Last month, Gov. Matt Bevin created a committee of legislators, judges, criminal justice professionals and reform advocates, religious leaders and even the head of the state Chamber of Commerce, and charged them with the task of reviewing the state's criminal laws.
The idea is that the committee -- The Criminal Justice Policy Assessment Council -- will study the state's criminal code, meet with experts and come up with a list of recommendations that lawmakers can put in legislation when the General Assembly meets next year.
When he announced the council, Bevin said, "The purpose of this council is to address the fact that we know incarcerations have been on the rise, drug use and drug overdoses have been on the rise, recidivism has been on the rise. We've had so many issues that we know about ... but what is it we are actually doing to minimize these increasing numbers?"
Kentucky has 23,945 inmates in either state prisons, county jails, halfway houses and other programs, according to the state Department of Corrections. Late last month -- when the state only had 23,600 inmates -- the DOC announced it was looking at temporarily reopening two privately run prisons in an effort to reduce overcrowding, the Louisville Courier-Journal reported.
There's an additional human cost behind those numbers. As has been well-documented, people leaving prison with felony records struggle to find work and housing. The families of people in the criminal justice system also suffer. According to an April report by the Annie E. Casey Foundation, 13 percent of the state's children have a parent in prison.
"Clearly, when a child or any adult hits the criminal justice system, even for something minor ... it does increase the chances they will come back," said John Tilley, a former legislator and secretary for the Justice and Public Safety Cabinet. "If we can divert children around the system, if we can keep kids' contact with the criminal justice system as limited as possible, it benefits the kids, the family and government ... and it lightens the load on state government services."
Tilley, who is chairman of the 23-member council, said he state hasn't examined its criminal laws in decades.
"The last time the legislature revised the penal code in a meaningful was 1974," Tilley said. "Kentucky took a look at the national penal code" and patterned the state's code after the national model, he said.
"Since then, it has become a patchwork."
Damon Preston, deputy advocate for the state Department of Public Advocacy and a council member, said there was "serious work" that went into fashioning the penal code in the 1970s with the most serious penalties reserved for the most serious offenses.
Since then, "the way the legislature has amended the penal code has resulted in less serious things being punished harshly," Preston said. The result was "anecdotal lawmaking," he said.
As a result, there are often two criminal statutes relating to the same crime, Preston said.
There are a number of laws Preston said he would like to see the council examine, such as the persistent felony law, which can add considerable prison time to an offender with a previous felony conviction.
"That is the biggest hammer prosecutors have," Preston said of the PFO statute. "... The PFO is too broad. We hope the assessment council is able to come up with a reasonable 'three strikes' law."
The PFO statute should only be used for "people who have demonstrated over a period of time" they will continue to commit new felony crimes, Preston said.
Penal code reform is the "next phase" of a process that started with House Bill 463 -- which created alternatives to incarceration for some people charged with drug offenses, with the goal of diverting offenders from jail and into substance abuse treatment -- and continued when legislators made changes to the juvenile penal code, Tilley said.
"I think it is the next phase and the next logical step we take," Tilley said. After enacting HB 463 in 2011, "we left the entire penal code for another day."
Daviess County's Circuit and District Court judges -- none of whom are on the council -- had differing ideas for what they'd like to see changed in the penal code.
"They need to wipe the slate clean in regard to all drug offenses," said Daviess Circuit Judge Joe Castlen. "People should not be sent to prison for drug offenses."
Castlen said many people coming in to court are there because they have a substance abuse problem. If a person with drug addiction is charged with both a crime such as burglary or theft and a drug offense -- such as burglary and possession of a controlled substance -- only burglary or theft charges should be prosecuted, Castlen said.
"It's the drug laws that drive the huge incarceration rate we have, there's no question about that," Castlen said. "If someone commits a robbery or burglary because they have a drug problem, they need to be prosecuted for the burglary or robbery. The drug offense should be addressed in another manner," through substance abuse treatment, he said.
People coming into the criminal justice system on drug charges "need to be addressed, and perhaps the judicial system may be the best way to address it, by requiring rehab," Castlen said. "But to put (drug offenders) in prison -- think of the enormous cost we have."
Daviess District Judge Lisa Payne Jones said two issues that need to be addressed by the council are defendants with substance abuse issues and those with mental health problems. Often, an inmate will have both, and is using drugs to self-medicate for the mental disorder, she said.
"There's hardly anybody in the jail who isn't touched by one or both of those things," Jones said. "Usually, we end up criminalizing the symptoms of a mental health illness that was left untreated."
Finding a way for the system to better address people with mental health issues "would be more humane" and would improve public safety, Jones said. "... There needs to be better mental health care, which would ease the burden on the criminal justice system."
County jails are "not equipped to handle" the mentally ill, Jones said.
Daviess Circuit Judge Jay Wethington agreed the system needs to change how it handles people with substance abuse issues.
"There has been a revelation that the past approach of 15 to 20 years ago has not been the correct approach," Wethington said. "That reflects a policy change in the U.S. government as well."
The Most Rev. William Medley, bishop of the Catholic Diocese of Owensboro, is a member of the council.
Wethington said, "I'm going to side with (an issue) Bishop Medley ... (is) going to be talking about but not for the same reasons. We need to get rid of the death penalty."
Kentucky prosecutors can still seek the death penalty, although there has been an injunction against executions for several years. During the 2016 General Assembly, legislators debated a death penalty bill in committee, but did not approve a bill.
Wethington, a former commonwealth's attorney who has prosecuted death penalty cases, said prosecutors who want to seek the sentence of life without parole in Kentucky must first seek the death penalty, which is costly for taxpayers.
"We spend too much money for the results," Wethington said. "Some (death penalty) cases can be quite costly for the results."
Abolishing the death penalty, not just in Kentucky but nationally, would benefit the country because the United States would be able to have a seat on the International Criminal Court, Wethington said. Countries that still allow the death penalty are not allowed on the court.
"We're the only First World country with the death penalty," Wethington said.
Daviess District Judge David Payne said since the penal code was created in the 1970s, legislators have added new laws to the code, often based up current events or events that happened in their districts. That has led to redundancy in the law, he said.
"There have been a lot of amendments over the years," Payne said. "It's whatever is expedient -- things happen and people make political issues (of them) ... when the law already provides provisions for that.
"Whatever hits the news, that's what gets the attention," Payne said.
Hopefully, the council will not be driven by current events when examining the penal code, Payne said.
"I hope whatever changes are made in the penal code are put there by experts who think logically," Payne said. "... I hope they get criminal justice professionals and legal professionals, and not just do what's politically expedient, or to get their names on the front page."
Jones said she would like to see the council address issues that affect defendants who do not have money, such as the cycle of assessing fees and then incarcerating them when the fees aren't paid. While a judge can sentence a person to community service, there is a monitoring fee the defendant pays for as well. There is also a fee for alternatives to incarceration, such as ankle monitoring, she said.
"As a judge, I can fine somebody, or I can send them to jail," Jones said. "That doesn't improve the situation. It doesn't make the community safer."
Jones said the council will also have to look at racial disparities in criminal justice. The juvenile code task force, of which Jones is a member, is also examining racial issues.
"We know (racial disparities are) there in the juvenile system, and it's in the adult system," Jones said.
When asked if racial disparities were written into the penal code, Jones said, "I'm confident it's not expressed in the law." But racial disparities appear in how the law is applied.
To find racial disparities, the council will have to examine the "decision points" of the system, such as when a person is arrested, is indicted, prosecuted and sentenced.
From the decision points, "you can see where it happens, but that doesn't explain why," Jones said. "But you have to see where it happens ... and then you'll get down to the why."
Tilley said the council will draw on previous studies and policies that have been shown to work when recommending changes to the penal code.
"This is something the governor is passionate about," Tilley said. "I think he has an awareness that very few people who haven't practiced in the system have.
"I think we first have to start with the proposition that public safety doesn't start with the prison system," Tilley said. "We can't build our way to public safety."
Tilley said when the time comes to make recommendations, legislators will be willing to listen.
"The first thing legislators know is there are too many low-level, nonviolent offenders," Tilley said. "Everyone knows someone who is struggling in that way ... There's that grass-roots component."
A number of conservative states, including Texas, have reformed their criminal codes, Tilley said.
"A lot of legislators who come from conservative districts can take strength in the number of groups that are promoting criminal justice reform," he said.