What you need to know about Kentucky’s persistent felony offender law
What is the persistent felony offender law? Experts on the Kentucky PFO law weigh in on its meaning and impact on the state’s prison system.
Imani Dennison, Independent Lens
- Kentucky’s persistent felony offender (PFO) law, enacted in 1974 and expanded in 1976, allows for enhanced sentences for repeat felony offenders.
- While the law aims to increase public safety, critics argue it contributes to high incarceration rates and pressures defendants into plea deals.
- Other states, including California, Montana, Idaho and North Dakota, have similar laws enhancing sentences for repeat felony offenders.
At the end of every successful criminal prosecution, one question hangs over the heads of offenders, victims and attorneys.
What will the final sentence be?
While Kentucky has penalty ranges for those convicted of a felony, a decades-old law lets prosecutors pursue harsher punishments for those with previous felony convictions.
It’s called the persistent felony offender law and in recent years, it’s faced reform efforts.
A 2022 Louisville Courier-Journal investigation found that in the decades since its adoption, the persistent felony offender law has helped fuel the state’s incarceration rate, among the highest in the country, and added years of prison time to the sentences of tens of thousands of people.
How Kentucky PFO law started and how it’s changed
The persistent felony offender law was enacted in 1974, as part of a complete revision of the criminal code.
The law was designed for “extraordinary use” and only applied to adults with two previous felony convictions that resulted in actual time spent in prison — no suspended sentences or probation.
In 1976, lawmakers greatly expanded it, with huge repercussions on Kentucky’s prison populations.
They created the second-degree persistent felony offender category, allowing someone to get a harsher punishment after just one conviction, and removed the requirement that someone must serve prison time to be eligible for a PFO charge.
The new law meant many people convicted of first-degree PFO had to serve at least 10 years in prison before being eligible for parole.
Who qualifies as a persistent felony offender?
Under the current law, anyone over 21 years old, with at least one prior felony conviction for a crime after turning 18, could qualify as a second-degree persistent felony offender.
Qualifying as a first-degree persistent felony offender is largely the same, except a person must have at least two prior felony convictions or one felony conviction for child sex crimes.
The prior convictions can be from any jurisdiction, including those outside the state, However, a defendant’s latest felony must have been committed within five years of the completion of their last sentence.
However, in cases where someone was convicted of two or more crimes and served concurrent or uninterrupted consecutive prison terms, those only count as a single conviction under the persistent felony offender law.
Kenton County Commonwealth’s Attorney Rob Sanders said drug possession, while a felony, is not subject to the sentencing enhancement, meaning those struggling with substance use won’t face harsher penalties.
What does punishment look like?
First-degree persistent felony offenders face an enhanced sentence of 20 to 50 years or life imprisonment if newly convicted of a Class A or B felony. If their newest conviction is a Class C or D felony, they face a sentence of 10 to 20 years.
The law mandates that second-degree persistent felony offenders be sentenced to a prison term within the penalty range for the next highest degree of felony. Those sentencing ranges include:
- 20 to 50 years or life in prison for a Class A felony.
- 10 to 20 years in prison for a Class B felony.
- Five to 10 years for a Class C felony.
- And one to five years for a Class D felony.
So, a persistent felony offender convicted of a Class C felony would face the same punishment as someone convicted of a Class B felony.
How the law has been used in Northern Kentucky
It is not uncommon to see the sentencing enhancement invoked in Northern Kentucky courtrooms, particularly in violent crime cases.
Jamie Simpson of Covington was sentenced in March to 60 years in prison for holding his wife captive and torturing her for hours before barricading himself inside her home in a lengthy standoff with police.
As part of his conviction in a four-day trial in Kenton County Circuit Court, Simpson received a first-degree persistent felony offender enhancement. In Simpson’s April 2023 indictment, prosecutors cited prior convictions for burglary, robbery and assault as reasons for their pursuing a sentencing enhancement.
Johnathan Maskiell was deemed a second-degree persistent felony offender as part of his April guilty plea for murder in the killing of his cellmate at the Kenton County Detention Center.
Prosecutors pointed to a 2017 burglary conviction in Clermont County as qualifying him for the enhancement, however, they only recommended a 25-year sentence.
“Increased punishment for convicted criminals who continue to break the law improves public safety by removing repeat offenders from our community for an extended period of time,” Sanders said in a statement.
“Obviously, if someone doesn’t break the law, they never have to worry about a sentencing enhancement, but if a felon learns their lesson and takes advantage of the second chances most first-time offenders receive, PFO will not come into play,” Sanders added.
Damon Preston, who leads the Kentucky Department of Public Advocacy, said that while the state’s PFO law has been trimmed back in recent decades, it still applies to almost all felonies, even nonviolent ones.
“What it did to a sentence is so extreme in essentially doubling a sentence for one prior felony and if you’ve got two prior felonies, it can as much as quadruple the sentence,” Preston said. “I do believe that’s still the case.”
Preston said there should be limitations imposed on when and how the sentencing enhancement is used. He added that he’s not opposed to there being an enhancement when it’s necessary to protect the public or when someone has been repeatedly convicted of similar crimes.
The law currently gives prosecutors too much leverage in the courtroom and pressures defendants to take a plea deal over defending themselves at trial, Preston said.
“It’s so broad and so draconian that the penalty for turning down a plea is just too high,” Preston said of the sentencing enhancement.
Do other states have similar laws on the books?
Kentucky is not the only state with a law allowing for harsher punishments for offenders with felony histories.
In California, an offender can receive a five-year sentencing enhancement for each prior felony conviction they have, with the enhancement running consecutively to their latest sentence.
Montana law allows for someone to be designated a persistent felony offender upon their third felony conviction, although at least one of those crimes must be a sexual or violent offense.
Idaho similarly imposes a sentencing enhancement on offenders for their third felony and North Dakota can label someone a “habitual offender” for prior felonies – a label that comes with harsher sentencing.
The Louisville Courier-Journal contributed to this report.
