How does the US bail system work?
The arraignment docket contained more than 100 names on a hot day last summer. Judge Meghan Thornton, then the Chief Judge of Fayette County District Court, cycled through the names with practiced proficiency.
One by one, inmates in orange jumpsuits shuffled in front of a hulking video monitor in a small room in the Fayette County jail. Thornton would read the charges, flip through their record, and set bail. If an inmate asked for the bail to be lowered by paying 10 percent of the bond amount because they couldn’t afford the full amount, she often refused.
“I don’t do 10 percent,” she told several inmates.
On a different day that week, Judge Joseph Bouvier went out of his way not to set a cash bail. He would ask if there were any family members of the inmates in the courtroom. If there weren’t, he’d ask the inmates if they had a family member or friend who would be willing to vouch for them.
According to Herald-Leader analysis of bail data collected by the Kentucky courts system, the likelihood of a defendant being ordered to pay cash bail varies widely from county to county, court to court and judge to judge.
Someone arrested in Jefferson County could be released with a pledge to return to court while someone arrested on the same charge in Fayette County might be kept in jail for a month because they can’t pay cash bail.
This system, and the inequalities it contains, is under scrutiny in several states, including Kentucky. Amid a national push to reform the way the judicial system handles financial bail, Kentucky activists, defense attorneys and lawmakers of both political parties are clamoring for change.
Their arguments are bolstered by reports of overcrowded jails throughout the state as tough-on-crime policies to combat the opioid epidemic have taken their toll. Kentucky is paying $650 million a year to incarcerate adults, according to the Cabinet for Justice and Public Safety.
Still, state lawmakers have largely avoided the issue.
Rep. John Blanton, R-Saylersville, introduced HB 94, a bill he hoped would help get rid of the inequality in the bail system while potentially providing relief to overcrowded jails.
Blanton’s bill didn’t eliminate cash bail altogether, as some other states have done. Instead, Blanton said it would have encouraged judges to only set cash bail when the person is considered a danger to the community or is likely to skip the trial. It would require detention hearings for situations in which judges decide to set a cash bail.
“I’m not trying to eliminate cash bail,” Blanton said. “I’m trying to make a fair and just system with blinders that keeps us from incarcerating people that doesn’t need to be incarcerated.”
But his bill met resistance. A group of judges, distrustful of the way the pretrial system assesses the risk level of people who are arrested, attempted to stop it in its tracks. They were joined by groups like the ACLU who support the concept of bail reform, but opposed the bill because they were skeptical that it would actually reduce the number of people in jail awaiting trial.
“I think if we do it wrong we’re going to hear about this for the next five to ten years,” said Kate Miller, the advocacy director for the ACLU in Kentucky. “And we’re not going to have more people released pretrial.”
Clamoring for change
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.
Activists acknowledge that some of those defendants need to stay in jail until their trial because of the seriousness of their alleged crimes, but from the high deserts of New Mexico to the streets of Philadelphia there is a concerted effort to subvert the tradition of cash bail.
In several states, civil rights attorneys have begun taking legal action against states to eliminate money bail. A 2018 settlement in Mississippi led to the city of Jackson eliminating cash bail in misdemeanor cases.
In Philadelphia, all it took was the election of a district attorney who used to be a public defender. In his first year in office, Larry Krasner, the city’s new district attorney, told prosecutors to stop requesting cash bail for a long list of crimes, according to the Philadelphia Inquirer.
A year later, his office said 1,750 additional defendants were released pre-trial and there was no increase in repeat offenses.
Krasner’s efforts mimic those made by courts in Washington D.C. in the ‘90s. D.C.’s city council voted to eliminate cash bail in 1991 and the courts there currently release around 90 percent of the people arrested and held overnight, according to the Washington Post.
In most places, however, it has taken statewide reform to change the system.
A constitutional amendment in New Mexico said people couldn’t be held “solely because of financial inability” to pay bail, which led to a battle in the legislature to set standards for when people can be released and on what conditions. New Jersey switched to a system that uses cash bail as a last resort.
In 2018, California became the first state in the country to eliminate cash bail altogether. Governor Jerry Brown signed a bill that would replace a cash-based system with one that bases the decision on the person’s past criminal record and the severity of the crime of which they’re accused.
Kentucky is not California.
Blanton said his bill, written by the conservative Pegasus Institute, would encourage judges to use cash bail only in cases where they felt the defendant was a danger to the community or likely to skip their trial date.
Under the proposal, someone accused of a crime would step before a district court judge. Already, judges are given a “pre-trial assessment” from a court staffer who looks at a defendant’s criminal record and other factors to determine if the accused is “low-risk” or “high risk.“ The judge would use that assessment and consider the current charges before deciding whether they would be eligible for release, perhaps with an ankle monitor or a family member to vouch for them.
If the judge decides they’re a danger to the community or likely to skip trial, the case would be sent to a defense hearing, where cash bond would be determined. Blanton said the defense hearing would have to be within five days of the arrest.
“It’s giving them that incentive not to use cash and it’s giving them other things to use,” Blanton said.
Some opponents of the bill suggested the defense hearing would overburden public defenders while others argued that five days is too long to wait before cash bail is set.
Other opponents argued the bill would violate the Kentucky Constitution, saying the right to cash bail is guaranteed unless voters approve a constitutional amendment, as they did in New Mexico and New Jersey.
“I think its going to present a constitutional issue or challenge,” Hardin County Circuit Court Judge Kelly Mark Easton told lawmakers at a hearing about bail reform last summer.
Blanton’s bill never got a committee vote.
In a discussion-only hearing held by the House Judiciary Committee, a panel of Circuit Court judges came out strongly against the bill, saying it would impede judicial discretion and citing a lack of trust among judges for the Administrative Office of the Court’s pre-trial assessments of risk, despite the fact that Blanton’s bill did little to eliminate judicial discretion.
Patricia Summe, the chief circuit judge in Kenton County, told lawmakers last summer that judges shouldn’t base their decisions on a computer program.
“It’s a good tool, but it’s not a complete tool,” Summe said. “The algorithm is automatically deemed to be more trustworthy than a judge who reviews the algorithm as well as the citation and the entire criminal history of the defendant.”
Circuit Court Judge Rick Brueggeman, who presides in Boone and Gallatin Counties, said cash bail makes sure defendants “have enough skin in the game ... so that they have something to lose and they’re going to look over their shoulder, so there will not be new criminal offenses.”
Blanton, though, said the bail system is keeping people in jail far more than it’s making sure someone returns to court.
“I don’t think that anybody who’s making those decisions knows what it is to live paycheck to paycheck,” Blanton said. “Are they intentionally trying to do that to them? I don’t think so. I don’t believe that for a minute. I believe they’re trying to help them by setting it at a lower rate. But the reality is that when they’re living paycheck to paycheck, they might not be able to come up with $500 dollars.”
Brad Clark, a former Public Defender in Fayette County who recently made the switch to defending clients for a private firm, said whether or not someone stays in jail largely depends on their wealth.
“I’ve got clients that are out on bond for having shot people,” Clark said. “Meanwhile, there are people in our jail that can’t afford our bond on their second DUI or their felony child support or receiving stolen property. And it’s silly that the ability to get out of jail should be based upon whether or not you have money.”