Some say they have to be more lenient in setting bond for non-violent offenders because the jails just can't hold them all.
Others say they refuse to take overcrowding into account when deciding who stays in jail and who gets out.
"The system is packed" with people who have been charged with drug or drug-related crimes, said Harlan County Circuit Judge Ron Johnson. "It puts a great deal of strain on a jail. That produces a lot of problems."
Drug roundups through UNITE (Unlawful Narcotics Investigation, Treatment and Education) have brought more drug dealers off the street, and, UNITE officials say, made it harder to buy drugs in eastern Kentucky.
UNITE officers, working with local police and sheriff's departments, entered the fight against street-level drug dealers in 2004. They arrested 550 dealers in 29 counties, 42 in Harlan County.
With the first such roundup in Harlan County, the problem of a jail bursting at the seams came front and center for local officials.
In December, a drug roundup in Harlan County ended with twice as many people in the jail as it was built to hold. There were 124 prisoners in a jail built for 62.
Law enforcement officials say UNITE has brought more resources and more communication to the process of building strong cases against drug dealers.
But the more cooperative system for arresting dealers at one end has led to a bottleneck at the other.
"When we arrest a lot of people in one day, it does clog the jail," said Harlan County's Commonwealth Attorney Henry Johnson. "Our jail is usually full already."
Karen Engle, executive director for UNITE, said the agency works to hold arrest numbers down in roundups.
She said the roundup style of making arrests is necessary, if not ideal. Arresting dealers one-by-one, she said, can ruin an investigation by tipping off other dealers that they may be next.
The UNITE law enforcement director, Dan Smoot, agrees. He says roundups prevent suspects from finding out the identity of informants, and prevent undercover officers from being discovered before solid cases are made.
"It doesn't take long for people to find out what we're doing and who's assisting us," Smoot said.
"We cannot stop arresting people and simply let them by just because jails are full," Engle said. "We realize that's a problem, but we can't stop arresting them simply because they have to sleep on a mat."
Smoot said UNITE usually lets judges and jailers know when a roundup is coming so they can make room.
Sometimes, prisoners are sent to other counties when the jail here gets too full. But moving prisoners costs the county, and the other jails are full too, said Harlan County Jailer Curt Stallard.
"It's a Catch-22," said Harlan County Sheriff Steve Duff. "The jails are overflowing, but you still have to arrest them."
In Harlan County, a new jail is scheduled to be finished by the summer of 2006; until then, Stallard said he'll just have to "do the best we can with what we've got."
Stallard summed it up: "We wouldn't have a problem if we didn't have a drug problem. No problem at all."
Who stays, who goes
Johnson said he weighs a lot of factors when deciding whether to let someone out on reduced bail or without bail: a person's criminal record and ties to the community; a judge's responsibility to protect the public and finally, room at the jail.
With less serious offenses, he says he's more likely to grant a reduced bond or a release without bail because the jail is full.
Johnson says he uses common sense and is guided by the recommendations of pretrial officers in these decisions, but he'll feel better when the new jail is built and space is less of an issue.
"The fewer factors you have to weigh, the closer you'll get to protecting the constitutional rights of the prisoner and the rights of the people to be protected," Johnson said.
He isn't the only judge in eastern Kentucky looking for ways to ease the strain of drug arrests on the county jails.
Letcher County District Judge James Wood said early release of some prisoners has had to become an option for him too.
For non-violent offenders, Wood said he now has to consider letting them out to make room for those charged with more serious crimes. He said he has also begun using home incarceration more often, "just because the jail is so crowded."
Judge Kelsey Evans Friend in Pike County, though, said he doesn't consider how full the jail is when he decides who to let out and who to keep in.
"I've had as many as 273 in a jail that holds 143," Friend said.
The overcrowding, he said, "does not affect (his) resolve to see to it that the people who need to be in jail stay in jail."
According to the Department of Corrections, there were almost 1,000 more people in jail every day in 2004 than in 2003. From July 2003 to June 2004, there were, on average, 5,617 inmates in county jails each day, versus 4,840 from July 2002 to June 2003. The estimated cost of housing a prisoner in jail for one day is $27.23.
That doesn't include medical costs, which Capt. Lura Adams at the Harlan County Detention Center said tripled in the month of December, the month of the county's most recent roundup.
Six counties in Kentucky are expanding their jails or building new ones in 2004. Between 500 and 600 new beds are expected.
Harlan County's new jail, expected to be finished in 2006, will solve many of the overcrowding problems the old jail faces now, said Stallard. The facility features detox rooms, a medical center and around 200 more beds. The entire cost of building the jail, for now, is on the shoulders of the county, Stallard said.
"We're hoping the state will help some," he added.
While building more jails may solve the problem of space, it probably won't solve the root of the problem that is landing so many people behind bars in eastern Kentucky.
Most of the people arrested for dealing drugs, says Robert A. Thomas, Harlan County's public defender, are supporting their own addictions.
"I think we could cut down on the number of people charged with trafficking just by treating the number of addicts we have," Thomas said.
UNITE, a program that kicked off in 2004 with the law enforcement efforts "to make sure drug dealers knew we weren't playing," said Engle, is working through a three-prong approach.
Treatment and education are vital if the struggle against drug addiction in Kentucky is to make headway, she said. Through UNITE, more than 40 people have found treatment for drug addiction, and around 120 people are participating in drug court. Drug court is an alternative to incarceration which monitors participants for drugs and helps them with employment and education.
Gov. Ernie Fletcher announced Monday that some state money has been set aside for drug treatment centers in Kentucky. The $9.5 million in funds are expected to build between 10 and 12 apartment-style rehabilitation facilities throughout the state.
The facilities would be linked to the corrections system, said Mike Townsend, of the Kentucky Housing Corporation, which is administering and providing some of the funds.
He said the rehab centers would help address the "chronic shortage" of treatment options for drug addicts in Kentucky.
Through the community-based UNITE coalition and Harlan Countians for a Healthy Community, Harlan County is applying for enough funds to build and run one of the facilities.
The money will be awarded on a competitive basis, and Townsend said the first of the centers could be up and running by January 2006.