Prioritizing punishment over public health has hurt Kentucky communities.
Nazish Dholakia | Senior Writer | Aug 09, 2023
Amanda Hall is an organizer and advocate based in Louisa, a town of about 2,700 people in eastern Kentucky. She moved into policy work after running a drug treatment and recovery center where she was once enrolled herself. There, she often worked with women who had been incarcerated.
“I would tell them they could have a better life,” Hall said. “But then I couldn’t find them housing. I couldn’t find them employment. They were losing permanent custody of their children. They couldn’t make ends meet. And there came a point when I really felt like I was lying.”
It was that experience that led her to pursue policy work, first as a strategist at the ACLU of Kentucky and now as a campaign director at Dream.org Justice.
Hall spent her late teens and early 20s in and out of jail. In 2010, she received two five-year sentences for drug-related offenses, including first-degree trafficking. She was incarcerated at the Kentucky Correctional Institution for Women for 13 months.
“It was for one pill,” said Hall. “I got five years.” She says the second sentence was for complicity: “I was in the same room.”
Economic decline and increased criminalization
Over the last several decades, Kentucky’s elected officials have created an increasingly punitive criminal legal system, with especially harsh penalties for drug-related offenses. This expansive criminalization has extended Kentucky’s carceral footprint—the state has one of the highest incarceration rates in the country—while doing nothing to address an ongoing public health crisis. Kentucky’s communities have continued to struggle with high rates of drug and substance use. In 2020, the state had the second-highest drug overdose mortality rate in the nation.
In mid-2021, Kentucky claimed the second-highest jail incarceration rate, the 10th-highest prison incarceration rate, and the eighth-highest overall incarceration rate in the nation. This is no accident. Over the past 50 years, state and local governments have pursued policies and investments that fueled the construction and expansion of jails, doubled down on punitive drug laws, and created an extensive and onerous system of correctional supervision for people who are released pretrial, sentenced to probation, or on parole.
How did we get here?
As Vera’s new report The Criminalization of Poverty in Kentucky explains, the decline of the coal and manufacturing industries over the last 30 years—once central to Kentucky’s economy—has led local governments to rely heavily on the criminal legal system as a source of revenue. That revenue is generated in various ways—from the jail- and court-related fines and fees charged to people who have been criminalized, to the kickbacks counties receive from private contractors that provide everything from costly phone services in prisons to electronic monitoring devices. A vast system of criminalization has emerged, with convoluted methods to extract revenue from people, which disproportionately affects those experiencing poverty.
The impact of the decline of the coal and manufacturing industries has been felt statewide, but eastern Kentucky is one of the regions that has been hardest hit. The region has lost thousands of jobs since 1990. In almost every year since then, eastern Kentucky has had the highest unemployment rate in the state, averaging 9.4 percent, compared to 6.1 percent statewide.
“The coal industry has almost vanished,” said Jesse, a resident of eastern Kentucky who spoke with Vera researchers. (Like others quoted in the report, his full name is not shared to preserve his anonymity.) Amid Kentucky’s economic decline, Jesse said he, like many people, turned to selling drugs to supplement his income: “Nobody works anymore because there’s nowhere to work. And if you do get a job, you’re lucky to have it.”
It is against this backdrop that the ongoing substance use crisis has surged. And the communities that have been most harmed by economic upheaval are the same ones that have been targeted by the harshest drug laws, making the people in those communities significantly more likely to be affected by the criminal legal system.
Limited resources
In some places, government actors have framed this crackdown as necessary to attract private investment and wealthier residents. For example, officials in McCracken County, located in the westernmost part of Kentucky, have used aggressive policing and increased criminalization to displace and incarcerate low-income residents as part of a decades-long “urban revitalization” plan.
“So often, the rhetoric we will hear is to lock these folks up to make us safer,” said Hall. “But if you’re able to address the reasons that folks are involved in the system—the lack of resources, be that mental health or employment or housing—then you won’t see high recidivism and you will see healthier communities.”
In McCracken County and throughout Kentucky, those resources are lacking. McCracken residents described the dearth of stable housing, employment opportunities, public transportation, mental health care, and substance use treatment options. Anne, a resident of western Kentucky who sought treatment for an alcohol use disorder after she was released from jail, told Vera researchers that she had to drive over three hours outside her county to enroll in a treatment program in Louisville.
Per-diem payments incentivize incarceration
Another incentive for the construction and expansion of jails comes from the per diem payments that counties can secure for incarcerating people on behalf of other authorities, primarily the Kentucky Department of Corrections, but also federal agencies and other counties. These entities pay a fee to counties to incarcerate people convicted of low-level Class D and Class C felonies in county jails. As counties clamor for increased revenue from these per diems, the arrangement has transferred the incarceration crisis in Kentucky’s historically crowded state prisons to its now-overcrowded county jails.
There’s also evidence that these per diem arrangements may have incentivized local judges and prosecutors to pursue more low-level Class D convictions, so county jails can be reimbursed by the state. Vera’s analysis of statewide conviction data from 2004—after Kentucky formalized this arrangement—to 2019 shows an increase in Class D felonies as a share of overall convictions in every region of the state.
This practice attaches perceived financial incentives to imprisonment, creating “a market for jail beds and tying county revenue to continued incarceration.” In reality, the revenue from per diem payments does little to offset the hefty financial cost of building and operating county jails—and comes at a severe social cost. Kentucky’s counties spent more than $402 million on local jails in 2019—funds that can, and should, be redirected to support residents’ housing, transportation, and health care needs.
Tethered by fines and fees
Like jurisdictions across the country, municipal and county governments in Kentucky have turned to fines and fees they can levy through the criminal legal system to fund government operations, including local jails and courts. These fines and fees—jail boarding fees, drug testing fees, court fees, restitution, and more—keep people tethered to the criminal legal system far beyond incarceration and can even lead to further jail time.
“You get straight outta jail. And then a month later they want you to pay this $800 fine,” said Garth, who spoke to Vera researchers in western Kentucky. “You ain’t got a job . . . . So, they throw you right back into jail [for not paying it].”
These practices not only directly criminalize people experiencing poverty, they also tether Kentucky counties’ fiscal futures to criminalization and incarceration. What’s more, the costs of pursuing collection of criminal legal debt often outstrip the revenue that is collected.
Need for investment in public services
Instead of investing in the services and resources people say they need—like substance use treatment, mental health care, public transportation, affordable housing, and employment opportunities—local governments have poured millions into carceral responses. This displaced spending has harmed people in Kentucky, who have said they need access to community-based care and resources.
In 2011, the Kentucky General Assembly passed a bill that promised to shrink the state’s prison population, reduce corrections spending, and expand access to treatment programs in lieu of incarceration. But reforms failed to meaningfully reduce incarceration, as prosecutors and judges retained immense discretion to punitively charge and imprison people. In the years after the legislation passed, Vera found that people who used drugs continued to be criminalized, and overdose deaths reached record levels, indicating that the needs underlying Kentucky’s substance use crisis remained unaddressed.
Hall considers herself lucky because she was eventually able to access mental health and substance use services, as well as employment and housing. “Once I was able to meet those needs—that’s when the cycle really stopped,” she said.
She has since co-founded the Smart Justice Advocates, a group of Kentuckians who have been impacted by the criminal legal system and work to change it, and has led statewide campaigns for reform in Kentucky and elsewhere. Most recently, she was part of a coalition that successfully advocated to decriminalize fentanyl testing strips in the state.
“I just want us to continue moving forward in Kentucky,” she said. “I want us to stop passing legislation to increase penalties. I want us to stop doing the same thing that hasn’t worked.”