What we think: Review or repeal shock probation

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There are many problems with the program and how it is used.

Why is shock probation part of the judicial landscape in Kentucky?

There are only seven states that have such a program, which allow judges to release from prison convicted criminals – many of them felons – simply because they have faced the “shock” of life in a cell.

Why does Kentucky’s having shock probation seem to be such a disservice to law enforcement, prosecutors and the judicial process in general?

Why does Kentucky’s system appear to be so porous that daily we hear of the affects of such releases that make us cringe and cry at the same time?

Why do we continue to be shocked at the discretion employed by judges to free individuals who have been convicted of a crime related to someone’s death?

Shock probation first caught our attention when Tonya Nicole Brown, the woman who left her baby to die in a restroom in Shelbyville, was allowed to go home to her family in Lexington after she pleaded guilty to manslaughter and accepted a 10-year prison sentence.

We found the basis for this decision by Senior Judge Steven Mershon to be questionable, and we questioned his permissiveness and apparent disregard for the life that was lost.

When we began to examine our outrage that Ms. Brown was allowed to avoid punishment for a crime she admitted that she committed,  we were amazed to discover that more than 8,000 felons had been released in the past five years via shock probation and that one in three of them was returned to jail for subsequent new offenses or for violating their probation.

Was no one paying attention to this trend? Were these numbers within some sort of “acceptable” range?

But then came the story of Beth McIntosh-Shreve, a woman from Shelbyville who was brutally murdered in 2007 and her body stashed as a playing piece in a game of heinous hide-and-go-seek. Her family had to allow the prosecutors to bargain with her killer, James Benjamin Gary, simply to find the body he had stashed in a park in St. Matthews.

Mr. Gary was a convicted felon out of jail on shock probation.

Surely such a repugnant situation would gain the attention of lawmakers and the judiciary and cause them to question the design and application of the shock probation law.

Surely they have to wonder if this law indeed was working as intended.

We understand this law helps with the costly crowding in jails, which the state is trying hard to reduce.

We also understand that there are some first-time convicts who truly are shocked and overwhelmed by incarceration – to which we respond, isn’t that the idea of punishment in the first place? – but the problems here are twofold:

There are no limits to what sort of criminal a judge can release.

There is no greater review of those decisions.

In considering the statistical evidence we have viewed and the details of cases such as that involving Ms. McIntosh-Shreve, in our view no single judge should have such inscrutable latitude in releasing admitted convicts.

Why not employ a panel of judges? Why not make this an appellate process outside of the circuit court level? Why not make it more difficult to be released on shock probation?

We see too much evidence begging these questions:

§       Two women – Carolyn Scharf of Louisville and Debbie Moskwa of Ohio – shared         with us how they had lost family members in terribly negligent traffic accidents only to see those convicted in those deaths be freed. Is there no accounting for the feelings of those whose lives were changed by criminal acts?

§       A woman in Frankfort was released on Friday after being sentenced to 10 years for trying to hire someone to murder her fiancé. Does spending 6 months in jail mean that she no longer is angry with her fiance and no longer wants him dead?

§       A man in Fayette County is returned to jail after his release on shock probation because he was caught driving at twice the legal limit of alcohol impairment.

§       An attorney for Joshua Fast, in prison for his role in the burglary that led to the death of his friend in Shelbyville, was in court Monday asking that his client be released on shock probation. Whether Mr. Fast should have been in jail is a reasonable question, but he pleaded guilty and accepted the sentence and already had violated bail by being arrested while awaiting trial. Should he be free now because he is “shocked?”

Here is a mitigating principal for us: If the person admits guilt, says, yes, I did this crime, shouldn’t that person then be treated a bit more harshly than those who are jailed simply on the collective opinion of a jury?

If you admit to the crime, agree to the sentence, shouldn’t you expect to do the time?
Shouldn’t that factor into whether shock probation is granted?

Perhaps it does, but we are not convinced.

And that’s why shock probation either should be repealed or rewritten, and we implore the next session of the General Assembly to examine it, to make these changes:

§       No person who pleads guilty to a felony should be eligible.

§       No person who is convicted in the death of someone should be eligible.

§       There should be specific interpretations as to whether persons with previous criminal records should be considered.

§       A single judge at the circuit-court level should not make the decision about shock probation requests.

If such requirements had been in place, Beth McIntosh-Shreve might be alive today. Her children might not have a life without their mother. Cindy and Bruce McIntosh might not be grieving for their daughter.

And, we would presume, our judicial system would have much less guilt on its conscience.

A bad law should not incarcerate us, the general public.

Join us in imploring our state legislators:

State Sen. Paul Hornback and state Rep. Brad Montell: Free us from shock probation as we know it.