Eddy Montgomery, Com. Attorney for Pulaski county, sues Dept. of Corrections over early release of inmates – Court grants temporary injunction blocking application of 2008 Budget Bill language which changes parole rules.

Aug. 21, 2008

LawReader presents the law behind the news on this important issue.
Circuit Judge David Tapp has granted a temporary  injunctive relief directing the Kentucky Department of Corrections cease application of new parole rules that have resulted in the release of more than 1,000 inmates statewide.   The new rules also have resulted in the release of 1,500 inmates who were on parole supervision.

Judge Tapp’s order applies only to inmates convicted in Pulaski, Lincoln and Rockcastle counties for the time being.    He will consider making the order permanent and will consider making the order effective statewide after conducting an additional hearing on Aug. 27th

Eddy Montgomery, the Commonwealth Attorney for Pulaski, Lincoln and Rockcastle counties filed a lawsuit in the Pulaski Circuit Court to stop the early release of inmates made possible by new release rules adopted by the 2008 session of the General Assembly.   See HB 406 at http://www.lrc.ky.gov/record/08RS/HB406.htm 

Montgomery, who credits his Deputy David Dalton with doing a lot of the research necessary to prepare the lawsuit, argues in his complaint that the Legislature improperly included the new rules in a Budget Bill and not an amendment to the applicable KRS provisions, and that the Department of Corrections is improperly making these rules retroactively.

In his complaint against the Department of Corrections, Montgomery argues that the changes are illegal and endanger the public, including him.  “The plaintiff has a right to remain safe from convicts and felons being released early and shooed out the jailhouse door,” Montgomery said in a motion. “The Department of Corrections is flooding the Commonwealth with people not due to be released from either jail or parole supervision.”

Montgomery asked Judge Tapp to rule that the new parole credits are unconstitutional, and sought an order for all the people released under the rules to be put back in jail or on supervision.

Justice and Public Safety Secretary J. Michael Brown said the cabinet will defend the new rules on parole credits. The legislature had the authority to make changes in parole, and the law is presumed to be constitutional, Brown said.

The state will abide by Tapp’s order and not apply the new rules on parole credits to any inmates or parolees from his circuit. However, corrections officials are not barred from continuing to use the rules elsewhere, Brown said.

And Brown disagreed that the new rules on parole credits endanger the public. People are released from prison and parole supervision all the time in Kentucky; the people released under the new provisions are no different, he said.

The legislature made the changes to save money by reducing the inmate population at a time when the state is strapped.

The legislature approved the new rules as part of the budget, instead of in a regular bill. That’s one thing that rankles critics such as Montgomery, who has said lawmakers sneaked the provisions into the budget with little notice.

One change affected people who commit violations such as drug use while on parole, and have their parole revoked.

Before, if a person sentenced to five years had served one year and been on parole two years before being sent back to prison, he would have the remaining four years of his original sentence to serve.

Under the new provision, he would get credit for the two years on parole – “street credit,” some call it — leaving two years to serve.

Montgomery said the state is applying street credit retroactively, giving inmates credit for time they spent on parole before the new rules were adopted. There is no limit, meaning inmates are getting credit for parole time from crimes 20 years ago, Montgomery said.

Montgomery’s lawsuit argues the changes are unconstitutional, in part because they infringe on the power to commute sentences and make pardons that rests solely with the governor.

The lawsuit also claims the new rules violate state law. Among other things, there are no written policies to implement the rules, and it is illegal to apply the measures retroactively, Montgomery said.

State Rep. Kathy Stein, D-Lexington and chair of the House Judiciary Committee, said the legislature had to reduce the inmate population to cut costs, but do it in a way that was safe.

The changes in parole credits have accomplished that, she said.

Brown, however, said the only approach that makes sense is to apply past parole credit to the current inmate population

LawReader has reviewed Montgomery’s complaint and notes the following essential issues raised.

Quotes from Montgomery v. Dept. of Corrections lawsuit:
“2. In the 2008 Legislative Session, the Kentucky Legislature passed a Budget for 2008-2010 (hereafter referred to HB 406). Language was slipped into the budget language for the Department of Corrections, fundamentally changing the way that the Department of Corrections determines when prisoners get parole, how much and in what manner parolees get jail credit when their parole is revoked, and at what point parolees are determined to have served heir entire sentence.”

(The following provisionsof HB 406  are targeted by Montgomery as being unconstitutional.)
“3.  Pursuant to HB 406, Part I (Justice and Public Safety Cabinet”; Subsectin 5 (Corrections); Sub-section (4) and (5):

Probation and Parole Credit: Notwithstanding KRS 439.344, the period of time spent on parole shall count as part of the prisoner’s remaining unexpired sentence when it is used to determine a parolee’s eligibility for a final discharge from parole as set out in subsection (5) of this section or when a parolee is returned as a parole violator for a violation other than a new felony conviction.

Minimum Expiration of Sentence:  Notwithstanding KRS 439.354, a final discharge shall be issued when the prisoner has been out of prison on parole a sufficient period of time to have been eligible for discharge from prison by minimum expiration of sentence had he not been paroled, provided before this date he had not absconded from parole supervision or that a warrant for parole violation had not been issued by the board.”


“4. Nowhere in HB 406 does it authorize the application of the statute in a retroactive manner.”

“15.  This action is brought pursuant to KRS 418.404, the Kentucky Rules of Civil Procedure, CR 57, CR 65.01, CR 65.03 and CR 65.04 to stop ongoing and continuous violations of the laws and constitution of the Commonwealth of Kentucky. These violations being the existence of unconstitutional provisions with the body of HB 406 as well as the illegal and unconstitutional actions by the Department of Corrections regarding their application of certain provisions of HB 406.”


(Montgomery argues that the Legislature by adoption of HB 406 has infringed on the exclusive commutation powers of the Governor.)
“28. Section 77 of the Kentucky Constitution vests all power of pardons and commutations in the Office of the Governor. Amongst other requirements, the Governor must make certain written findings to exercise this power.”

“29. KRS 439.340 mandates that parole shall be ordered only for the best interest of society and not as an award of clemency, and it shall not be considered a reduction of sentence or pardon.”

“30. KRS 13A.130 mandates that an administrative body by internal policy, memorandum or other forces of action may not expand or limit a statute of administrative regulation.”

“31. KRS 446.080 mandates that no statute shall be construed to be retroactive, unless expressly so declared.”

“37. HB 406 KRS 439.340 by using parole; “street time” and other factors to manipulation the expiration of sentences for reasons inconsistent with the plain language of the statute.”

Personal:  Eddy Montgomery is a l990 graduate of the U of L Law School.   His office is located in Somerset.   When LawReader inquired about his hobbies, he says he is a frustrated golfer with an incurable slice.  While we might be able to help him with some advice on his slice, he appears to need no help in getting the attention of the Department of Corrections.  See the following links in LawReader FREE LINKS:

GOLF TIPS:  http://www.golfdigest.com/  swing tips,        The Perfect Golf Swing A great video that really works.   Weight Shift in Golf Swing      how to hit iron shots straight – video

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