Veto of mass incarceration bill gives Kentucky supermajority a shot at redemption

Republished from Kentucky Lantern

FRANKFORT — As I sort through the remains of this session, I keep returning to something I’ve heard said, only half-jokingly, about Kentucky: We waited until after the Civil War to join the Confederacy.

It feels like the legislature is doing it again.

White grievance and white supremacy animated this session. Republicans were out to put Black people in their place. No one said it like that, of course. But the subtext came through clear enough.

The biggest example was not the attack on diversity, equity and inclusion — painful as it was to watch — which, thankfully, fizzled with no anti-DEI legislation enacted. It was the roaring revival of “tough on crime.” 

Policing and criminal punishments fall disproportionately hard on Black Americans. Our carceral state is a remnant of chattel slavery. None other than U.S. Sen. Rand Paul has called mass incarceration the “new Jim Crow.” A lifetime of severely reduced earnings await people who have been in prison. That hardship compounds through communities and generations as poverty and inequality are perpetuated and human potential goes to waste.

And, yet, Kentucky’s Republicans passionately — gleefully — recommitted themselves to mass incarceration — in proud defiance of all the last 40 years has taught.

When confronted with facts or challenged by data, they got huffy. 

House Majority Whip Jason Nemes, R-Middletown. (LRC Public Information)

The very lawmakers who do nothing to stem the flood of firearms into our communities voted to hold teenagers accountable for gun violence. Carry a gun and you’ll be an adult in the eyes of the law even if you’re 15 and your neighborhood is an arsenal, according to Senate Bill 20 which is becoming law without Gov. Andy Beshear’s signature.

Beshear has vetoed the sweeping House Bill 5, which does away with any pretense that the penitentiary is for penance and rehabilitation — at least for the more than 1 in 5 prisoners who will be in for violent crimes under the bill’s expanded definition. We can pray that the enhanced legal protections for defenders of property won’t invite another tragedy like the shooting of Trayvon Martin, 17, armed with a pack of Skittles and dead for wearing a hoodie in the wrong place.

I’ve always thought of Rep. Jason Nemes as a wonkish, open-minded, Libertarian-ish conservative. But there he was taking his place in the pantheon of red-faced Southern pols, thundering on the House floor: “How many times can you burn down a house? How many people do you get to rape? How many people do you get to assault with deadly weapons? How many people do you get to kill before we put you away forever?”   

What is going on? 

Giving everyone the benefit of the doubt, I admit that people are unsettled — scared, even — by the uptick in crime during the pandemic, a surge that is subsiding

The push for the self-defeating overhaul of Kentucky’s criminal code comes from white Republicans from Louisville. As the world was shutting down for COVID-19 in 2020, downtown Louisville saw weeks of protests of the police slaughter of Breonna Taylor. Louisville is where homelessness is most visible in Kentucky, though there are plenty of homeless Kentuckians across the state.

Donald Trump sets the tone, while conservative think tanks feed Republican lawmakers cut and paste solutions that they regurgitate, no questions asked. 

Rep. Jennifer Decker, R-Waddy, presents her changes to the Senate’s bill limiting diversity programs in public colleges and universities, March 15, 2024. (LRC Public Information)

This session’s malign spirit was captured for me on a Friday in mid-March: On one end of the Capitol, Republican Rep. Jennifer Decker was explaining how “intellectual diversity” would be achieved through a state-imposed system for policing campus discussions of race, sex, colonialism, power and privilege, while also quickly dismantling diversity offices and staffs.

On the Capitol’s other end, two Republican Senate leaders provided a real time demonstration of the GOP-approved marketplace of ideas by getting in the face of a Democratic colleague who had dared challenge the empirical basis for the push to imprison more Kentuckians. 

Senate President Robert Stivers and Republican Floor Leader Damon Thayer rushed across the floor to chastise Sen. Karen Berg. What set them off seems to have been Berg’s assertion that research citations backing the anti-crime law had been plagiarized. The citations were, indeed, copied and pasted from a Georgia think tank’s proposal for Atlanta, as Sylvia Goodman reported for Kentucky Public Radio and LPM News. 

Also, many of the citations have little or nothing to do with the bill, while some — from “renowned criminal justice reformers who spent their careers arguing for alternative methods to deterring crime or exposing the racial biases of the American justice system” — provide evidence against the measure.

This would constitute intellectual fraud in some circles, as Berg noted, to Stivers’ consternation.

Senate President Robert Stivers, R-Manchester, comments on the conference committee report to House Bill 6, the biennial state budget, March 27, 2024. (LRC Public Information)

Stivers provided another memorable moment when he stood before the Senate on Feb. 8 and wondered aloud why Kentucky can’t be more like Boston or have a Research Triangle like North Carolina. “Tell me why the state of Kentucky cannot emulate that type of dynamic?”


The man who’s enshrining denial of climate science in state law by yoking Kentucky to coal-fired energy wonders why we’re not a hotbed of scientific inquiry.

Stivers presides over a body that has usurped medical decisions for pregnant women and transgender kids and passed an anti-vaccination conspiracist bill. Talk about a formula for repelling the highly educated and young.

Stivers’ caucus sees a record budget surplus not as an opportunity to invest in education or housing or to ease child poverty through a state earned income tax credit. They see a chance to keep cutting the income tax, benefiting most those already on the economy’s high end.

I get that tackling poverty is slow, complicated work, especially in Kentucky where the economic deck has been stacked against whole regions.

Zero sum thinking is always tempting: One person or one group’s gain must inevitably come at another’s loss. Such logic has kept white Southerners in political line for a long time.

But what if it’s not catering to the already well-off that lifts all boats? What if a rising tide of equality would give Kentucky the lift it needs? What if Kentucky made a fraction of the commitment to education that has put Massachusetts (or, as some say, Taxachussetts) in the economic cat bird’s seat. What if there were fewer guns and more decent housing? Fewer inmates and more breadwinners? 

Beshear has given the supermajority a chance to redeem itself by upholding his veto of tough-on-crime HB 5. He rightly called it an “unwieldy bill that would criminalize homelessness and significantly increase incarceration costs without any additional appropriation.” 

Lawmakers can come back next year and enact the parts of HB 5 that make sense. 

Meanwhile, this legislature has demonstrated nothing so much as the need to teach young Kentuckians how to think critically — about race, equality, inclusion and who they trust to lead them into the future, not the past.


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