LEXINGTON, Ky. — The Kentucky Supreme Court is set to decide whether a law passed by the state legislature in 2024 can require violent offenders to serve at least 85% of their prison sentence, even if they were convicted before the new law.

People being held at Kentucky prisons who were convicted before the Safer Kentucky Act was passed argue that the law, which implemented a legal requirement that violent offenders serve at least 85% of their sentence before they can be released, should not apply to them. The challenge to the implementation of the Safer Kentucky Act comes from more than 400 inmates who joined a class-action lawsuit saying the new law caused them irreparable harm by extending the amount of time they could stay in prison.

The state disagrees, and the case has pinged between different levels of the Kentucky courts system.

The state’s highest court has agreed to hear oral arguments about the case later in October.

Leading up to that, the Attorney General’s office, the Department of Corrections and attorneys for the inmates have filed written briefs in an effort to sway the Supreme Court that their stance is the most legally sound.

The state wants Kentucky’s highest court to rule that the inmates who have joined the lawsuit can’t have class-action status, and uphold the parole eligibility that lawmakers set.

—Why Kentucky inmates think they shouldn’t serve 85% of their sentence

Previously, Kentucky inmates only had to serve 20% of their sentence before being eligible for parole under state law. After it was passed, the Safer Kentucky Act was applied to inmates who had been convicted of their offenses and sentenced before the new legislation.

The new law doesn’t say whether previously-convicted defendants should be subjected to the new rules.

Inmates who went to prison thinking they’d be able to get out after serving 20% of their sentence were suddenly told they’d get much longer terms, according to their lawsuit.

Toby Berry, a Kentucky man who pleaded guilty to strangulation, unlawful imprisonment and promoting contraband before the law took effect, was the first inmate to sue the Department of Corrections. Hundreds of others joined his case.

Franklin County Judge Shepherd agreed with Berry’s argument, ruling in February that the increased prison sentences should be paused.

Berry’s sentencing date was a major factor in the case. He was sentenced after the law took effect, Aug. 13, 2024. By that point, the DOC had released a new certificate of eligibility that said the law change applied to everyone sentenced after the effective date, regardless of when the crime happened or when someone was convicted.

In his case, Berry’s parole eligibility date went from August 2025 to August 2031.

“The consequences of this decision for Mr. Berry went well beyond parole,” Berry’s attorneys said.

Berry was not able to access programs to help him earn additional sentence credits that would help him earn an earlier release. Berry has been recommended for a substance abuse treatment program, but he can’t enter it while facing his extended release date.

Berry’s attorneys say the lower court’s ruling was correct, and they encourage the Supreme Court to uphold and make permanent the ruling that said the new change should not apply to people who pleaded guilty with a 20% parole eligibility stipulation.

“These cases underscore the fact that in our system parole eligibility, and in particular the difference between 85% and 20% parole eligibility, is often a critical component in plea negotiations,” their brief reads. “Parole is the potential minimum amount of time a person could serve on that sentence, which is why this court has found that a defendant must be aware of it in deciding a plea offer, and why the General Assembly wanted to make juries aware of it as well.”

—DOC: Parole changes don’t affect overall sentencing numbers

The Department of Corrections determines sentences and parole eligibility date for inmates. The department says it has correctly used the 2024 law to adjust sentences based on the law, and the Supreme Court should reverse Shepherd’s ruling.

In court documents, the department says the legislature did not include a new offense-date cutoff, but only a cutoff that applies to sentences – which is how they base their calculations.

The Department of Corrections is asking the Supreme Court to lift the injunction, and allow the increase requiring inmates to serve 85% of their sentence.

Attorneys for the Department of Corrections cite that the July 15, 2024, effective date of the new law does not impact when the law can be applied. The new law contains provisions going back decades, to 2002 and 1998.

The department also says inmates’ actual sentences have not been changed by the law — just when they’re eligible for parole.

The Department of Corrections also argues that inmates could still seek their parole date to be reviewed individually, even if the state Supreme Court agrees with the DOC.

“Vacating the class-wide injunction would not place DOC’s decisions beyond review,” the filing says. “An affected inmate may pursue an available administrative or judicial remedy based on an individual record.”

—AG’s office says public advocates can’t represent inmates

Attorney General Russell Colema’s office has asked that Berry’s class-action status be revoked for two reasons. The first reason is that the inmates who have signed on to the class action have not exhausted all other measures. Secondly, the attorney general’s office says the Department of Public Advocacy can’t represent the inmates.

Berry’s method of creating a class-action lawsuit creates a “loophole” allowing other inmates – convicted violent offenders – to join when they haven’t gone through all options available to try and have the issue resolved, according to the attorney general.

“One inmate cannot get around an unfulfilled requirement just by associating his litigation with another inmate who has fulfilled the requirement,” the attorney general’s office said in court records. “That is what Berry is trying to do by making his challenge into a class action. In permitting it, the trial court has created a loophole that would allow inmates to piggyback off each other’s litigation. That loophole should not stand.”

If the inmates’ class-action status remains in place, the attorney general says it would cause “irreparable harm” to the public and government.

“The efficiency and cost-effectiveness of a class action are noble goals, but not at the expense of public safety, and of the interests of individual inmates,” the filing says.

Not only does the state argue that public advocates are inadequate to argue the case, but that they legally aren’t allowed to do so.

Attorneys with the attorney general’s office say that under Kentucky law, public advocates are allowed to represent indigent clients in certain criminal proceedings. Additionally, public advocates can represent clients in habeas actions, contempt actions, post-conviction appeals, and certain proceedings for minors.

Because Berry’s case deals with affirmative civil litigation, the attorney general’s office says public advocates are not proper to serve.

“The question isn’t whether DPA has to be appointed — it’s whether DPA has the statutory authorization to undertake the appointment,” the attorney general’s filing reads. “Put simply, some people, even some indigent people, are statutorily ineligible for DPA representation.”

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