Is Kentucky’s cash bail system fair? This defendant says no.
The Commonwealth is in dire need of a measured, well-planned, comprehensive criminal justice system overhaul. Our inmate population, including state and private prisons, county jails, and halfway houses, averages over 24,000 people a year, costing taxpayers millions of dollars and making us the state with the ninth highest incarceration rate.
Kentucky inmates are primarily white males, although black inmates are incarcerated at a rate that significantly exceeds the percentage of black population in the Commonwealth. The number of female inmates has dramatically increased as a result of the opioid drug crisis.
Drug and property crimes account for more incarcerations than violent and sexual offenses combined, and approximately 37% of the inmate population is between the ages of 26 and 40. Ideally, the criminal justice system provides justice by convicting and punishing the guilty and preventing recidivism, while protecting the innocent. An effective system prioritizes both public safety and fair, responsible treatment of defendants and their victims.
The need for reform has been given greater attention over the past few years resulting in some small, albeit narrowly focused, changes. Defense attorneys’ focus on decreasing incarceration rates has resulted in programs to reduce inmate sentences as well as alternative sentences for less serious offenses. Expungement, allowing for the erasure of certain prior offenses, is now a possibility for eligible ex-offenders.
Unfortunately, reforms addressing bail have failed, resulting in lost wages and to many unnecessarily long pretrial detentions. Victims’ advocates directed their attention to state constitutional protections for crime victims, leading to the passage of Marcy’s Law in November 2019. Sixty-three percent of Kentucky voters approved the law granting enumerated rights to victims and their families, only to have it recently invalidated by the Kentucky Supreme Court.
Concentrating on successful reentry of ex-offenders, community advocates support measures to improve the ability of inmates to become productive citizens once released from incarceration. Some reforms, such as supervised compliance credits for those on probation and parole and a re-entry drug participation pilot program (for offenders convicted of drug offenses) will assist inmates with developing skills necessary for successful re-assimilation into society.
Prosecutors and law enforcement champion public safety through the definition and passage of new criminal offenses and increased penalties for some existing offenses. It is important to recognize the benefits of these reforms for the various constituencies within the criminal justice system. However, they are not a panacea for our outdated penal code, with its piecemeal selective reforms and its failure to fully and reasonably address the concerns of all participants in the criminal justice system.
Significant advances have been made in the fields of criminology, biology, mental health and restorative justice since the last major revision of Kentucky criminal law in 1974, yet our penal code, for the most part, remains mired in the outdated thinking of the 20th century. Kentucky deserves a penal code reflecting these advances.
It is time to reassess our current criminal offenses, their penalties, and how we approach sentencing to both punish and rehabilitate offenders. It is time to assemble experts from all constituencies — law enforcement and prosecutors, the defense bar, judges, victims’ rights advocates, corrections officers, educators, mental health experts — to utilize the advances in crime prevention, mental health treatment, and rehabilitation in modifying our current criminal laws to better meet our goals of public safety and fairness.
A thorough and total revision of our criminal laws and procedures can result in increased public safety, restoration of the well-being of crime victims, increased rehabilitation, improved reentry of offenders, and decreased rates of incarceration and recidivism. However, such a radical, and necessary, change is only possible if all stakeholders set aside their particular myopia and work together to improve the criminal justice system for all citizens of the Commonwealth.
Kathryn Hendrickson of Maysville is a writer, lawyer, nurse and mother of four. Email her at firstname.lastname@example.org