Is Kentucky’s cash bail system fair? This defendant says no.
Keith White has not been convicted of the crimes he was accused of last August.
Yet, he was in the Fayette County Detention Center for 83 days. White couldn’t post the $7,500 bond set by now-retired Fayette County District Court Judge Megan Thornton after he was arrested on possession of cocaine, possession of marijuana, two traffic violations and a gun charge on Aug. 3.
“I couldn’t call anyone to even post the bond,” White said in an interview room at the jail in mid-August. “I wish they would either let me out or just get this over with … let me start serving my time.”
White’s mother is more blunt.
“The system is not fair,” said Venieshia Henton. “They are letting out rapists.”
White’s experience is not unique in Lexington, but he likely wouldn’t have spent much time in jail in many other Kentucky counties.
Geography often determines how justice is meted out in Kentucky.
If you get arrested in Fayette County you are more likely to have to pay to get out of jail before your trial than almost any other county in Kentucky, according to data from the Kentucky Administrative Office of the Courts.
In 2018, Fayette County judges set a financial bond 82 percent of the time. That’s the ninth highest rate in the state and much higher than the state average of 60 percent. In Jefferson County, only 47 percent of defendants are required to post a bond.
Only judges from Boyle, Mercer, Laurel, Union, Webster, Boyd, Henderson and McCracken counties set bail as a condition of release more than Fayette County judges. The data includes only cases in which judges have leeway to decide bail and excludes administrative releases, where pre-trial officers release those charged with low-level misdemeanor crimes without appearing before a judge.
In Martin County,only 32 percent of defendants had to post a financial bond to get out of jail, the state’s lowest rate. But in neighboring Pike County, 77 percent of defendants were ordered to pay a financial bond.
Repeated attempts by the Herald-Leader to interview Fayette County District Court judges, who set initial bonds at arraignment, were denied.
Instead, the Fayette County District Court judges released a statement:
“The Fayette District Court Judges will not comment on any specific bail bond statistics for Fayette County or other counties. Whenever we set a bond, we balance the rights of the accused against the danger to the community and the likelihood that the defendant will not appear for court. There are numerous factors to consider and different judges may not view each factor in the same light or reach the same conclusion. We will continue to pay close attention to this issue.”
Kentucky Supreme Court Chief Justice John D. Minton said the courts system has tried to make setting bonds more consistent across the state. Those efforts include allowing pretrial officers to release low-level offenders after arrest and implementing a statewide assessment tool to help determine if someone is a flight risk or a danger to the community when setting bail.
Despite these changes, 2018 data show wide disparities across the commonwealth. Meanwhile, there is a push across the country to move away from cash bail all together. Using cash to get out of jail discriminates against the poor, advocates argue.
In Kentucky, though, bills aimed at reforming the bail system have stalled in recent years amid push back from judges who defend the financial bond system.
Many judges zealously defend their ability to show discretion, saying they are familiar with the repeat offenders who appear before them and know when someone is a danger to the community or won’t appear for court dates. They look at a defendant’s income and make sure they aren’t setting cash bonds too high, judges argue.
“I believe in judicial discretion, I was a trial court judge,” Minton said. At the same time, for the justice system to be fair it must be consistent, he said.
That’s not true in Kentucky, he said. And none of the people in question have been convicted of the charges against them, Minton said.
“It’s justice by geography,” said Cherise Fanno Burdeen, chief executive officer of the Pretrial Justice Institute. “It’s justice by race. It’s justice by economic status.”
The Pretrial Justice Institute has partnered with the state courts on an awareness campaign called 3DaysCount, to highlight research that shows spending three days in jail can leave many people less likely to appear in court and more likely to commit new crimes.
Requiring a defendant to pay to get out of jail prior to trial is a tradition in Fayette County courts, according to state data.
In 2014, Fayette County judges required defendants to post bond 86 percent of the time, well above the statewide average of 59 percent that year. In 2018, that number was at 82 percent, compared to a statewide average of 60 percent.
Across the county line to the west or north, it’s a different story.
In Woodford County, only 47 percent of defendants were required to post a bond in 2018. In Scott County, it was 50 percent, according to state data.
Those numbers are no surprise to public defenders, who represent people who can’t afford a private attorney.
“We have 36 offices in 56 judicial circuits,” said Damon Preston, the state Public Advocate with the Department of Public Advocacy, which oversees the statewide public defenders office. “Some of our offices straddle different judicial districts. We will have one client in one county that will be arrested on a charge and another client in another county arrested on the same charge and has a similar criminal history and one will get out and the other will have a high cash bond.”
Scott West, deputy director of the public defenders office, said many judges and prosecutors don’t realize how disparate bail is across the state because people become accustomed to local practices.
“You just get used to how your local judge does it,” said West. “Many people don’t even think about challenging it.”
For example, Fayette County judges are setting bail amounts for drug trafficking charges that are much higher than judges in other parts of the state.
For felony A drug trafficking, the statewide median bail was $10,000 in 2017. In Fayette County, it was $57,600, or nearly six times the state midpoint.
People charged with even the lowest drug trafficking charges in Fayette County sometimes have higher bonds than those charged with the most serious sex crimes. The median bail set for a D felony drug trafficking charge was $25,100 in 2017, compared to $17,500 for an A felony charge of rape, sodomy or sexual assault.
“We have noticed in Fayette County that it’s drug trafficking charges that are getting higher bail amounts,” Preston said.
‘Mass incarceration prior to conviction’
Meanwhile, the number of people in county jails continues to climb in Kentucky.
It’s not clear how much this is costing taxpayers. The Kentucky Association of County Officials, the state Department of Corrections and the Kentucky Jailers Association do not track how much local governments spend on jails.
A 2017 Prison Policy Institute Study estimated local governments across the country spend $13.6 billion annually to detain people who have not been convicted. In a snapshot of Kentucky’s prison population on November 1, 2018, about 75 percent of the 10,025 defendants who were in jail awaiting trial were eligible for release. The majority of those defendants were charged with Class D felonies, or the lowest felony offense.
“When we talk about mass incarceration, what we are really talking about is mass incarceration prior to conviction,” said Burdeen, of the Pretrial Justice Institute.
Statewide, there are nearly twice as many people in county jails as state prisons. For the week of June 6, there were 12,564 inmates in state prisons compared to 24,907 in county jails, according to information from the Kentucky Department of Corrections. In addition to people waiting for trial, county jails also house those serving misdemeanor sentences and often have contracts to house state and federal prisoners.
During the same week in June 2014, there were 19,772 inmates in the state’s jails — a more than 25 percent increase in five years.
In Fayette County, the number of people booked into the jail has decreased by 34 percent over the past nine years, but people are staying longer, data shows.
Although bookings dropped from 25,629 in 2008 to 16,824 in 2017, the number of people in the jail continues to creep up, according to figures provided by the city of Lexington. In 2008, the average daily population was 1,263. In 2017, the average was 1,396.
The jail’s budget also continues to climb. The current-year budget is $38.6 million, an increase of about 25 percent from $30.7 million in 2010.
A lack of staff and an increase in inmates at the Fayette County Detention Center meant the jail burned through almost all of its overtime budget in just four months last year. The city had to come up with an emergency staffing plan after detention center employees said they were burned out from working multiple overtime shifts. Part of that plan included moving inmates to state prisons.
Lexington’s jail, like nearly every jail in the state, is overcrowded.
Fayette County has 1,266 beds but housed 1,353 inmates the week of June 6, according to the Kentucky Department of Corrections.
Statewide, there were 4,263 more inmates than the 20,644 beds available in county jails during the week of Feb. 7.
Michael Harris, the president of the Fraternal Order of Police Town Branch Lodge 83, which represents Fayette County Detention Center employees, said the system has to look at alternatives to detention.
“Our job is not to second guess the decisions of our judges,” Harris said. “However, we believe there are instances where alternatives to pretrial detention could be explored.”
Harris said other detention methods, such as supervised release or ankle bracelet monitoring, require additional funding “but those costs probably are far less than the expense of holding a person in custody who is not determined dangerous or a flight risk.”
Harris said he understands it’s a complex issue, but something must done.
“We need to evaluate our current staffing and overcrowding situation,” he said. In Fayette County, it’s not just the jail population that created problems, city officials said. They have also had sicker inmates who need to be escorted to hospitals for treatment, which eats up staff time. In January, the city rolled back some of the staffing changes at the detention center after the jail population decreased. In May, the number of inmates dropped to 1,355, which is still more than the 1,266 bed capacity.
In one Kentucky county, a 2018 study showed that overuse of cash bail was partly to blame for its jail overcrowding.
In Boyle County, a September report by a jail expert blamed “discriminatory” bond practices, a sluggish court docket and revocation of bonds for that jail’s overcrowding. The report noted that non-financial bonds are rarely if ever used in Boyle and Mercer counties.
Judges who serve Boyle and Mercer counties require financial bonds at the highest rate in the state, according to state data. In 2018, 86 percent of defendants in Boyle and 83 percent in Mercer were ordered to pay a financial bond to get out of jail.
Judges blame drugs, not bail
Some judges who testified Feb. 6 before a legislative committee considering a bail reform bill told lawmakers that it is drug addiction, not the over-use of cash bonds, that is driving up county jail populations.
Circuit Court Judge Jean Chenault Logue, whose judicial circuit includes Madison County, said the county built its jail in 1990 to house 185 inmates. The jail was averaging 200 inmates by 2000. “Then heroin and methamphetamine came in,” Logue said.
On January 2, the Madison County jail had 402 inmates.
“You see 402 people in a jail, you think those judges aren’t letting anybody out. But that’s not the case. “ Logue said.
“The people we’re holding were trafficking in heroin, methamphetamine or fentantyl,” Logue said. “We are doing everything we can to get low-level misdemeanors out of the jail.”
During an Oct. 25 state legislative committee, other judges told lawmakers they make sure to release people who have a job and are eligible for bail.
“It’s extremely rare that they have employment,” said Campbell Circuit Court Judge Julia Ward. “So when we talk about these people not being in the workforce, these people are routinely not working.”
Boone and Gallatin Circuit Court Judge Rick Brueggemann said he asks defendants about their work history and tries to determine how much a defendant can afford.
“This is the mechanism that we use to make sure that money bail does not discriminate against the poor,” Brueggemann said.
Life after 83 days in jail
It’s been 10 months since Keith White was first arrested and spent 83 days in jail awaiting his trial. There has been no verdict in his case.
After being indicted on felony charges, White’s case moved to circuit court. On Oct. 25, then-Fayette Circuit Court Judge Pamela Goodwine released White but set no bail. He was given instructions to check in with a court officer, pass random drug tests and show up to court.
Burdeen, the pretrial justice advocate, said what happened to White doesn’t make sense. It also shows the inequities in the system.
“You can be deemed a threat on a Tuesday and then on a Wednesday they let you out,” Burdeen said.
After White was released in October, he got a job and is still working.
He’s determined to fight the charges pending against him. White, 37, has had a series of jobs over the years, including working in juvenile detention and coaching.
In jail, White said, hope is scarce for people who can’t pay to get out. Most are in a limbo. That’s why so many people plead or cut deals with prosecutors. They just want to get credit for time served and get out, White said.
While he was in jail, he followed the case of Jacob R. Heil, 18, a University of Kentucky student who was arrested for driving under the influence after hitting and killing a 4-year-old child during a UK football game in September. Heil was later indicted on vehicular homicide charges in early February. His bond was set at $3,500. A family member paid it, according to court records.
Heil is white. White is black. Heil does not have a criminal history. White has been arrested on other drug charges in the past, according to court records.
Meanwhile, White said there are people in the Fayette County Detention Center who have multiple prior charges for drug-related crimes. They are too poor to pay their bail. They’re not dangerous. They’re addicts, he said.
“They got to stay because they have a substance abuse problem,” White said.