Report: Most KY jail inmates awaiting trial are non-violent and pose little risk

Kentucky’s overcrowded jails are stuffed with thousands of defendants accused of non-violent drug offenses, many of whom may not need to be incarcerated prior to trial, suggests a new report by the administrative arm of the state court system.

The majority of these defendants are at low risk of failing to appear in court or commit a second crime, the Administrative Office of the Courts analysis determined.

Of the 6,796 defendants eligible for release prior to trial on Nov. 1 last year, approximately 71 percent were being held on non-violent Class D felony charges, the analysis showed. The most common Class D felony was for drug possession. A distant second was theft.

The majority of those held on a Class D felony were at low risk (38 percent) or moderate risk (31 percent) for failing to appear in court, the report found. They also ranked low on the Administrative Office of the Courts’ assessment for new criminal activity — or probability they would commit another crime.

Tara Blair, director of pretrial services for the courts, said the analysis showed what the courts had long suspected — drugs and drug possession charges are keeping more people in jail prior to trial. That mirrors trends in the state prison population, she said.

“We can make some improvements on the issue of bail and letting some of those people out who may not need to be there,” Blair said. “But this is a much more complex issue than that. This may mean more comprehensive criminal justice reform. We have to come up with alternatives for people with substance use disorder.”

Most county jails don’t offer drug treatment programs for people prior to conviction.

“A lot of treatment is focused toward the convicted population not those that are waiting for trial,” Blair said. “There is so much more in this area that we can do.”

The courts started the analysis last year after seeing a drop in the number of people released from county jails prior to their charges being adjudicated — either a conviction or a dismissal of charges. The courts wanted to know who was being held or detained prior to trial and why.

The jail population changes daily. The courts looked at every defendant in custody on Nov. 1, 2018.

On that date, 24,672 people were in 80 jails in Kentucky — that’s more than 4,000 people over capacity. Of those, approximately 10,010 defendants were pretrial detainees. Of those defendants, approximately one quarter had a holder from another jurisdiction which made them ineligible for pretrial release. A holder means they may have a probation violation on a state charge or a pending charge in another county or state.

The report is one of the first of its kind. There have been other estimates on the state’s pretrial population and who was eligible for release but those numbers were not always accurate.

The report comes as the state is grappling with overcrowded jails. A recent Lexington Herald-Leader series found that Kentucky’s dozen prisons are full, so half of the state’s more than 24,000 prisoners are housed in county lockups alongside local inmates who are awaiting trial or serving short sentences for misdemeanors. Three dozen jails were filled beyond the 138 percent limit recommended by the U.S. Supreme Court in a 2011 inmate overcrowding decision, creating dangerous and sometimes deadly conditions.

In another series published earlier this year, the newspaper found that where a person lives often determines if they have to post bond to get out of jail before trial. For example, Fayette County judges require bail more often than most other jurisdictions and at higher rates than the state average. In 2018, Fayette County judges set a financial bond 82 percent of the time, well above the state average of 60 percent. In Jefferson County, only 47 percent of defendants are required to post a bond.

Moving from detention to treatment

There have been some changes in recent years to get more people with non-violent drug possession charges out of jail cells and into treatment beds, but progress has been slow.

During a Sept. 13 Interim Joint House and Senate Committee on the Judiciary, commonwealth attorneys said a pilot program called “rocket docket,” which allows criminal charges to move quickly through the courts, has meant more people are getting into treatment more quickly.

Kenton Commonwealth Attorney Rob Sanders said prior to rocket docket many judges were keeping people with drug possession charges in jail mainly for the defendants safety. Those judges were worried the person would get out, overdose and die. And too often, that happened, he said.

Damon Preston, the state’s Public Advocate, who oversees the statewide public defender system, said judges may believe keeping someone with a drug problem behind bars helps protect them. But it may not.

“While jail may or may not provide temporary security against tragedy, jail does nothing to address an addiction and often makes the defendant more susceptible to an overdose upon release,” Preston said.

The Administrative Office of the Court’s pretrial report shows that too often people with drug problems are being treated as serious criminals when they aren’t, he said.

“It’s almost as if we have a system where serious crimes and dangerous people are pretty rare so we treat the non-serious crimes and non-dangerous people as if they are bigger deals than they really are,” Preston said.

To date, 41 of the state’s 57 judicial circuits have rocket dockets, said Warren County Commonwealth Attorney Chris Cohron.

Treatment instead of prosecution?

But the program is not without its problems, according to some criminal defense attorneys.

Sen. Robin Webb, D-Grayson, is a criminal defense attorney and member of the Senate Judiciary Committee. Webb said during the Sept. 13 hearing not all rocket dockets are run the same way across the state since it was implemented in 2015.

Webb said she’s concerned that the expedited process means defendants are given a plea deal when all of the evidence has not been presented or even collected. For Webb and other criminal defense attorneys who are trying to advise their clients, that can be extremely problematic, she said.

“I’ve had offers revoked if I don’t take the rocket docket,” Webb said. “There is more to this than efficiencies and saving money. You’re talking about constitutional guarantees and the right to due process.”

The state should also consider other ways to get people charged with drug possession into treatment and out of jail, Sanders and Cohron said.

“Ohio has treatment in lieu of prosecution,” Sanders said. Other states allow police officers to make the decision to send people to treatment verses charging people with a crime.

Cohron said he has an intern looking at programs in Ohio and elsewhere to determine their effectiveness and costs.

When the legislature returns in January, it’s likely prosecutors will push for changes in the law to allow deferred prosecution, particularly for misdemeanor charges. If county attorneys could intervene and offer someone treatment before the person commits a felony, it could keep more people with drug and alcohol problems out of jail, Cohron said.

“We need more options and earlier interventions,” he said.

Rep. Jason Nemes, R-Louisville, has authored several bills dealing with sentencing, prison and other criminal justice issues in recent years. He said it’s time Kentucky re-examines whether housing drug addicts in jails is the right investment of taxpayer dollars.

“We have open treatment beds in Kentucky,” Nemes said. “We have to better utilize the resources that we have. I don’t care if it’s post-conviction or pre-conviction,” Nemes said. “Housing these people in jails where there is no drug treatment, no rehabilitation, no career counseling is not effective.”