‘Make things a little better.’ Bail reform advocates ready to take another shot.
A proposal to reform Kentucky’s broken bail system — making it easier for some defendants to await trial at home rather than in often dangerously overcrowded jails — is scheduled to be heard Wednesday by the House Judiciary Committee.
Lawmakers will hear a substitute version of House Bill 410, which was filed just last week. Sponsors have tried to find compromise language that will satisfy all parties interested in the subject, including judges, prosecutors and defense lawyers, following the failure of a bail-reform measure last year.
The bill does not make sweeping changes in how criminal defendants are treated, said House Judiciary Chairman Jason Petrie, R-Elkton, who is one of the co-sponsors. Instead, Petrie said, at several stages in the legal process, it tries to nudge the courts in favor of releasing inmates who safely can be freed before trial.
“We don’t have to tear down the criminal justice system to fix it,” Petrie said in an interview Tuesday.
“In fact, we can’t,” he said. “Why? Because we have thousands of defendants entering the system at any given moment. The flow never ends. So let’s make moderate, reasonable changes and try to make things a little better, wait and watch for six months, nine months, and then see where we are.”
On any given day, Kentucky’s county jails hold more than 10,000 people who have been charged with a crime and are awaiting the resolution of their case, which might be a year or more in the future. Most of them pose little risk, according to a report issued last year by the Kentucky Administrative Office of the Courts.
Many of those inmates simply can’t afford bail. They don’t have the $1,000, $5,000 or whatever sum a judge decided was appropriate to secure their freedom so they could hang onto their jobs, vehicles and homes and help their lawyers prepare their defense. People who have the money get out; people who don’t are stuck, sometimes living on the concrete floors of cramped jails holding twice as many inmates as intended.
Data shows that bail decisions in Kentucky are arbitrary from county to county and courtroom to courtroom, depending on the discretion of the judge. In Martin County, 68 percent of defendants are released before trial without having to pay bail. But at the other end of the state in McCracken County, only 5 percent get that chance.
And there is no rational connection between the bail amounts assigned by judges and the risks that defendants are believed to pose either for re-offending or failing to appear in court, according to a study last year by the Kentucky Center for Economic Policy in Berea. Defendants rated as low, medium and high risk all are about as likely as each other to get bonds set at the same levels.
Among the changes the House bill would make in the legal process:
▪ At an arraignment, defendants would be ordered released without financial conditions, such as cash bail, unless a judge decides that they pose a risk of failing to appear in court or would be a danger to others. The standard in these decisions would be “by a preponderance of the evidence,” which is 51 percent, a fairly low standard.
When deciding whether defendants would be “a current danger to others,” judges could consider their new criminal charges, past criminal records and “reasonably anticipated conduct ... if released.” Judges’ decisions would have to be explained in writing so appellate courts could review them later.
“Look at whether they’re a risk to others. Look at whether they’re unlikely to appear,” Petrie said. “Unless the answer to one of those is ‘yes,’ they should be out and about.”
▪ For most inmates charged with low-level Class D felonies and misdemeanors, a credit of $100 per day served in jail while awaiting trial would be applied to their bail or other financial conditions of release. Current law already allows for such credits for time served, but the practice is seldom observed in Kentucky criminal cases.
▪ Within 10 days of arraignment and every 60 days afterward, judges would have to hold hearings to review the cases of jailed inmates awaiting trial to determine why they haven’t yet met the financial conditions of release. As the hearings pile up on court dockets, Petrie said, this might “provide an implicit push” for judges to find ways to release people they believe safely can return to the community, but who lack the money.
▪ If global positioning system technology is ordered to be used on an inmate to track him as a condition of release, the cost would be paid by the county government, not the inmate, if the inmate made less than 200 percent of the federal poverty level. The cost for such devices can include a $175 to $200 start-up fee and daily operating fees of $5 to $40 a day, according to an analysis attached to the bill.
Petrie said he could not predict the bill’s chances in the legislature. There is still opposition to making any changes in the inmate release process, he said.
“I’d rather not be passing a bail bill,” he said. “I’d rather the judges work this out on their own. This is really their territory, not the legislature’s. And I’m sure that they’ve taken some steps toward that end, but it doesn’t seem to have been adequate.”
