to what extent, and for what purpose deductions should be made from inmate earnings.


She said that Kentucky’s correctional industries are not keeping pace with those in other states. The requirement to be self-supporting can hinder expansion into new industries that are profitable in other states because no start-up funding is available from the state. Among 10 states with similar numbers of inmates, Kentucky’s net sales from correctional industries in FY 2008 were the second lowest at $12.1 million (the national average was $34.9 million), and Kentucky was the only state among the 10 to report a decrease in net sales from correctional industries over the last decade. One reason for the decline in sales could be that state agencies purchase items from private vendors or other state agencies that are available from Kentucky Correctional Industries. One possible new industry could be created if prison canteens were operated by Kentucky Correctional Industries rather than being managed by prison wardens. Recommendation 3.3 is the Department of Corrections should conduct a cost-benefit analysis to determine the feasibility of operating prison canteens as a correctional industry. If the results of the analysis are favorable, the department should centralize the canteen operations under Kentucky Correctional Industries.


Ms. Upton said that in FY 2009, 80 inmates worked on Kentucky’s prison farms. The farms had net sales of almost $730,000. Aramark Correctional Services, the food vendor for state prisons, purchases some of the vegetables grown on the farms for inmate meals. Other state agencies do not purchase products from the farms. In Kentucky, inmates are served 3 hot meals a day, 7 days a week. Other states serve fewer meals on some days or do not serve hot food for every meal.


She said that the federal Prison Industry Enhancement Certification Program encourages governments to develop meaningful employment opportunities for inmates by partnering with private industries that need labor. Among the requirements to be certified are legislative approval, payment of prevailing wages to inmates, and a guarantee that inmate employment will not displace private-sector workers. Kentucky is one of 13 states not certified. Of the 37 states that are certified, 28 reported that inmates earned $40.3 million in gross wages in calendar year 2008, of which more than $15.5 million was deducted to offset the incarceration cost, pay restitution, provide support to inmates’ families, and pay taxes. Recommendation 3.4 is the General Assembly may wish to consider authorizing the Department of Corrections to participate in the federal Prison Industry Enhancement Certification Program.


She stated that state inmates can earn credits on their sentences for good conduct, educational accomplishment, meritorious service, and work on governmental services projects. KRS 197.045(1) requires the department to provide an educational credit of 60 days to an inmate who receives a GED, a 2-year or 4-year college degree, a 2-year or 4-year certification in applied sciences, or a technical education diploma. A bill in the 2009 regular session would have expanded the educational sentence credit to treatment programs. Recommendation 3.5 is the General Assembly may wish to consider amending KRS 197.045(1) to award sentence credits to inmates who successfully complete substance abuse programs or other treatment programs that require participation of 6 months or more.


Ms. Upton explained that the financial cost of incarceration should not be the sole measure of how well a prison system is managed. The department has begun using the Performance Based Measures System developed by the American Association of State Correctional Administrators. The system provides standard definitions so that data can be compared between states. But meaningful performance measures have to be developed with input from stakeholders, including Kentucky residents and members of the General Assembly, so the data can be used within the state. Better data on performance could provide critical information to managers of Kentucky’s corrections system and to members of the General Assembly. Recommendation 4.1 is that the Department of Corrections should identify meaningful performance indicators, collect the needed data, and develop benchmarks for prisons and the system. The information should be publicly available.


Senator Schickel said that the report referred to a national correctional policy for recreation. He asked what a national correction policy involves.


Ms. Upton replied that was an unfortunate choice of phrasing.


Senator Schickel said it is an unfortunate choice of phrasing but a common one. The court cases in the report were not from the 6th circuit. There is no national correctional policy and it is left up to the states. He asked if there is any incentive to get inmates to work.


Ms. Upton said the commissioner could better answer that question.


Senator Stine asked if there are estimates of reduction of costs for other public assistance programs if money was deducted from inmates’ pay for family support.


Ms. Upton said specifics are unknown but there would be savings.


Senator Stine asked if there are any constitutional prohibitions on requiring deductions.


Ms. Upton said no.


Senator Seum asked how many inmates in the system are persistent felons.


Ms. Upton said she did not know.


Senator Seum asked about the time frame for a felon to be defined as a persistent felony offender.


Ms. Upton said it is a felony for which the person was incarcerated within the past 5 years.


Representative Palumbo asked how catastrophic medical costs are defined.


Ms. Upton said anything more than $2,000 per inmate, as long as the treatment is necessary.


Representative Palumbo noted there were more grievances against staff in contracted facilities than in state prisons.


Ms. Upton deferred to the department for comment.


Representative Palumbo asked what “all other grievances” from the report meant.


Ms. Upton said it was anything not listed in the table such as food or living conditions.


Senator Stine noted that Northern Kentucky has a pilot mental health court program.


Commissioner Thompson responded to the report.


Commissioner Thompson commented on the recommendations from the report. She said several committees have been considering Recommendation 1.1. In regard to Recommendation 1.2, she said that the department has assisted in funding for projects for mental health initiatives, electronic monitoring projects, and drug courts. She said the department has funded 16 types of these programs.


Commenting on Recommendation 3.1 and 3.2, Commissioner Thompson noted that wages for inmates are already low enough that deductions would reduce the incentive to work. Payments are tied to job performance and completing education and inmates spend their wages at the canteen, which provides money which the department uses for services to inmates. She said the department received a federal Second Chance Act grant to provide reentry assistance to inmates being released. She noted that wages would be higher under the Prison Industry Enhancement Certification Program, which is covered in Recommendation 3.4. She said that under the rules for the program, offenders would pay state and federal taxes and restitution to victims’ families. She agreed with Recommendations 3.3 and 3.5. In regard to Recommendation 4.1, she said the department has been using the Performance Based Measures System developed by the American Association of State Correctional Administrators.


Senator Seum asked about prison industries contracting with outside companies.


Commissioner Thompson said that the state prisons are not able to contract outside.


Senator Seum asked if prisons in other states contract with outside companies and why Kentucky state prisons do not.


Commissioner Thompson said prisons in other states do contract with outside companies.  Doing so in Kentucky would require a statutory change.


Representative Palumbo asked about assault at contracted prisons. She wanted to know how the department could intervene in cases of assault to stop them from happening.


Commissioner Thompson said they have state monitors on site at all contracted facilities. She said there has been a lot of staff turnover.


Representative Palumbo asked when the state monitor for Otter Creek was hired.


Commissioner Thompson said it had been within the past 2 months, but they have had an interim state person on site for the past 3-4 months.


Representative Palumbo asked what the state monitors do.


Commissioner Thompson said that they interact with inmates and staff and report back to the department’s Contract Management Branch.


Representative Palumbo asked if the monitors have one-on-one private conversations with inmates and staff.


Commissioner Thompson said yes.


Representative Palumbo asked how the Northpoint food issue is being resolved.


Commissioner Thompson said a report is expected on November 13 from a Critical Incident Review Team.


Representative Palumbo asked if the report could be provided to the committee.


Commissioner Thompson said yes.


Senator Schickel said that there is a difference between inmate work and employment. He said work should be compulsory for all but the disabled or elderly. Inmates should not have an entitlement state of mind. Work should be incentivized. He said he would like to get ideas, for legislation or otherwise, to ensure all inmates are helping to offset the cost of incarceration. He asked about the process and purpose of accreditation.


Commissioner Thompson said the American Correctional Association (ACA) standards are minimal, some are mandatory. They set a nationwide standard. They have been helpful in court cases and in maintaining facilities. The standards are voted on by a body of representatives from participating states.


Senator Schickel said that was a good explanation but he disagreed with the conclusion. He said the ACA can be vendor driven and has the incentive for more requirements. For example, ACA has interpreted the requirement for exercise to mean recreation. Facilities, as a result, are being designed around those standards.


Commissioner Thompson said that recreation is not a mandatory standard.


Representative Upchurch noted that the report said the inmate population has increased by 42 percent and the cost has increased by 53 percent. He wanted to know if the department has any projections over the next 10 years for those numbers.


Commissioner Thompson said she could provide information on the projections.


Representative Butler asked what local inmates pay for being in jail.


Rodney Ballard said that a booking fee was created by statute 3 years ago and all jails are charging the fees.


Representative Butler asked what the average fee is.


Mr. Ballard said he did not know but it has to be less than the per diem per day. He said in Kenton County, where he has worked, they collected $5 a day.


Representative Butler asked about the accounts inmates have.


Mr. Ballard said that inmates can use money in their canteen accounts to buy items from the canteen, and canteen profits benefit inmates.


Representative Butler asked if there are any limits on how much canteens may charge.


Mr. Ballard said no.


Representative Butler asked what inmates may bring into the jails and what they have to purchase in the jail.


Mr. Ballard said the trend is allowing them to bring nothing in.


Representative Butler asked if canteen fees are regulated and whether they should be.


Mr. Ballard said they are not regulated. The cost of hygiene and clothing items are typically low and are the least profitable items.


Representative Butler asked if there is any preliminary information on Northpoint.


Commissioner Thompson said no.


Representative Butler said there is a distinction between price and cost. Services can be provided at low cost but result in problems that are costly to address.


Representative Simpson asked how costs could be going up in Kentucky but they are a lower percentage of expenditures than for most other states.


Ms. Upton said that typically in other states more inmates are being put in prison for longer periods of time.


Representative Palumbo asked what activities inmates may participate in if they do not work.


Commissioner Thompson said they can use the canteen and participate in education and recreation.


Senator Schickel asked if inmates that refuse to work are allowed to watch television.


Commissioner Thompson said she believed so.


Senator Schickel said he had heard from employers that inmates do not have realistic expectations for appearance, courtesy, and dealing with the public. He wanted to know if there was any training to help with this.


Commissioner Thompson said they have re-entry coordinators to give life skills training approximately 6 months before inmates are released.


Senator Schickel asked if any of the correctional officers present wished to speak before the committee.


Victor Morris from the Northpoint Training Center read a prepared statement about the riot at the Northpoint Training Center in August 2009.  He said that the Northpoint Training Center Corrections Emergency Response Team, which responded to the riot at the prison on August 21, 2009, was not instructed to use breathing apparatuses. Some team members chose to wear them. Back-up staff who were not members of the response team assisted later. Mr. Morris said that no riot gear or breathing apparatuses were offered to back-up staff, and that not all back-up staff had radios. He said that cuffing of inmates was delayed at times because there were not enough plastic restraints available at the scene. He said that he and other staff have had persistent respiratory symptoms from smoke inhalation from the riot. He concluded by saying that no officials had contacted him after the riot as part of any investigation, and that he had heard from co-workers that this lack of contact was the norm.


Rick Graycarek presented the Highly Skilled Educator Program Follow-up Report.  He said in 2006 the committee adopted a report about the Highly Skilled Educator (HSE) program and in November 2008 voted to initiate a follow-up to that 2006 study.  He said HSEs are specially trained teachers and administrators whose primary purpose is to improve school accountability test scores.


He said the HSE program was created by the General Assembly in 1998 and is funded by the general revenue fund, the most recent annual cost being $5 million. During the 2008-2009 school year the department had 42 contracts with HSEs.  HSEs typically receive a 35 percent pay increase from their previous salary and the average HSE pay was $85,427 in 2008-2009.


Representative Simpson asked about other types of assistance and asked if the report addressed whether the program was effective in increasing student skills.


Mr. Graycarek said other types of assistance are the Commonwealth School Improvement Fund Grant and the scholastic audit. He said in the 2006 report staff found that schools that received multiple types of assistance that included an HSE had improved accountability scores in some years and schools that received assistance from only an HSE fared no better or worse than schools without an HSE. 


He said six of the nine recommendations made in the 2006 report have been implemented; one has been partially implemented in that administrators can provide feedback about HSEs but no mechanism is provided yet for parents, faculty, and others to provide feedback about HSEs.  Two of the recommendations are no longer applicable because they are related to a grant program that is no longer available or has changed significantly.


Mr. Graycarek said there are notable changes to the HSE program between 2006 and 2009.   In 2006, HSEs mostly worked independently or with the principal. Now the HSE works with district staff including the superintendents as well as a team of education professionals at schools.  In 2006, HSE assistance was mandatory for certain low-performing schools; it is now optional for all schools.  The last notable change is the identification of schools that need assistance.


He said that the data from a statistical analysis for 2007 and 2008 showed that school receiving assistance from an HSE did no better or worse than schools that did not receive assistance from an HSE. 


Senator Stine said that she had proposed a bill during the previous session of the General Assembly to provide HSE training to principals. She asked for a description of HSE training.


Mr. Graycarek said there is intensive training the summer before they start work as HSEs. There is follow-up training in the following summers. He said the department could provide more details.


Senator Schickel asked Kentucky Department of Education staff to discuss the report.


Representative Simpson asked if HSE training is advanced professional development beyond what other educators are required to take.


Ms. Lester said without HSEs there is no HSE training. A committee of HSEs creates the training and it changes over time. She said the goal is to build capacity at each school and district so that improvement may continue after HSEs leave.


Representative Simpson asked if the necessity of the HSE program was born of the failure of principals to lead.


Ms. Sugg said an HSE cannot change leadership skills of a principal but HSEs can be successfully used when the right leader is in place.


Ms. Lester noted that there were limits to the quantitative analysis in the report and that a qualitative report would have provided different results.


Representative Simpson asked them to respond to the finding from the report that an HSE alone has no effect but does in combination with other forms of assistance.


Ms. Lester said that in some schools covered by the report, HSEs were only in the schools part of the time. How HSEs divided their time between schools was up to them. In previous years, the Department of Education did not track where HSEs spent their time.


The meeting was adjourned at 12:25 p.m.