Judges: Don’t take away ‘discretion’ with bail reform

Published 8:13 pm Wednesday, February 6, 2019

Kentucky legislators heard from numerous judges and prosecutors Wednesday, who warned them to be careful about enacting new reforms to Kentucky’s bail system.

Three circuit court judges and one district court judge told members of the state House Standing Committee on Judiciary they don’t want to see any changes in the law that would remove their “discretion” when it comes to how they set bail for criminal defendants.

“At some point in time, I think some of the judges start(ed) to be concerned that discretion becomes an ugly word,” Judge Julie Reinhardt Ward from Kentucky’s 17th Judicial Circuit testified. “… Judges aren’t looking for discretion for our egos; we’re looking for discretion because we do have obligations to our voters and the community to make sure that we are making good decisions and taking all of the factors into consideration.”

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A national movement to reduce the use of financial bail — the requirement to pay money to leave jail — has made its way to Kentucky, where a bill proposed by Rep. John Blanton (R-Salyersville) could significantly reduce the use of cash in the state’s pretrial bail system.

House Bill 94 would prohibit judges from imposing financial bail conditions on pretrial defendants — people who have been accused of a crime but are still considered innocent — if the purpose of the financial requirement would be to “ensure the safety of the public,” to prevent the defendant from obstructing justice, or “for the purpose of preventing the release of the defendant.” Judges could still require financial bail in order to ensure defendants still show up for court, but it would have to be in an amount the defendant could afford.

The bill would also grant judges new authority to detain any defendants without the option of release if they pose “a danger to the public if released.”

Under the bill, how judges proceed with setting bail would be guided by whether a defendant scores as a low, moderate or high risk in two categories — likelihood to reoffend and likelihood to appear for their next court date.

Judges could detain defendants of any risk level if they choose, but the bill creates a presumption that low-risk defendants would be released without financial conditions. Any defendants detained without bail would be entitled to a detention hearing, where they could be represented by an attorney and make their case for being released.

Circuit Judge Jean Chenault Logue told lawmakers she sees the effects of the drug epidemic as a bigger problem for Kentucky’s criminal justice system. Letting people out of jail who have drug problems could create more problems than it would solve, she said, because without treatment for their drug use, many will reoffend very quickly.

“It is virtually impossible to get somebody treatment at the pretrial level,” she said, unless family members happen to have enough money to pay for a bed in a treatment program.

Risk and means

Judges also warned against relying too heavily on the scores from Kentucky’s pretrial risk assessment tool, a proprietary algorithm from the Laura and John Arnold Foundation that judges are now required to consider in making their bail decisions.

“I don’t think anyone says they don’t want this tool; we’re just saying it can’t be the only thing that we can rely on, because then we have abdicated our authority to some people that we don’t even know and who are in private industry,” said Patricia M. Summe, a judge in Kentucky’s 16th Judicial Circuit.

Summe said eliminating the state’s cash bail system would prevent the community from participating in the process. Family and friends can often post cash bail for a defendant, at which point they have “leverage” over the defendant to push them to behave properly, she explained.

“Is that a healthy system? Do we want a system that’s just within the government itself?” she asked. “The government decides if we’re going to detain you. The government decides if you’re getting released. So you take out family, you take out community when you take out the other thing that participants in the community can bring to the table, which is money from Mom, Dad and other family members.”

Summe also questioned the large body of reporting and opinion from around the nation that cash bail results in poor people being kept in jail because they can’t afford to get out.

“None of it is verified,” she alleged. “… We’re having a tough time saying are we really keeping people in jail because they are poor? Because we don’t have any verification that they’re in jail because they’re poor.

“Are they in jail because their parents want them to not get out until they can get them into recovery? If the answer is we’re keeping people in jail because they’re poor, that is not what we want to do. That is important information, but I don’t know that that is what the information will turn out to be.”

Summe said she believes a lot of the time when someone is in jail because they don’t have the money for their bail, it’s “because someone feels uncomfortable putting up the bond to release them.”

Ward, the judge from the 17th Circuit, said some judges are concerned that the Arnold Foundation keeps some of the information about how it calculates risk levels under wraps as a “trade secret.”

“So this private organization who is preparing this risk assessment, who is relying on us judges to use it, basically won’t give us the information that we need to determine how they came up with the risk assessment at all,” she said. “So that is very concerning.”

Ward said she also doesn’t like how the risk assessment ignores certain factors, including what your current charge is; whether you’ve used drugs or alcohol; and whether you’re on probation or parole.

Kentucky’s risk assessments are created using the Public Safety Assessment created by the Arnold Foundation — an assessment based on years of research and evidence that has been validated using data from more than 2 million cases in Kentucky, Tara Blair, executive officer for Kentucky’s Department of Pretrial Services, told The Advocate-Messenger in 2018. The same assessment has been statistically validated in other jurisdictions, she added.

Each risk assessment includes an extensive check of that person’s background, including Kentucky and nationwide criminal history checks, prior convictions and prior instances of failure to appear.

Ward told lawmakers Wednesday she fears a move away from cash bail and toward a “preventative detention system” like the much talked-about one in Washington, D.C., would be prohibitively expensive for Kentucky.

D.C. has a population of around 1 million and a pretrial budget of $63 million, she said. In Kentucky, with a population of more than 4 million, the pretrial budget is $17 million.

“If we went to a preventative detention type of program, you can see how the cost of pretrial is going to go through the roof,” she said.

‘Bad apples’

Rob Sanders, the commonwealth’s attorney for Kenton County, also testified that judges need discretion to do what they believe is best. He acknowledged the national movement to increase the number of defendants released within three days, in order to minimize impacts to families and jobs.

But, he said, “in 72 hours, most of the drug addicts that we’re dealing with are still high. We haven’t even sobered them up yet. They’re not thinking logically or rationally. All they’re thinking about is getting high again.”

Sanders said lawmakers often like to complain they “don’t want judges to legislate from the bench.”

“I would suggest we be careful that the legislature is not judging from Frankfort,” he said. “If our problem is in a few individual circuits or districts where there are, for lack of a better term, ‘bad apples’ that are keeping people in that should not be in and are not utilizing the tools that they have to let low-level defendants out of jail on bail or granting them a bail that they can make, then let’s deal with it on the individual district or circuit and deal with those individual judges that are setting those unreasonable bonds, rather than trying to come up with one bill that is going to be imposed on all 120 counties in the state and all 57 judicial circuits, just to fix the few where we’re having a problem.”

Others who testified included Laurie Dudgeon, the director of the Administrative Office of the Courts; District Judge J. Foster Cotthoff; Christian County Jailer Brad Boyd; Pulaski County Attorney Martin Hatfield and Scott West, a deputy public advocate with the Department of Public Advocacy.

Dudgeon told lawmakers there were 10,025 defendants in Kentucky jails on Nov. 1, of which 7,753 were being held “purely pretrial,” meaning if they were given a bond and could meet the bond conditions, they could be released. The vast majority of those being held were being held at the circuit level on felony charges; only about 5 percent were being held at the district level, she said.

“We just want to make sure that we’re all on the same page about what the problem is,” she said. “And it’s a system problem.”

Dudgeon said Kentucky is the only state where wanton endangerment is considered a felony charge and the only state where prosecutors aren’t involved in the charging process. More than a quarter of those defendants being held on Nov. 1 were being held on Class D felonies, many of them for drug possession or wanton endangerment.

“There is some work here to do,” Dudgeon said.

‘Liberties of the many’

Deputy Public Advocate West was the only person called to testify who was strongly in support of bail reform.

West said there are court precedents stretching back decades, finding that cash bail which someone cannot afford is unconstitutional.

“Money bail is keeping people in jail,” he said. “Bail that people with means could make. … The result is (wealthy people are) able to get out, while Kentucky has an overcrowding problem. There’s a lot of people who to the public at large, they’re nameless, they’re faceless. But they have families; they have value.”

West said he believes bail reform in Kentucky “should be something that nearly eliminates money bail,” but still allows for it “in doses.”

He picked up on Summe’s concern about letting families use cash bail to have influence over someone with a drug problem, and said there is room for judicial discretion in setting cash bail. But money should not be used as a way to detain people, he said.

“If you do bail reform, please do something that will actually move the needle on release and get a lot of people released,” West said. “Yes, there will be some people who are released who will reoffend; they may not come back to court. There will be many more who will come back to court and will not reoffend.

“Don’t let the few take away the constitutional liberties of the many.”