The legislature’s desire to reduce prison and jail populations through in-home incarceration and early release of parolees has encountered more resistance – this time from the courts and prosecutors.

Circuit Judge David Tapp, of the 28th Circuit covering Pulaski, Rockcastle and Lincoln counties, issued a restraining order late Monday preventing the state from releasing prisoners sentenced from that circuit until a hearing Aug. 27. The restraining order was in response to a request for an injunction by Commonwealth Attorney Eddy Montgomery.

The legislature this year passed House Bill 406, which allows the state to give credit for “street crime” against sentences of parole violators. Previously, such violators would have had to serve out their sentences after being returned to jail or prison. But the new law allows the state to credit the violator with the time he was out on parole.

Prosecutors have reacted either with caution or resistance, and Montgomery’s complaint alleges the law may be unconstitutional or the state may be applying it in an unconstitutional manner because they are releasing felons who were serving time when the law was passed this spring. Its provisions are retroactive, which Montgomery’s complaint says is unconstitutional.

Justice Secretary J. Michael Brown appeared Tuesday morning before the Interim Joint Committee on Judiciary and he began his testimony by informing the committee of Tapp’s restraining order.

“It has been the position of the cabinet and the Department of Corrections that it had always been the intent and in clear language of the General Assembly that these provisions were to be applied current with the budget period itself and with the extant population,” Brown said.

The restraining order applies only to prisoners sentenced in the 28th Circuit but could have statewide implications as could any ruling Tapp issues as he hears evidence in Montgomery’s request for an injunction next week.

DOC Commissioner Ladonna Thompson said 1,016 prisoners have been discharged as of Monday, 887 of them parolees discharged because they met the provisions set forth in HB 406. On top of those, 226 inmates and parolees have been sentenced to in-home incarceration. Of those, 170 were inmates.

Thompson said so far the moves have saved the state “a little over a half a million dollars,” and projected savings through fiscal year June 30, 2010, are estimated at $12.5 million.

Committee co-chair Sen. Bob Stivers, R-Manchester, asked if those given discharge with credit for street time were all non-violent and non-sexual offenders, but Thompson said that isn’t the case. If the prisoner has been paroled and has not absconded or committed another felony, he or she qualifies for the provisions of HB 406.

Rep. Robin Webb, D-Grayson, one of the co-sponsors of HB 406, said the “tool of revocation (of parole) is there as a safety net – it’s a very powerful tool” to restrain parolees or those discharged with credit for street crime from committing subsequent crimes.

Chris Cohron, Commonwealth Attorney in Warren County and President of the Commonwealth Attorney’s Association, said it’s too early to evaluate the effects of the early releases. But he clearly has some doubts about it.

“Obviously, our group, because we’re the ones who put them there, are very concerned,” Cohron told the committee. He said commonwealth attorneys have been “flooded with victims’ calls” about the early releases.

“We are tracking those who come out,” Cohron said, “but unfortunately, just from statistical analysis, there is going to be some re-offending.”

The state’s corrections budget has grown to nearly $400 million from $7 million 30 years ago and Kentucky leads the nation in the percentage rise of incarceration. Currently, there are more than 21,000 state inmates, 8,000 of the lower level felony offenders housed in county jails. After several studies by University of Kentucky College of Law Professor Robert Lawson and a spate of news reports, including a series of stories last spring by CNHI News Service, the legislature debated ways to reduce costs and inmate populations.