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Eliminating cash bail would reduce incarcerations, save counties money, advocates say

Messenger-Inquirer - 2/10/2019

Feb. 10--During last year's General Assembly, the major crime bill supported by Gov. Matt Bevin included a provision to eliminate cash bail for certain defendants determined to be a low risk to public safety. But that provision was removed from the bill during the legislative process.

Although the chances of passing "bail reform" might not be any better this year, advocates for reform say eliminating cash bail for certain defendants would save counties money, help defendants and not impact public safety.

Others, including Daviess County judges and those who spoke before a joint House and Senate committee on judicial matters last week, said they have concerns about a system that would require an inmate automatically be released if they are determined to be a low or moderate risk, either to public safety or of not making court appearances. Such assessments, judges said, have been wrong before and a judge is needed to determine if a person truly can be released without bond back into the community.

Rep. John Blanton, a Saylorsville Republican and retired Kentucky State Police trooper, is sponsoring House Bill 94, the only bail reform bill filed for consideration during the current session.

"Bail reform is being talked about not only in Kentucky, but across the country," Blanton said in a recent interview. The inability to pay cash bail can unnecessarily keep minor offenders in jail, he said.

"We have hundreds of new laws on the books" for minor offenses, Blanton said. "Often times, we are having people arrested, and it's their first offense or a minor offense, and they can't post bond.

"They end up sitting in jail," Blanton said. "We have a lot of people living paycheck to paycheck. You or I might be able to come up with $500 (for bond), but a lot of people can't come up with $500."

Blanton's bill, if approved, would prevent judges from imposing financial bond in certain circumstances. The bill would allow judges to decide whether a person determined to be of low-to-moderate risk to public safety, or of not appearing in court for future hearings, can be released with conditions. Those non-financial conditions would be imposed with the goal of reasonably ensuring public safety or that the defendant will return to court.

Risk assessments are conducted by the Administrative Office of the Court's Pretrial Services division.

A low-to-moderate risk defendant not released from jail by a judge, and people determined to be a high risk of flight or a danger to the public, would be given a detention hearing within five days of being ordered held under Blanton's bill.

At a detention hearing, the judge would be required to look at factors such as the defendant's criminal history and ties to the community, employment, finances and if the person has a substance abuse issue. The judge would use those factors to determine if any non-financial conditions could be imposed that would allow the person to be released.

Some factors would be deal-breakers. If a defendant committed a violent or sexual offense with a deadly weapon, committed such an offense while on probation or parole, is facing two or more charges of violent or sexual offenses or committed an offense where the victim sustained a physical injury, the judge could order the person held until trial. The defendant would have the right to rebut the judge's findings.

If a defendant is not a risk to the public but is at risk of not making future court hearings, cash bond could be imposed, according to Blanton's bill.

When people who can't afford bond sit in jail, that has consequences, Blanton said.

"They end up losing their jobs," Blanton said. Having low-level offenders in jail also affects counties, because counties pay all the costs of incarcerating people prior to conviction, he said.

"It costs our counties money, it costs people their jobs and it's causing people to go into a downward spiral" of crime, he said.

The Pegasus Institute, a Louisville policy center that describes itself as "an independent, non-partisan, privately funded research organization," released a report on bail reform in 2017. Among its findings, the report says in 2016, 30 percent of defendants jailed on non-violent and non-sexual offenses in Kentucky could not post bail. Those defendants spent an average of 109 days in jail, and 70 percent were evaluated to be low-to-moderate risk by Pretrial Services, the report found.

The Pegasus Instituted estimated in 2016 counties spent $152.044 million incarcerating people who could not afford to bond out of jail.

Josh Crawford, the Pegasus Institute's director of criminal justice policy, said people held in jail for inability to pay bond are more likely to commit new offenses. The report found a low-risk defendant held in jail for two to three days as 17 percent more likely to commit a new offense within two years, compared to a person released within 24 hours.

"My theory is the increase in recidivism is specifically (in) low-risk individuals," Crawford said. "Those are folks who sway back and forth between civil society and criminality."

A factor that grounds low-risk offenders in civil society is a job, but if a person is in jail for a few days for inability to pay bond, "you are not coming back to a job" upon release, he said.

In terms of the amount counties spend on housing inmates, "there's obviously a huge economic impact" when people are jailed because they can't post bond, he said.

"Our county jails are at 120 percent of their design capacity," due to the number of people incarcerated, Crawford said. Kentucky jails are projected by have inmate populations 140 percent of design capacity within 10 years, he said.

At a hearing on bond reform last week in Frankfort, judges expressed concern that they would lose the ability to determine if a person judged low-to-moderate risk needed to be incarcerated. The hearing discussed bail reform in general and did not look at the specifics of Blanton's bill.

Clark and Madison County Circuit Judge Jean Chenault Logue told the joint committee of judicial matters that making the Pretrial Service risk assessment the sole determining factor on whether a defendant is released would create problems.

"I do not think that would be a safe decision," Logue told legislators.

Campbell County Circuit Judge Julie Reinhardt Ward told lawmakers that a survey of a number of Kentucky judges found "70 percent had little or no confidence" in the pretrial risk assessment.

"No one is ignoring" the assessment, Ward said. "Everyone is using it." But the risk assessment doesn't take factors into account factors such as if a person has a substance abuse disorder, what the person is currently charged with or if they were out on parole when charged with the new offense, Ward said.

"We all recognize it can be an important tool, but by itself, it's not sufficient," Ward told lawmakers.

Daviess Circuit Judge Joe Castlen said last week that defendants with substance abuse disorders who are released often pick up new drug charges. What judges need are more options to send people to drug treatment.

"This is the sort of thing that wreaks havoc with the system, when you have so many drug laws, but there's no effort by the legislature to address the problem, to get them into treatment," Castlen said.

When asked if he thought pretrial assessments he'd seen in court evaluated a defendant as being too low of a risk, Castlen said, "On a consistent basis? I'd say a very significant number of them are too low."

Daviess District Judge David Payne said he was not familiar enough with Blanton's bill to comment. But he said the state has taken steps to get low-level offenders out of court. In some cases, a person judge to be low-level can be released without the issue going before a judge.

"That's not bad, as long as the public realizes it's not the judge releasing them," Payne said.

"I see a lot of cases where it's not a violent offense (and) I'll release them on a unsecured bond," meaning they only have to pay bond if they violate the conditions of their release, he said.

When determining if a person should be released without a bond, judges look at the defendant's history, Payne said.

"Generally, if I see someone over and over, even if (they're evaluated as) low risk, I'm going to keep them for a few days."

Daviess Circuit Judge Jay Wethington said, "my initial thought is we have one of the best pretrial release systems in the country," but added that a "uniform approach" to determining if a person should be released from jail would not work.

"We make those decisions on an individual basis," Wethington said. "... The pretrial (assessments) are very valuable tools, but judicial discretion is the order of the day."

Wethington said it's "not very often" he sees a pretrial risk assessment he disagrees with, but, "I still make a determination based on the individual's criminal record."

James Mayse, 270-691-7303, jmayse@messenger-inquirer.com, Twitter: @JamesMayse

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(c)2019 the Messenger-Inquirer (Owensboro, Ky.)

Visit the Messenger-Inquirer (Owensboro, Ky.) at www.messenger-inquirer.com

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