One pill, 10 years: Ky. high court reviews vet's sentence

Andrew Wolfson | The (Louisville, Ky.) Courier-Journal

FRANKFORT, Ky. — To his lawyer, James Kidd is the epitome of the kind of person that Kentucky lawmakers don't want sitting in prison.

An injured Gulf War veteran with no prior felony record, Kidd was convicted of drug trafficking in a controlled substance in 2009 for selling a single pill and sentenced to 10 years in prison.

His sentence was probated on the condition that he leave Kentucky for five years. But when he returned to visit his ailing mother in 2012, a circuit judge in Lee County revoked his probation and ordered him to serve the 10 years, the maximum allowed by law.

To Public Advocate Ed Monahan, locking up offenders like Kidd is why Kentucky is wasting millions of dollars a year on corrections even as crime rates fall.

"We should not be imprisoning a wounded veteran for 10 years at an average year's cost of $21,906 … because he was technically in violation of his conditions of probation," Monahan said in e-mail.

On Thursday, the Kentucky Supreme Court will hear arguments on whether Kidd should have been sent to prison or whether Circuit Judge Thomas Jones should have imposed lesser sanctions, such as electronic monitoring — as spelled out in the state's groundbreaking 2011 sentencing reform law designed to reduce incarceration and steer tax dollars into drug treatment.

Attorney General Jack Conway's office, defending the sentence, said in a brief that judges must have wide discretion in revoking probation if it's in the public interest.

Assistant Attorney General James Shackelford said in his brief that Kidd flouted the only special condition of his probation — that he be banished from Kentucky — even though he could have asked the court for permission to return, as he did shortly after he was sentenced when his sister was dying of cancer.

As Jones told Kidd, he was sorry he was having trouble with family members dying and being ill, but the court had to enforce its orders.

Kidd, 37, served three years and eight days in prison before he was released on parole Jan. 2, 2014.

He did not respond to a letter sent to his post office box in Beattyville, Ky., but his lawyer, Brandon Jewell, an assistant public advocate, said the outcome of the case is still important to him because it could determine his fate if his parole is revoked.

Jewell and Monahan said the case also will be crucial in determining whether judges must heed House Bill 463, the Public Safety and Offender Accountability Act, which requires that graduated sanctions be considered before an offender on probation is sent to prison.

The provision is one of several designed to make Kentucky "smarter on crime," as Justice Secretary J. Michael Brown has written, and which he has said have reduced the state's once mushrooming prison population without a spike in crime rates.

In the commonwealth's brief, Shackelford said that rule applies only to the Corrections Department, not the courts.

The case began in 2009, when Kidd pleaded guilty in exchange for five years' probation.

When he was arrested three years later for traveling from Ohio to Kentucky, the prosecution and defense agreed he had done so to visit his sick mother and that it was a technical violation justifying something short of revocation, according to Jewell's brief.

"After all, Kidd had not picked up any new charges, in any station, during the 2½ years he was on probation," Jewell said.

But Judge Jones said the violation was more than technical, noting that Kidd had been allowed to return to Kentucky for two months when his sister was dying and could have asked for permission again.

The court found that he was in need of "correctional treatment that can be provided most effectively by commitment to prison" and that continuing Kidd's probation would "unduly depreciate the seriousness of the crime."

Shackelford also noted that Kidd voluntarily returned to Kentucky — "absent proof to the contrary, such as fairies magically transporting" him across the state line.

But Jewell argues that the court failed to make two findings required under the sentencing reform law: that the probation violation "constitutes a significant risk to prior victims or the community," and that the probationer "cannot be managed in the community."

"Mr. Kidd does not pose a significant risk to anyone," Jewell said in his brief. "And there was no evidence that he cannot be appropriately managed in the community."

The state Court of Appeals affirmed the revocation of Kidd's probation.

Allison Martin, a spokeswoman for Conway, would say only that the decision on Kidd's sentence was up to the circuit judge and that the attorney general's office is bound by law to defend any sentence imposed by a judge or jury in Kentucky. Conway is seeking the Democratic nomination for governor.

In an e-mail, Monahan said: "Kentucky is spending nearly a half billion dollars on prisons per year. This is a perfect case for a graduated sanction as opposed to revocation and imprisonment."

Added Jewell: "Mr. Kidd has been punished enough."