ircuit Court Judge Jim Kitchens poses for a portrait Friday in his office at the Lowndes County Court House. Kitchens voiced concern for laws allowing inmates to only serve a fraction of the time that they have been given in prison. Photo by: Sam Gause/Dispatch Staff Buy this photo.
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June 9, 2012 10:01:55 PM
There's a cliché' phrase used in the faux legal world of network television crime programs that states, "commit the crime, do the time." To the uninitiated, the phrase simply means if someone is willing to commit a crime, they should be willing to serve a sentence if they are convicted of the criminal activity. But for 16th District Circuit Court Judge Jim Kitchens, whose district includes the counties of Lowndes, Clay, Noxubee and Oktibbeha, the phrase has changed greatly over the past 10 years and it has taken on a less literal meaning.
"When I first started 10 years ago, there were two types of parole eligibilities," Kitchens told The Commercial Dispatch Friday. "Most crimes were 85 percent crimes -- you had to serve 85 percent of your sentence before you were eligible for release. Other crimes were considered 100 percent crimes. These included armed robbery, sex crimes and murder. You served your sentence day for day. But as the economy started slowing, the number of people incarcerated started to increase."
According to Kitchens, 100 percent crimes remained the same, but the legislature allowed Mississippi Department of Corrections (MDOC) to allow some long-term prisoners to automatically get 'trustee time,' meaning for every 30 days served, 30 days were removed from a sentence. This cut some sentences in half automatically.
Kitchens added, "Prisoners can get meritorious earned time for taking classes such as GED, marriage and family or a drug and alcohol class. This cuts a 20-year sentence for a drug sale or manufacturing conviction -- which is only a 25 percent time-served crime -- down to about one year and nine months. A 20-year sentence now magically becomes less than two years."
The guidelines for meritorious earned time are set in section 47-5-138 of the Mississippi Code of 1972. It states in part, "(MDOC) may promulgate rules and regulations to carry out an earned time allowance program based on the good conduct and performance of an inmate. An inmate is eligible to receive an earned time allowance of one-half (1/2) of the period of confinement imposed by the court except those inmates excluded by law. When an inmate is committed to the custody of the department, the department shall determine a conditional earned time release date by subtracting the earned time allowance from an inmate's term of sentence."
Kitchens expressed his frustrations with mandatory reduced sentencing. "When you've handed down a sentence and you find out someone is going to serve less than half of the time you gave them, it is certainly frustrating. My job as a judge is to make sure the criminal defendant's rights are protected and the defendant is treated fairly. They are presumed innocent until proven guilty. When a defendant pleads guilty or is convicted, the presumption disappears, and you want to do what is right for the victim and society. But it's hard when you tell someone who has lost a loved one that the person who was convicted of manslaughter is going to serve 17 years and they get out of jail in less than eight years."
Another area of frustration for Kitchens is when legislation is passed regarding changes in sentencing and time-served. "The change in the law goes to the benefit of someone that is currently in prison," Kitchens said. "It is beneficial to the prisoner. I sentenced a man in 2009 to eight years in prison. I revoked his probation in February and he is getting out of prison this month."
Rep. Gary Chism agreed the state's hand in changing the sentence time for prisoners has undermined the circuit court system. "When we were under the 85 percent law, it seemed like a lot of people were getting a heavy dose of time," Chism said. "The argument was to allow first time, non- violent criminals to serve 35 percent of their time. Most of the judges were doing this right, but we came in behind them and we shouldn't have. This should have only been for future convictions. When he had some budget issues eight years ago, it started allowing people to do 30 for 30. This undermined the judges. It became completely unfair. I sympathize with this. This should not have been retroactive. Our prisons seem like they have a revolving door. I wish we had done some things differently."
Reduction in sentencing lengths is only one of the challenges Kitchens said he faces. With more and more convicted criminals getting early releases, post-release supervision is also changing.
In a letter obtained by The Dispatch, Viruth "Lek" Phongam of Community Corrections Division, Region Three of the MDOC, outlined new guidelines for probation officers. The letter states someone would have to violate parole in a technical manner three times before the parole could be revoked or sent back to circuit court.
"I did not see the words arrest, lock up and/or incarceration anywhere in Community Corrections Mission," the letter said. "As Community Corrections staff, we have got to do better to keep offenders out of prison. A large number of those offenders are at the institutions today because the Community Corrections staff sends offenders back to institutions due to technical violations."
The letter outlines technical violations as positive drug tests and arrest for misdemeanor crimes on a "case by case basis."
"We have to try our best to keep offenders out of prison. We are not soft on crime, but we are trying to manage offenders with the cost effective way. Our salary depends on we do business," the letter concluded.
When asked about the letter, which is being opposed by judges in the 10th District Circuit Court, Kitchens said it weakens the design of parole. "If you have consequences for things and there are no consequences, why would people follow the guidelines for parole," Kitchens asked rhetorically. "If you tell a child not to play in the street or they will get a spanking, yet they continue to play in the street without punishment, why would they stay out of the street?"
Kitchens said the shorter sentencing times are "clogging the circuit court docket with repeat offenders." But some local law enforcement agencies are trying to fight the weakened state prison system by sending some cases to federal court such as in the case of "high level" drug dealers Antonio Brooks and Steven Jennings. Columbus-Lowndes Metro Narcotics Capt. Bobby Grimes has called both men "habitual offenders."
Brooks, who was sentenced to 90 days in a residential drug and alcohol treatment facility last spring, was arrested with Jennings in January. About five ounces of crack and powdered cocaine was found in Brook's vehicle when he was arrested.
The duo were recently arraigned in US Federal Court in Aberdeen and are in the custody of the US Marshals until their trial in July in Oxford. If convicted, they face a maximum sentence of 40 years in prison.
"The problem we are having in state court is these guys are getting out after a year or two and they are right back out selling drugs and carrying guns and running wild," Grimes said. "They have no deterrent to stop because they will only do a little bit of time in prison. They have no consequences. The MDOC's focus is to turn them out, not to keep them in. We are starting to use the federal courts more and more because they are going to serve 85 percent of the time of what they are sentenced."
"The federal prison system still uses the 85 percent model," Kitchens said. "It doesn't make me feel like I'm not doing my job properly, but I certainly understand where law enforcement is coming from. The offenders know the docket is clogged and they know they won't serve much time. This is 'prison math.' It's not how normal people think. Some people have no problem doing a couple of years in prison. It's not a big deal to them. Ninety-eight percent of the people of Lowndes County aren't wired this way."
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