Kentucky needs equitable pretrial release system

Published 7:27 pm Thursday, June 13, 2019


The Advocate-Messenger

Those arrested and charged with crimes in Kentucky are innocent until proven guilty, but a new report finds where those individuals live might mean the difference between freedom or incarceration.

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The report, “Disparate Justice,” was released Tuesday by the Berea-based Kentucky Center for Economic Policy.

According to the report, data from Kentucky’s Administrative Office of the Courts “shows widely varying rates between counties in the use of cash bail and in the ability of those arrested to meet those monetary condition.”

The report shows the share of cases where defendants were granted release pretrial without monetary conditions ranges from 5 percent in McCracken County to 68 percent in Martin County. The percentage of defendants who pay the monetary conditions of their bonds vary as well — from 17 percent of cases subject to monetary bail in Wolfe County to 99 percent of the same cases in Hopkins County.

“The data suggests an arbitrary system of justice based on location,” Ashley Spaulding, author of the study wrote. “In certain counties, people with low incomes face much higher risk of harms from being detained in jail ranging from job loss to higher likelihoods of being found guilty and committing crimes in the future. In addition, counties that detain more people on monetary conditions face additional jail costs many of them cannot afford.”

These new findings further prove the need for reform in Kentucky’s justice system; in this case, it’s the pretrial release system.

The place someone calls home should not impact whether they spend their time free or incarcerated while they wait for trial.

There should be a level playing field for all those charged with crimes in Kentucky, based on the severity of the crime and not the community in which the crime occurred.

It is unfair one person charged with a violent crime in Martin County might walk free until their court dates while another charged with the same crime in McCracken County remains incarcerated.

Most concerning are the detrimental effects pretrial incarceration can have on individuals and families.

“It can take months for a case to work its way through the system — time during which an individual who is incarcerated pretrial cannot earn income, keep a job or provide caretaking at home, for example,” Spalding wrote. “Even those found not guilty of the crime for which they were arrested may lose months of their lives behind bars.

“Research also shows people incarcerated pretrial are actually more likely to be found guilty and to receive harsher sentences. Defendants are also more likely to plead guilty (even when they are innocent) when detained pretrial in order to be able to return to their homes and communities. As a result, individuals detained pretrial are more likely to face the collateral consequences of having a felony record — economic insecurity and poor health, not only for themselves, but for their children and other family members as well. Pretrial incarceration is also associated with an increased likelihood of criminal activity in the future.”

Additionally, needlessly incarcerating individuals adds unnecessary costs and overcrowding at already struggling local jails.

Defendants are people are charged with crimes, often serious crimes. Some percentage of them committed the crimes they are accused of. But our justice system is based on the belief these individuals are presumed innocent until proven guilty.

Some people have access to money for bail that others do not.

“The consequences of pretrial detention for individuals, families and communities when a person cannot afford bail are devastating and far-reaching — and important context for a conversation about Kentucky’s low and disparate rates of non-financial pretrial release,” Spalding wrote. “Because people with low incomes struggle to pay bail — and because historic, structural barriers have resulted in disproportionately low incomes for people of color — these communities in our state bear the brunt of the consequences of our unreformed pretrial system. Several studies have also found that people of color are often treated more harshly than white people during the pretrial release decision-making process.”

The system should not be creating additional problems.

Money bail is typically used as a way to ensure appearance in court, but the study finds this method isn’t as effective as many think.

There are non-financial options for release:

• Release on recognizance: A person is released without any specific conditions other than appearing at required court dates.

• Unsecured bond: The judge sets a bond amount but the person is not required to pay it in order to be released; the money would only come due if a person does not come to designated court dates.

• Surety: A third party must sign with the defendant to allow for release; usually the third party is required to own property, although a lien would not necessarily be placed upon the property.

A study by the Pretrial Justice Institute found unsecured bonds are as effective as money bail in protecting public safety and ensuring defendants appear in court.

“Kentucky pretrial data shows the appearance rate in court for those released pretrial is already pretty high at 79 percent overall — 63 percent for those at highest risk of ‘failure to appear,’” Spalding wrote in the report. “In addition, 89 percent of individuals released pretrial in 2018 were not charged with new crimes before trial — including 76 percent of those identified by the assessment instrument as having a higher risk of re-offense.

“And as a reference point, in Washington D.C., where nine of 10 defendants were released with non-financial conditions in 2015, 90 percent of those released came back to court, and 91 percent did not re-offend during the pretrial period,” she added. “In other words, D.C.’s high rate of pretrial release does not correlate with higher rates of flight or pretrial crime relative to Kentucky.”

This study provides evidence it is time for serious justice reform in our state. Some steps have been taken in recent sessions of the General Assembly, but this new report indicates the critical need for this area of the system to specifically be addressed.

The pretrial release system should be streamlined across the state, creating a fair and equal process for all those charged with crimes in the commonwealth.