While an appeals court agreed with a Pulaski County circuit judge about the possible ramifications of the application of an early release program for prisoners, the constitutional merits of such a program — and how it’s enacted — were hashed out yesterday in Pulaski Circuit Court when attorneys ask that the injunction be applied statewide.

The hearing was held Thursday before Judge David A. Tapp, who handed down an injunction against the program in September 2008 after Commonwealth’s Attorney Eddy F. Montgomery sought to halt the early release of prisoners in Pulaski, Lincoln and Rockcastle counties.

Wesley Duke, the Kentucky Department of Corrections’ representative, told Tapp that he and other attorneys with the department requested that the case go to the Supreme Court last week after an appeals court ruled that Tapp had acted appropriately in handing down the injunction.

That injunction effectively stopped the department of corrections from releasing prisoners in the 28th Circuit early for “street time” they may have received while on parole, whether they violated the conditions of that parole or not. DOC Commissioner LaDonna Thompson had testified both in Pulaski Circuit Court and in Franklin Circuit Court that she and several others had decided to apply the program retroactively in an effort to save a significant amount of money.

During Thursday’s hearing Assistant Commonwealth’s Attorney David L. Dalton presented Thompson with a copy of the state budget that had been handed down by the legislature in April 2008. That budget called for an overall cut of $12 million in the 2008-2009 fiscal year and a cut of $19 million for the 2009-2010 fiscal year for the DOC.

Dalton alluded to the complicated nature of the state budgetary recommendations.

“It’s not just a budget being handed over ... it’s a continuation,” Dalton said.

Thompson agreed.

Dalton asked whether any language had been present in the budget that would call for a retroactive application of the program, known as House Bill 406, meaning that it would be applied to those inmates who had been on parole before the current fiscal year.

While Thompson said no obvious language was present, she said she and other officials with the DOC came to the conclusion that to apply the program retroactively would mean to apply it to those inmates who may have been in prison in the past but were currently serving again for separate charges.

The DOC did not apply the program in that way, but instead applied it to inmates who met the eligibility requirements for the program and who had served on parole prior to the current fiscal year.

“I don’t remember anyone expressing that they did not agree with it (the application of the program),” Thompson said.

Montgomery had claimed that the retroactive application of HB 406 is unconstitutional and that a prior early release program enacted several years ago had not been applied in the same way. Attorney General Jack Conway had agreed and sought a statewide injunction against the program, claiming it also would cause harm to the public. Montgomery had also claimed the same thing in his case.

In its upholding of Tapp’s injunction the appeals court said state law mandates that no bill be applied retroactively unless language clearly demands it.

Franklin Circuit Judge Phillip Shepherd denied to hand down an injunction, stating that Conway failed to prove that irreparable and immediate harm would result from the early release of prisoners. He also said that the recidivism rate, or re-offending rate, of those prisoners was not higher than the normal rate of 30 percent to 33 percent.

“You have to realize,” Thompson said Thursday. “That about 20 percent of that 30 percent are parole violations.”

Dalton also asked whether the program saved the DOC a significant amount of money, and if so, why the program has been continued. Thompson and DOC Director of Administrative Services Mark Robinson both said that while the program had saved the department money, the inmate population continues to rise and more money is being required to house them.

“There was a big outflow for inmates past due,” Thompson said. “But now it’s starting to creep back up.”

Robinson also said the cuts were so substantial that around half of parole officers would have been laid off or one to three prisons would have been forced to close to offset the deficit had HB 406 not been enacted.

“It would be catastrophic to the department,” Robinson said.

The DOC is projected to save around $10.7 million for the 2008-2009 fiscal year and around $14.6 million for the 2009-2010 fiscal year should the program continue to be enacted.

Dalton stated that he would ask Tapp to apply the injunction statewide. Tapp responded that Dalton would need to provide some rationale as to why a county judge would need to apply such an order when judges in Franklin County “may be more qualified.”

“Saying [I] can do it is not a very persuasive argument,” Tapp said during the hearing.

Tapp suggested that the legislature would best be equipped to deal with the program and its consequences and advantages.

“This issue may become moot depending on what they (lawmakers) deal with over the next three weeks,” Tapp said.

Tapp also thanked counsel for keeping the hearing “amiable.”

Another hearing is tentatively set for March 1.