FRANKFORT — The legislature’s desire to reduce prison and jail populations through in-home incarceration and early release of parolees has encountered more resistance – this time from the courts and prosecutors.

Circuit Judge David Tapp, of the 28th Circuit covering Pulaski, Rockcastle and Lincoln counties, issued a restraining order late Monday preventing the state from releasing prisoners sentenced from that circuit until a hearing next week on Aug. 27. The restraining order was in response to a request for an injunction by Commonwealth Attorney Eddy Montgomery.

The legislature this year passed House Bill 406 which allows the state to give credit for “street crime” against sentences of parole violators. Previously, such violators would have had to serve out their sentences after being returned to jail or prison. But the new law allows the state to credit the violator with the time he was out on parole.

Prosecutors have reacted either with caution or resistance, and Montgomery’s complaint alleges the law may be unconstitutional or the state may be applying it in an unconstitutional manner because they are releasing felons who were serving time when the law was passed this spring. Its provisions are retroactive, which Montgomery’s complaint says is unconstitutional.

Justice Secretary J. Michael Brown appeared Tuesday morning before the Interim Joint Committee on Judiciary and he began his testimony by informing the committee of Tapp’s restraining order.

“It has been the position of the cabinet and the Department of Corrections that it had always been the intent and in clear language of the General Assembly that these provisions were to be applied current with the budget period itself and with the extant population,” Brown said.

The restraining order applies only to prisoners sentenced in the 28th Circuit but could have statewide implications as could any ruling Tapp issues as he hears evidence in Montgomery’s request for an injunction next week.

DOC Commissioner Ladonna Thompson said 1,016 prisoners have been discharged as of Monday, 887 of them parolees discharged because they met the provisions set forth in HB 406. On top of those, 226 inmates and parolees have been sentenced to in-home incarceration. Of those, 170 were inmates.

Thompson said so far the moves have saved the state “a little over a half a million dollars,” and projected savings through fiscal year June 30, 2010 are estimated at $12.5 million.

Committee Co-Chair Sen. Bob Stivers, R-Manchester, asked if those given discharge with credit for street time were all non-violent and non-sexual offenders, but Thompson said that isn’t the case. If the prisoner has been paroled and has not absconded or committed another felony, he or she qualifies for the provisions of HB 406.

Rep. Robin Webb, D-Grayson, one of the co-sponsors of HB 406, said the “tool of revocation (of parole) is there as a safety net – it’s a very powerful tool” to restrain parolees or those discharged with credit for street crime from committing subsequent crimes.

Chris Cohron, Commonwealth Attorney in Warren County and President of the Commonwealth Attorney’s Association, said it’s too early to evaluate the effects of the early releases. But he clearly has some doubts about it.

“Obviously, our group, because we’re the ones who put them there, are very concerned,” Cohron told the committee. He said commonwealth attorneys have been “flooded with victims’ calls” about the early releases.

“We are tracking those who come out,” Cohron said, “but unfortunately, just from statistical analysis, there is going to be some re-offending.”

The state’s corrections budget has grown to nearly $400 million from $7 million 30 years ago and Kentucky leads the nation in the percentage rise of incarceration. Currently, there are more than 21,000 state inmates, 8,000 of the lower level felony offenders housed in county jails. After several studies by University of Kentucky College of Law Professor Robert Lawson and a spate of news reports, including a series of stories last spring by CNHI News Service, the legislature debated ways to reduce costs and inmate populations.

But county governments are watching closely, because the state pays them $32.51 a day for housing state inmates, and many of the discharged and home incarcerated prisoners have come from county jails. That costs the counties which collectively pumped in about $130 million from general funds to keep jails afloat last year.

Larue County Judge/Executive Tommy Turner appealed to the Judiciary Committee Monday not overlook the financial impact on the struggling counties.

“The gain for the state is borne on the backs of the counties,” Turner said.

Campbell County Judge/Executive Tom Pendery said his county built a 550-bed jail in order to house state prisoners for roughly $10,000 a year for each inmate. With the changes brought on by HB 406, he said, he’s between 60 and 70 state inmates short of capacity and that will cost his county around $650,000 a year.

Pendery and Turner both concede too many people are imprisoned for either minor offenses or because of punitive enhancements to sentences – the conclusion of Lawson’s studies and the CNHI series.

“And they are not better people when they leave,” Pendery said. “I understand you need to save money, but the misdemeanor cases would be the place to begin before releasing felons.”

Misdemeanant inmates are the county’s responsibility and there is no revenue stream like the state payments for felons. So releasing those would lessen the burden on the counties but do nothing for state costs – the reverse of what Pendery and Turner say is happening now.

The Kentucky County Judge/Executives Association is planning to sue the state to force it to pay for the time state prisoners spend in county jails before sentencing. That time isn’t covered by the state, but judges often give defendants credit for that time against their over all sentences. That saves the state money, the counties contend, but costs the counties for imprisoning them before trial.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com.