Reducing Cash Bail for the Poor: First Step in Solving the Rural Jail Crisis?

After a report criticized his court for setting high money bonds that resulted in a “bloated” local jail population, Kentucky Circuit Court Judge Darren Peckler changed course.

Enic Anderson spent 73 days in a rural Kentucky jail because he couldn’t come up with the required 10 percent of the $5,000 money bond set by the judge in a case of second-degree criminal abuse—a Class D felony.

But in an October court appearance, Boyle County Circuit Court Judge Darren Peckler agreed to lower the percentage to 5 percent. Anderson was out of jail the next day, after paying the $250 and a $25 bond filing fee, for a total of $275.

It was a small but telling victory in a long-standing nationwide struggle to reduce the burden of money bail for poor defendants in rural areas.

A study commissioned by Boyle and Mercer counties’ fiscal courts singled out Judge Peckler’s court for “discriminatory” bond practices and lethargic case-processing times that had resulted in “bloated” numbers of inmates in the local jail.

“The jail is greatly bloated by three factors: (1) very slow felony case processing, (2) an apparent refusal to set non-financial bonds, (3) a very high incidence of revocation of initial bonds and rearrest after being indicted by grand jury,” the report said.

Anderson’s attorney, Public Defender Jessica Buck, was quick to cite the study’s analysis in favor of her client.

She argued in her motion asking for an unsecured bond that individuals like Anderson should not be re-incarcerated, once they were successfully out on bond, simply because they have been indicted by the grand jury. “Now, more than ever, the law and public policy supports the release of Mr. Anderson,” she wrote.

Anderson’s was one of multiple cases heard during Peckler’s Oct. 16 circuit court date where the judge sparred with public defenders over financial bonds. But the fact he’s out of jail now means Anderson’s case may also be part of a new trend in Peckler’s court that is leading to more defendants being released pretrial.

Anderson had been charged with first-degree wanton endangerment, a Class D felony, and lodged in the Boyle County Detention Center.

According to the charge against him, he was asleep at 10 a.m. on June 5, when “his 2-year-old son exited the residence and walked to an apartment complex, knocking on doors until (a resident) made contact with the child.”

$2,000 to Get Out of Jail

He was given a $20,000, 10-percent bond at the district-court level, meaning he would need $2,000 to get out of jail while his case was pending. At the district level, defendants are often given “bail credit” of $100 a day; after 19 days in jail, Anderson had $1,900 in bail credit. He paid $100 and a $25 bond filing fee and was released on June 23, according to court records.

A Boyle County grand jury then indicted Anderson in the case, but modified the charge to second-degree criminal abuse, also a Class D felony. Peckler set a new bond for Anderson at $5,000 cash. Anderson hadn’t done anything to violate the terms of his district bond, but he was re-jailed on Aug. 6.

Such cases appeared to form a pattern in bond decisions affecting the county’s poorest residents. Kentucky’s 50th Circuit and District courts, which handle cases for Boyle and Mercer counties, have offered defendants non-financial bonds at the lowest rates in the state for years, according to data from the state Administrative Office of the Courts (AOC).

According to data published by the AOC earlier in the year, defendants in Kentucky criminal cases were offered non-financial bonds — a chance to get out of jail while still considered innocent without paying money — about 39 percent of the time in 2017.

But in Boyle County, the rate was about 4 percent; in Mercer it was 7 percent.

The local study, compiled by consulting company Brandstetter Carroll at a cost of $75,000, said Peckler “consistently” sets cash bonds for everyone indicted on a felony charge — $5,000 for Class D felonies and $10,000 for Class C.

“Bail credit, surety bonds or release on own recognizance (ROR) bonds are not utilized in Circuit Court,” the study states. “… The judge is, in essence, acting as a magistrate to set bonds anew. In doing so, he is disregarding evidence of success of defendants who appeared in court and remained crime-free while out on pretrial release under bond set by the district judge.

“As a result, more defendants cannot afford the new bond.”

Public Defender Buck said she agrees with the study’s recommendation that Peckler’s court stop requiring new bonds for everyone indicted by a grand jury.

But she also acknowledged court precedent is clear that nothing is legally being done wrong when someone is re-arrested after indictment.

Nevertheless, she added, “I don’t think that anybody who is successfully out on their bond conditions out of district court should be re-arrested simply because they’re indicted by a grand jury.”

Anderson had been “compliant with all urine screening” required by his bond at the district-court level, she wrote.

Jail vs Work

Anderson petitioned Peckler from jail, saying he needed to “get back to work to support my family … and move forward in being a productive member of the community.”

Anderson, a self-employed handyman, was “obviously…unable to support his family while he was incarcerated and, being self-employed, it’s even harder to rebuild that,” said Public Defender Buck.

“The reputation you build in the community when you’re self-employed — and then all of a sudden, you disappear for two months or three months, it makes it harder for him to get jobs in the future.”

Buck said Anderson’s incarceration also made it harder for him to pay any child support he owes.

“I’m not sure what the community got from incarcerating Mr. Anderson for another two months,” she said. “I don’t see how it made the community safer or how it helped reunite Mr. Anderson and his children. It just seems like a waste of taxpayer money.”

Buck said she has witnessed the recent changes in bonds noted in the study firsthand.

“I will say that there have been significant changes lately, particularly in circuit court,” Buck said during an interview about the case against Anderson. “(October) was one of the first months that I had more people released … than stayed in custody (after their arraignments)”

The changes in Peckler’s courtroom may be reflected in the Boyle County Detention Center’s population, which has been in the 220s multiple days this month, after peaking at more than 400 inmates multiple times in 2017.

‘A Quieter Jail’

The impact on the county jail population has already been noteworthy.

“I guess there’s a lot of get-out-of-jail-free cards right now, I don’t know,” Jailer Barry Harmon told the Advocate-Messenger. “It’s nice. It sure makes a quieter jail.”

On Nov. 15, the population even dipped below the jail’s rated capacity of 220, hitting 217 inmates at about 10:30 a.m. An analysis of jail records by The Advocate-Messenger identified 27 inmates out of those 217 who were facing non-violent, non-sexual charges and being held on financial bonds at the circuit court level.

While the jail is rated to hold 220 inmates, the local study notes that the real “operational capacity is 176. Average daily populations exceeding 176 put the jail in a gray area with regards to constitutional rights.

“A jail’s operating capacity should accommodate the peak populations to ensure provision of constitutionally adequate levels of confinement, even when confinement is temporary or short-term,” the country report stated, adding that the jail has been “unable to accommodate peak populations for at least the past 16 years.”

The local study found that the combination of delays in case processing and the use of financial bonds in the 50th Circuit Court led to many defendants remaining in jail for the duration of their case, whether or not they posed a risk of failure to appear or committing a new crime.

“An estimated 80 percent of low-level felony defendants who receive a one-year sentence will have served a ‘state year’ (about seven months) at time of sentencing,” the report states.

“The answer to the question of ‘Why does this happen?’ may lie in the discriminatory manner in which bonds are set, i.e. economically-able defendants are able to post bond, while the less affluent stay in jail.

“The fact that the poor stay in jail does not mean that they are greater risks for failure to appear or of committing new offenses while on pretrial release. Many court cases and a volume of research attest to the discriminatory nature of blanket application of secured (financial) bonds.”

The study’s recommendations included adding another circuit court date every month, allowing circuit court defendants to enter pleas more than once a month and eliminating Peckler’s cap on the number of pleas he will hear each month.

When someone is arrested for an alleged crime and booked into a jail, a Pretrial Services officer conducts a risk assessment, according to Tara Blair, head of Kentucky’s Department of Pretrial Services.

Using Risk Assessments

The risk assessments are created using the Public Safety Assessment developed by the Laura and John Arnold Foundation (LJAF) — an assessment based on years of research and evidence that has been validated using data from more than 2 million cases in Kentucky, Blair said earlier this year. The same assessment has been statistically validated in other jurisdictions, she added.

Kentucky’s Pretrial Services has used “an objective, statistically valid pretrial risk assessment since at least 2010,” according to the Kentucky Department of Public Advocacy.

A 2014 study by LJAF found that Kentucky’s use of a pretrial risk assessment tool, called PSA-Court, allowed judges to “reduce crime by close to 15 percent among defendants on pretrial release, while at the same time increasing the percentage of defendants who are released before trial.”

During the first six months of using PSA-Court, Kentucky judges released 70 percent of defendants pending trial, up from 68 percent the previous four years, according to the study.

“What makes the increase in release notable is that it has not come at the expense of public safety; to the contrary, it has been achieved alongside a decrease in pretrial crime,” the summary states,” the study said.

“… The average arrest rate for released defendants has declined from 10 percent to 8.5 percent.”

The push for bail reform has some big names in Kentucky onside, including state Justice Secretary John Tilley and state Supreme Court Chief Justice John D. Minton Jr.

Tilley said earlier this year at a conference on rural incarceration that legislation to limit the use of money bail “still has momentum” in the commonwealth.

“The real opposition comes from judges who think they’re having their discretion removed in terms of a release decision — that there’s some risk instrument … some machine that tells me I’ve got to release this person,” Tilley said.

“… The research is very clear. The best decisions come from using science along with professional discretion. So I’ve tried to make sure judges understand nobody is suggesting they have to give up their discretion … use your common sense, you can deviate.”

This is a condensed and edited version of a report that appeared in the Advocate-Messenger as part of a series looking into jail reforms in rural Kentucky. Ben Kleppinger is a staff writer for the Advocate-Messenger and a 2018 John Jay Rural Justice Reporting Fellow. The complete story is available here.


Consider a Defendant’s Family and Job before Pretrial Detention: Study

Courts should make decisions on whether to release criminal defendants ahead of trial using the same careful, evidence-based analysis now used for civil defendants, says a professor at the Wake Forest University School of Law.

Criminal courts should consider defendants’ personal and professional lives when determining whether to grant bail, according to a forthcoming paper in the Georgetown Law Journal .

Russell M. Gold, an associate professor at the Wake Forest University School of Law, argued that the “presumption of innocence” should be foremost in the minds of prosecutors during the pretrial process, reserving detention only for those cases where they can demonstrate “likelihood of a defendant causing irreparable injury.”

Gold said judges should be required to explicitly analyze how detention would harm the personal family or economic circumstances of defendants.

“Criminal courts should not simply ignore that a defendant may lose her job, housing, or custody of a child,” Gold wrote. “Rather, [they] should consider those costs to defendants, their loved ones, and the broader public; and detain defendants only when the benefits of detention outweigh those substantial costs.”

In his essay entitled, “Jail as Injunction,” Gold drew what he called a “troubling contrast” between how pretrial decisions were made in criminal and civil cases.

While motions for preliminary injunctions in civil cases are resolved based on written briefings supported by sometimes-extensive evidentiary submissions, and after often-lengthy hearings, pretrial detention decisions speed through the criminal legal system—affording defendants only minutes to explain why they should be permitted their freedom pending trial.

“This disparity is unjustifiable,” he writes. “It is troubling that people can lose their liberty without having been convicted of a crime more easily than a corporation can be ordered to stop doing some activity until the court can figure out who is right.”

Nearly half a million people who haven’t been convicted of anything spend on average one month in pretrial detention, according the U.S. Bureau of Justice Statistics.

Kalief Browder

Kalief Browder committed suicide after spending three years in pretrial detention on a charge that was later dismissed. Photo courtesy Wikipedia

For some, detention could last years, with tragic results. Gold cited the case of Kalief Browder, who committed suicide after spending three years awaiting trial in New York’s Rikers Island on a theft charge that was eventually dismissed. He was just 16 when he was detained.

Browder’s death led to senators Kamala Harris and Rand Paul and introducing—via a joint column in The New York Times—a bipartisan legislation to help states to tackle bail reform through federal block grants.

“In this historical moment, where pretrial detention and bail systems are changing in many jurisdictions, the preliminary injunction comparison offers a valuable lens through which to reconceptualize pretrial detention,” Gold writes.

The harms of pretrial detention extend to the entire judicial process, Gold wrote, noting that defendants held in detention before trial are often more likely to plead guilty or to be convicted.

“One recent study found that defendants who are detained due to their inability to afford bail have a 30 percent greater chance of being convicted and are likely to be incarcerated for 18 months longer than defendants who are not detained pretrial but are otherwise similarly situated,” he wrote.

Gold said adopting his recommendations could lead to lower costs of pretrial detention, post-trial incarceration, and reduced recidivism.

The full report can be downloaded here.

This summary was prepared by TCR news intern J. Gabriel Ware. Readers’ comments are welcome.


Reinventing Justice: Case Studies in New Thinking

Can local justice systems prevent people who shouldn’t be detained from ending up behind bars? Sometimes all it takes is smarter communications, according to a study of an electronic alert system devised by Durham County authorities in North Carolina—one of six case studies released by the Urban Institute on promising reforms underway around the U.S.

Can local justice systems prevent people who shouldn’t be detained from ending up behind bars?

Sometimes, all that’s required is a shift to improved communication models that “meet people where they are, clearly explain what they need to know to take action, and use persuasive and respectful language to overcome distrust,” according to an Urban Institute case study.

The study, part of a series highlighting innovative justice practices across the U.S. supported by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge Innovation Fund, examined reform efforts undertaken in North Carolina’s Durham County and California’s Santa Clara County.

Researchers found that a simple electronic alert system devised by Durham County that reminded people when they were due in court reduced the share of people who failed to appear for their scheduled court dates by six percentage points from September 2017 to May 2018.

And a so-called “No Cost Release” campaign in Santa Clara County made people aware that they were entitled under California statutes to alternatives to money bond —countering a “common perception among people booked in the jail that posting money bond was the way to get released before trial,” the study said.

Such relatively low-cost interventions that focused on upholding the rights of people at the pretrial stage helped “the people who are affected by the justice system the most,” the study said.

electronic alert

Durham County’s electronic reminder system alerts individuals of scheduled court dates

In Durham County, a significant proportion of individuals held in jail before trail were detained because they failed to appear for a designated court date. But county officials realized that most people aren’t aware that a “Failure to Appear” (FTA) finding triggers an automatic issuance of a warrant for arrest under North Carolina law.

In order to reduce the number of people held on FTAs—and the associated costs to county authorities—officials developed a simple automatic online reminder system which reduced the paperwork and time that staff were otherwise spending trying to reach people on the phone, the study said.

Since the program was launched in June 2017, the number of FTAs dropped from 10 percent of the people who signed up for the system in September 2017 to 4 percent in May, 2018, the county reported. At the same time the share of people who didn’t sign up for the reminder system and failed to appear remained constant, at around 7 percent, from September 2017 to May 2018.

Similarly, the jail system in Santa Clara County, which includes the city of San Jose, has an average daily population of 3,400 in 2017. But many of those held pretrial were distracted by advertisements for bail bonds business at the jail, unaware that that they were entitled to a bonded release under California law.

So the county mounted what it called a “No Cost Release Campaign” that emphasized alternatives available for those detainees who qualified: own recognizance (OR) which allowed for a detainee’s release on the condition that he or she will return to court of his or her own volition; and supervised own recognizance release program (SORP), which had the added condition of being supervised by a pretrial officer.

just ask

Santa Clara County’s “No Cost Release” campaign makes individuals aware of alternatives to money bonds.

The campaign was strengthened by county Pretrial Services officers who came to the jail every day to interview interested people and assess their eligibility for OR/SORP release. The program aimed to make sure clients were aware of their release options before posting bail or being housed. The case study was conducted only a few months after the campaign was introduced in December, 2017—so only preliminary conclusions were available; but researchers said the effort, which included seeking out former pretrial clients to discuss their experiences on a promotional video, was promising.

Intimate Partner Violence

Another Urban Institute case study of best practices found promise in a pretrial strategy for handling intimate partner violence cases in Buncombe County, NC.

“Criminal justice system actors tasked with responding to violence between intimate partners are grappling with how to effectively secure victims’ safety while ensuring that those who use violence are held accountable and put on a path to change their abusive behavior,” said the authors of that case study.

 Prompted by a spike in fatalities caused by abusers released into the community on their own recognizance, Buncombe County was one of the first U.S. counties to develop and pilot a specialized pretrial protocol designed to supervise pretrial-release individuals charged with being be the instigators of intimate partner violence (IPV).

The county’s pretrial services office established a “multi-pronged mechanism” to manage the risk of violence when an aggressor is released into community.

Under the mechanism, every aggressor released into the community through pretrial services was required to call in once a week, and contact escalated in frequency based on a risk assessment of potential threat. At the same time, pretrial services shared the conditions of an aggressor’s terms of release with victims, helping to reduce “victim and family anxiety around the pretrial release of potentially high-risk partners.”

One case manager reported that the tool helped her talk to victims “in a way that she [the victim] feels free to express herself of how fearful she is,” adding “it makes me acutely aware that we’re in a position to make things fair on both sides.”

 Early analysis of the program showed that it resulted in a drop in the use of detention as a single intervention for IPV aggressors; the number of IPV cases assigned to pretrial supervision in the community also increased 6 percent.

The Safety and Justice Challenge Innovation Fund was designed, according to its website, “to create space for 20 jurisdictions to “test bold and innovative ideas on how to safely reduce the jail population while maintaining or enhancing public safety.”

 Other case studies in the series looked at:

  • “Front-end diversion” programs instituted by Deschutes County, Oregon, to help people suspected of possession of a controlled substance avoid prison time; and by Summit County, Ohio, to issue summonses in lieu of a custodial arrest for people facing nonviolent, low-level felony charges.
  • Data integration programs developed by Pennsylvania’s Allegheny County, Pennsylvania;, and the City and County of San Francisco, California, aimed at bringing together information from both criminal justice and non-justice sources systems to help courts, police departments, sheriff’s departments, prosecutors and defenders coordinate their decision-making;
  • “Interface” programs using the so-called “Sequential Intercept Model” in Colorado, South Dakota and Washington State to guide justice authorities in meeting the behavioral health needs of justice-involved individuals.

Detailed descriptions of the Urban Institute case studies released so far can be accessed here.

See also: The Challenges of Prison Alternatives for Women in Rural Communities

Stephen Handelman is editor of The Crime Report. Readers’ comments are welcome.


The ‘Legal Culture’ That Blocks Rural Jail Reform

A Circuit Court judge’s reluctance to adapt reforms to money bail and other court procedures stands in the way of reducing jail overcrowding in rural Kentucky, according to a study commissioned by two county governments. 

The nation’s rural jails face a systemic problem of overcrowding that is usually blamed on lags in jail construction or outdated facilities, but a recent report in Kentucky has placed the responsibility squarely on a single circuit-level judge.

A comprehensive study of the criminal justice system in Boyle and Mercer counties—located in the middle of the state—singled out the “discriminatory” bond practices and lethargic case-processing times at Kentucky’s 50th Circuit Court as the source of the problems at the Boyle County Detention Center.

The jail is stuffed with pretrial felony defendants who can’t afford their bonds and must wait months to resolve their cases, according to the blunt assessments of consultant Dr. Allen Beck in chapter two of the 106-page “Jail and Justice System Assessment.”

The report, which is still in draft form, was commissioned by Boyle and Mercer counties to help them address the jail’s constant overcrowding and ballooning budget. Consultants hired by Brandstetter Carroll have gone over tens of thousands of documents and jail records and conducted dozens of interviews with people involved in the local criminal justice system at every stage — except, notably, not with any judges.

“Unfortunately, the Circuit Court Judge (Darren Peckler) refused to participate in the study and prohibited the District Court Judge (Jeff Dotson) from participating,” the report states.

Darren Peckler

Chief Circuit Court Judge, Kentucky, Darren Peckler.Photo courtesy The Advocate Messenger

Beck’s assessment in chapter two points a finger squarely at many practices of 50th Circuit Court Judge Peckler. It blames Peckler’s practices of requiring cash bonds; setting limits on the number of pleas he will hear; revoking bonds when defendants are indicted; and not offering bonds to participants in a new “rocket docket” program, among other things.

“The analysis in this chapter disclosed that case processing issues in the circuit court has been a major contributor to jail overcrowding. Resolution of some issues may be easier than others,” the chapter’s conclusion states.

“… Of all of the recommendations in the entire project report, those in this chapter have the greatest potential to substantially reduce the jail population.”

Non-Financial Bonds

The use of financial bonds — requiring defendants to pay money to leave jail — is a major contributor to the jail’s population, the report finds. Data in the report from Kentucky’s Administrative Office of the Courts shows that defendants in Boyle and Mercer counties are able to leave jail without paying money at far lower rates than in comparison counties selected for the study.

Judges in Clark County, on the other side of Lexington, let defendants out on non-financial bonds 18 percent of the time over the last eight years, according to the data. In Woodford County to the north, it was 25 percent; in Harlan County in eastern Kentucky, it was 55 percent. In Boyle County, it was four percent; in Mercer, three percent.

The data show non-financial bonds have been all but unused in the 50th Circuit Court, even though “research shows that financial/secured bonds are no more effective than non-financial bonds,” the report states.

“It is difficult to avoid coming to the conclusion that the circuit court judge does not believe in non-financial bonds,” the report reads.

The report does note a “major decline in the jail population in the last several months,” which it attributes to the public defender’s office and defense attorneys “advocating for the pretrial release and use of non-financial bonds during circuit court arraignment.”

“It is not uncommon for changes in court-related practices to begin changing during criminal justice system studies,” the report states.

“The increased attention on case processing can act as a stimulus for members of the system to reconsider habits and expectations that have become ingrained in how they process cases and interact with the court.”

Despite the recent improvement, the report says there is still a “local legal culture in which members reinforce their belief (in financial bonds) through interaction with each other.”

“There is a glaring issue that must be addressed. That issue is the belief that the amount of money bail controls behavior. This belief is not only reflected in the actions of the circuit court judge, but in other members of the criminal justice system,” the report reads.

“… It is a strong dynamic that sometimes is only overcome by replacing the players. Rather than advocating their replacement, the consultant recommends bringing in one or more informed persons from the Pretrial Justice Institute to make a presentation or hold a workshop for criminal justice officials on this issue.”

According to the Pretrial Justice Institute, “unsecured (non-financial) bonds are as effective at achieving public safety as are secured (financial) bonds.”

Financial bonds also do not improve appearance rates in court, while non-financial bonds “free up more jail beds,” according to a study by the institute.

The Brandstetter Carroll report also notes that financial bonds can be “discriminatory” because “economically able defendants are able to post bond, while the less affluent stay in jail.”

“Many court cases and a volume of research attest to the discriminatory nature of blanket application of secured bonds,” the report states.

Requiring cash from poor people to get out of jail can cause defendants to plead guilty to crimes they didn’t commit in order to speed things up, the report states.

According to the Pretrial Justice Institute, “unsecured (non-financial) bonds are as effective at achieving public safety as are secured (financial) bonds.” Financial bonds also do not improve appearance rates in court, while non-financial bonds “free up more jail beds,” according to a study by the institute.

The Brandstetter Carroll report also notes that financial bonds can be “discriminatory” because “economically able defendants are able to post bond, while the less affluent stay in jail.”

“Many court cases and a volume of research attest to the discriminatory nature of blanket application of secured bonds,” the report states.

Requiring cash from poor people to get out of jail can cause defendants to plead guilty to crimes they didn’t commit in order to speed things up, the report states.

Rocket Docket and Indictment

A January order signed by Peckler has limited the effectiveness of a new “rocket docket” program in Boyle County, the report finds.

The grant-funded rocket docket program is designed to expedite low-level drug and drug-related offenses and reduce “unnecessary incarceration time for low-level drug and drug-related offenders,” according to the report.

But Peckler’s order requires that if any defendant opted to participate in the rocket docket program, the county “shall issue a bench warrant with no bond until said case has been reviewed by the court.”

This order “seems to be counterintuitive” since defendants could be expected to be more compliant with bond conditions if they have the chance to resolve their cases more quickly, the report states.

“On the other hand, this order is in keeping with the judge’s practice of revoking the release of all felony defendants after being indicted by the grand jury, regardless of their success in compliance with release conditions.”

As a result of Peckler’s order, the rocket docket program “has been very minimally utilized,” according to the report. “Interviews with attorneys in Boyle County found that they discourage their clients from pursuing the rocket docket option.”

rural jail study

Jail consultant Dr. Allen Beck presents draft findings from a “Jail and Justice System Assessment” to officials from Boyle and Mercer counties. Photo by Ben Kleppinger/The Advocate-Messenger.

The public defender’s office estimates that “about 80 percent of felony cases in Boyle County could potentially be rocket docket cases since they fall into the non-violent, non-sexual Class D category,” according to the report.

Peckler’s practice of setting new bonds for defendants after indictment is another target of the report.

In the 50th Circuit Court, after a grand jury issues an indictment, “the circuit court judge rejects most or all previously set bonds by the district court judge” and sets new bonds, typically of $5,000 cash for a Class D felony and $10,000 cash for a Class C felony, according to the report. “… The judge is, in essence, acting as a magistrate to set bonds anew.

In doing so, he is disregarding the evidence of success of defendants who appeared in court and remained crime-free while out on pretrial release under bond set by the district judge. As a result, more defendants cannot afford the new bond.”

The report continues, noting again the advocacy by defense attorneys in recent months for more non-financial bonds.

“The attorneys have addressed Kentucky Court Rules that emphasize pretrial release and the use of non-cash bonds,” the report reads. “As a result, the circuit court judge has altered his pattern of setting bonds.”

Case Processing

The report also documents numerous ways in which circuit court policies slow down the processing of criminal cases, in many cases causing defendants to wait in jail for a month or more before an appearance.

There is only one plea day set every month and “the judge sets a cap of 25 cases in the morning and 25 in the afternoon,” the report states.

“If the number of defendants exceeds that number, the defendant has to wait another month. In some instances, heavy caseloads have resulted in waiting for two months.”

After a defendant is charged, they must be arraigned. In Boyle and Mercer, there’s one arraignment date every month. But someone arrested shortly before that arraignment date isn’t allowed to be arraigned right away; they have to wait for the next month’s arraignment.

There were people arrested after May 31 this year who were not on the June docket and had to wait until July 3 for arraignment — “a delay of 32 days,” the report explains.

The circuit court further slows down the process by not transporting incarcerated defendants for every status hearing in their case, according to the report:

“If defendants were present for all court hearings, negotiations could occur continually in the courtroom as the docket progressed. That would result in many cases being resolved at that time.

However, under current court practice, jail inmates are not brought to court for status hearings. As a result, nothing other than continuances occur. To accommodate all individuals on the docket being present for all hearings, court sessions would need to be held more frequently and the judge would have to be willing to work past five o’clock on some occasions, which is a common practice in other jurisdictions.”

The report makes seven recommendations for changes concerning criminal case processing.

They include:

  • the Pretrial Justice Institute should be brought in to address use of non-financial bonds;
  • the no-bond requirement for the rocket docket program should be ended;
  • “The revocation of bonds set by the district court after grand jury indictment should be substantially altered, if not dropped as a practice;”
  • the circuit court should add a new court date each month to allow for faster processing;
  • the circuit court should allow defendants to enter pleas at any time, instead of only on specific court dates — or at least add additional plea dates;
  • the circuit court should no longer limit the number of pleas it will hear to a specific quota; and
  • the circuit court should transport all defendants who are in jail for all court hearings so in-court negotiations can happen more frequently.

The report notes similar problems with non-financial bonds and case-processing speeds at the district court level, but finds that misdemeanor defendants make up a smaller portion of the jail population and have their cases resolved more quickly.

“Detention of persons charged with misdemeanor offenses has a much smaller impact on the jail population.”

The Advocate-Messenger offered Judge Peckler a chance to respond to the findings in the report.

Ben Kleppinger, a staff writer for The Advocate-Messenger, is a 2018 John Jay Rural Justice Reporting Fellow. This slightly edited and condensed version of the original published article is the second in a series of reports on the Kentucky jail system prepared for his Fellowship project. The first report is available here. Readers’ comments are welcome.


California Scraps Cash Bail to ‘Treat Rich and Poor Fairly’

California will become the first state to end money bail under a new law that will take effect in October, 2019. Under the measure, courts will use algorithms to decide who needs to be kept in custody ahead of trial—but critics, including the ACLU, say the new system may perpetuate discrimination. 

California will become the first state to abolish money bail for suspects awaiting trial, under a sweeping reform bill signed by Gov. Jerry Brown , reports NPR.

The measure, due to take effect in October 2019, means defendants will no longer be required to put up money or borrow it from a bail bond agent in order to secure release ahead of their trials. Instead, courts will use algorithms to decide who to keep in custody and who to release pending disposition of the case.

Gov. Brown, who has been pressing for bail reform for nearly four decades, said the California Money Bail Reform Act will ensure “that rich and poor alike are treated fairly.”

But many critics, including the American Civil Liberties Union (ACLU), said they were disappointed that the measure didn’t go far enough—and could further worsen racial bias and economic inequities in the courts.

“They took our rallying cry of ending money bail and used it against us to further threaten and criminalize and jail our loved ones,” Raj Jayadev, co-founder of advocacy organization Silicon Valley De-Bug, and a former supporter of the bill,  told the Sacramento Bee.

Under the Act, in most nonviolent misdemeanor cases, defendants would be released within 12 hours. Other defendants will be scored on how likely they are to show up for their court date, the seriousness of the crime, and the likelihood of recidivism.

The ACLU pulled its support, arguing that last-minute changes give judges too much discretion.

On the other side of the argument, the American Bail Coalition, which represents bail providers,  likely will challenge the law in court

Bail reform has gotten increased traction across the U.S.

Washington, D.C., already has a cashless bail system. Some states, including New Jersey, have passed laws that reduce their reliance on money bail. Other states are considering making similar changes.

At a meeting last spring, policies of prosecutors elected on progressive platforms around the U.S. were praised for showing promise to reduce the nation’s incarceration totals,

Jeremy Travis of the Laura and John Arnold Foundation called “remarkable” and “stunning” a set of new policies announced by newly installed Philadelphia District Attorney Larry Krasner.

Krasner told his staff  in March to offer shorter prison sentences in plea deals, decline to file marijuana possession and many prostitution charges, and explain case-by-case why taxpayers should pay thousands of dollars per year to incarcerate people.

Travis suggested that Krasner’s practices reflected some of the findings of a Misdemeanor Justice Project at John Jay College of Criminal Justice, which he formerly headed. The project “seeks to understand the criminal justice response to lower-level offenses, from arrest to disposition.”

See also Cherise Fanno Burdeen in TCR, “Is a Common Sense Approrach to Bail Reform Finally gaining Traction?

At the federal level however, bail reform still appears to be stalled.

Senator Bernie Sanders (I-VT) introduced legislation earlier this year that would end money bail on the federal level and incentivize states to do the same.The No Money Bail Act would prohibit the use of cash bail in federal criminal cases, provide grants to states that implement alternate pretrial practices, and withhold grant funding from states that continue to utilize cash bail.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” reads Sanders’s summary of the bill. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell.”

“And this disproportionately affects minorities—fifty percent of all pretrial detainees are Black or Latinx.”

The No Money Bail Act is not the first push within Congress to tackle pretrial practices. Previous efforts, such as the measures introduced by Representative Ted Lieu (D-CA) in 2016 and 2017 and the Pretrial Integrity and Safety Act sponsored by Senators Kamala Harris (D-CA) and Rand Paul (R-KY) last year, have stalled, making it unlikely that Sanders’s bill will receive the necessary traction to become law.

Even if Congress fails to act, bail reform is slowly gaining ground in cities and states around the U.S., partly through the work of advocates like Robin Steinberg.

Last November, Steinberg launched The Bail Project, a five-year, $52 million plan to bail out 160,000 people in more than 40 locations, starting with New York City.


Houston Judges Move to Halt Bail Reform

Over a dozen Houston judges are appealing a federal judicial order forcing the prompt release of most misdemeanor defendants within 24 hours of arrest. The injunction went into effect last June.

Misdemeanor court judges in Houston, Texas, appealed to a Fifth Circuit panel on Tuesday to scrap judiciallyimposed bail reform, which they claim has caused a spike in people failing to appear in court, the Courthouse News Service reports.

In a motion to stay, fourteen Harris County criminal court judges allege that U.S. District Judge Lee Rosenthal compromised public safety when she ordered the county to release poor misdemeanor defendants from jail. Since Judge Rosenthal’s preliminary injunction took effect in June 2017, the county’s failure-to-appear rates have “skyrocketed,” the judges say.

Harris County is Texas’s most populous county, with more than 4.5 million residents. It is also home to the third largest county jail in the country.

In the spring of 2017, Rosenthal found that Harris County’s bail system violated the due process and equal protection rights of indigent defendants by favoring those who can afford to pay to get out of jail. She issued an injunction that she then narrowed in July after a Fifth Circuit panel ruled that even though the Harris County bail system is unconstitutional, her order amounted to an impermissible automatic right to pretrial release for misdemeanor defendants.

Bail reform has been gaining traction nationwide in recent years. Varying degrees of reform have been implemented in New Jersey, Alaska, Maryland, and New Orleans, and since January 2016, federal class action lawsuits have been filed in Dallas, Galveston, and Lafayette, Louisiana, challenging county bail systems.

See also: Wrongful Misdemeanor Convictions: Who’s Counting?

But the case in Houston demonstrates that strong opposition remains to the elimination of cash bail.

Alec Karakatsanis, the founder of the Washington, D.C. nonprofit firm Civil Rights Corps and the lead attorney challenging the bail system in Harris County, rejected claims that Rosenthal’s initial injunction endangered public safety. He said that the county has provided no evidence that people released on cash bond are more likely to show up for court than those released pretrial on unsecured personal bonds.

In fact, he said, pretrial detention increases failure-to-appear rates and the likelihood a defendant will commit crimes in the future.

The judges in the case did not say when they would rule on the emergency motion to stay.


Is a ‘Common Sense’ Approach to Bail Reform Finally Gaining Traction?

A recent national poll of 1,400 voters shows nearly one in five respondents want to scrap the current money bail system. That should send a message to policymakers that voters are willing to accept alternatives that limit arrests and incarceration for nonviolent offenses, writes the CEO of the Pretrial Justice Institute.

Only three percent of federal and state criminal justice cases result in a trial. The rest—97 percent—are settled pretrial, often by plea bargain.

Three percent is a shocking figure for a nation that considers trial by a jury of peers a fundamental right. Our rhetoric clearly is not aligned with reality.

A new national poll on pretrial justice, independently analyzed by the Pretrial Justice Institute and the Charles Koch Institute, shows Americans want to close the gap between how we talk about justice and what we deliver. The survey of 1,400 registered voters, conducted in May 2018, reveals that voters across a broad demographic and geographic spectrum believe the system needs to change.

Only six percent of respondents were satisfied with the status quo. Nearly one in five would scrap the current system and start over.

The U.S. criminal justice system is a maze: Once someone’s in, it’s hard to get out—and pretrial is the front door. Our analysis of the data reveals that while there is ample room for the public to learn more about pretrial processes and procedures, voters intuitively recognize a need to reduce unnecessary arrests, restrict the use of jail pretrial, replace money bond, and raise equity.

Moreover, as they learn about the common-sense solutions available, their support grows.

One of the biggest takeaways from the poll is that Americans want to reduce the number of people entering the system by adding alternatives to arrests and limiting the use of jail except as needed for public safety.

Seventy-three percent of respondents—87 percent among black voters, 75 percent among Latinx voters, and 71 percent among whites—favor reducing the number of arrests for low-level, nonviolent offenses. Seventy-six percent indicate that citations informing people of their obligation to appear in court would be a better response to low-level, nonviolent offenses than arrest.

Similarly, while 83 percent of survey respondents would allow judges to detain a person charged with a serious violent crime when necessary for public safety, respondents want limits on the system’s ability to jail people whose alleged guilt has not been proved—especially those charged with minor offenses.

Only 36 percent would allow courts to hold arrested people regardless of the severity of their charges. Voters by a two-to-one ratio think prosecutors should bear the burden of showing that a person should be in jail before trial.

One reason the system currently defaults to jail upon arrest is the use of money bond, which requires arrested people to pay money to be released before trial. Given this obvious bias toward those with money, it should not be surprising that 79 percent of respondents think the wealthy enjoy substantially better outcomes from the criminal justice system than do poor and working-class Americans.

Seventy-two percent of respondents think public safety should be the primary consideration, instead. The same percentage, 72 percent, would limit how many days people not charged with serious violent crimes can remain in jail before trial if they cannot afford money bond.

Perhaps the biggest surprise from our analysis is the support we found for services to help arrested people succeed in the community. More than three out of four voters would provide support services for people awaiting trial in the community who have substance-use difficulties.

Nearly nine out of 10 would provide support to people awaiting trial who are victims of domestic violence or who have mental health needs.

More than 60 percent of the people in U.S. jails and prisons are black or Latinx. Studies have found that black Americans face higher bail amounts and are less likely to be released on non-monetary conditions than similarly situated white individuals.

Other research indicates that being black can increase an arrested person’s odds of being held in jail by 25 percent.

Fifty-six percent of those polled believe whites have better outcomes from the system, with 78 percent of black voters, 74 percent of Latinx, and 50 percent of white voters in agreement. Asked which was fairer to people of all races, money bail or community supports—such as court reminders and referrals to services, as well as supervision—nearly half of all respondents, or 48 percent, favored supports; just 29 percent felt money bail was fairer.

But there is still a long way to go to educate the public on this issue.

Despite the media’s increased coverage of pretrial and money bail in recent years, 51 percent of respondents said they know only a little or nothing at all about money bail. The silver lining was that, over the course of the poll, as people learned more about the alternatives to money bail, their support for moving away from financial conditions of release increased.

Cherise Fanno-Burdeen

This survey holds important lessons for stakeholders and lawmakers. The public wants change. In contrast to current practice, Americans would like pretrial systems to default toward release before trial except when necessary for public safety, and they favor community-based supports for those who are unlikely get arrested on new charges but may need help getting to court.

Jurisdictions and states contemplating change should be fortified by the knowledge that people are ready to support common-sense change.

Cherise Fanno Burdeen is the chief executive officer of the Pretrial Justice Institute. She welcomes comments by readers.


As Federal Bail Reform Stalls, States and Cities Act

Senator Bernie Sanders (I-VT) has introduced legislation that would end money bail on the federal level and incentivize states to do the same. Federal bail reform seems likely to stall; meanwhile, Robin Steinberg of the Bronx Defenders has set up a national bail project to help poor clients win pretrial release.

Senator Bernie Sanders (I-VT) has introduced legislation that would end money bail on the federal level and incentivize states to do the same.

The No Money Bail Act would prohibit the use of cash bail in federal criminal cases, provide grants to states that implement alternate pretrial practices, and withhold grant funding from states that continue to utilize cash bail.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” reads Sanders’s summary of the bill. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell.”

“And this disproportionately affects minorities—fifty percent of all pretrial detainees are Black or Latinx.”

The No Money Bail Act is not the first push within Congress to tackle pretrial practices. Previous efforts, such as the measures introduced by Representative Ted Lieu (D-CA) in 2016 and 2017 and the Pretrial Integrity and Safety Act sponsored by Senators Kamala Harris (D-CA) and Rand Paul (R-KY) last year, have stalled, making it unlikely that Sanders’s bill will receive the necessary traction to become law.

Even if Congress fails to act, bail reform is slowly gaining ground in cities and states around the U.S., partly through the work of advocates like Robin Steinberg.

Last November, Steinberg launched The Bail Project, a five-year, $52 million plan to bail out 160,000 people in more than 40 locations, starting with New York City.

Steinberg got the idea to start a bail fund while working as a public defender, she told the Christian Science Monitor. As an attorney with the Bronx Defenders, she saw every day how cash bail hampered clients who couldn’t afford to pay to get out of detention.

Bail is meant to serve as an insurance policy for courts: defendants either await disposition of their cases behind bars, ensuring that they will show up, or post bail and (presumably) return to retrieve the money they posted.

Reformers claim that the practice is discriminatory, keeping poor defendants who are often charged with low-level crimes behind bars while their well-heeled counterparts go free. In 2007, Steinberg launched the Bronx Freedom Fund, a revolving nonprofit fund for poor people being held in jail before trial.

By bailing clients out for $768 on average, Steinberg enabled them to go home to their jobs and families and fight their cases free. Once clients’ cases have been heard, the bond money returns to the fund, with each dollar circulating more than twice a year.

Steinberg found that freedom made all the difference: more than half of the cases resulted in all charges being dismissed, while others ended in noncustodial sentences. Only two percent of clients were sentenced to jail for the original charges.

Understanding the scale of pretrial incarceration – 450,000 people await trial in local jails on an average night, most of whom are too poor to pay bail – Steinberg knew her work couldn’t stop with the Bronx. She created the Bail Project to bring the initiative to a national scale.

Since its founding, the Bail Project has set up funds in Tulsa, Ok., St. Louis, Detroit, and Louisville, Ky., hiring local “bail disrupters” to track and assist low-income defendants.

The organization was chosen this year as a TED Audacious Project, which pools money from philanthropists for “big bets” on ideas with broad social effect. The Bail Project will receive $24 million over five years, while Steinberg continues to raise money to expand its reach, Anna Verghese, who runs the Audacious Project told the Monitor.

Revolving bail funds such as the Bail Project have decarcerated hundreds of thousands of individuals, but they do not address the underlying issue: federal, state, and county policies putting a price on a person’s freedom while he or she remains innocent in the eyes of the law.

Among major jurisdictions that have made changes, New Jersey’s Criminal Justice Reform Act largely eliminated cash bail within the state starting in January 2017; Washington, D.C., has long relied upon risk assessment tools to determine who is detained pretrial; District attorneys in Brooklyn and Manhattan in January ordered prosecutors not to request bail in most misdemeanor cases; and Philadelphia District Attorney Larry Krasner put an end to cash bail requirements for low-level offenses in February.


Incarceration Decrease? Drop in Prison Numbers Called ‘Anemic’

Although the US prison population has begun to decline, researcher Malcolm C. Young says the rate of decrease is so low that the goal of prison reformers to cut prison populations by half would unlikely be reached until 2068.

Although the US prison population has declined over six years, after increasing for nearly four decades, a new analysis by researcher Malcolm C. Young, published by the Center for Community Alternatives, concludes that the nation is not reducing prison populations at a pace that would end mass incarceration in the foreseeable future.

A report issued in January by the Bureau of Justice Statistics of data through 2016 found that prison populations decreased in 33 states that year—more states than had experienced decreases in any recent year. The average decrease was three percent.

In 42 states, prison populations were lower than they had been recently. Just eight states increased their prison populations to record high numbers.

The downturn it documented, while perhaps marking the beginning of an end to three-and-a-half decades of increases, “is anemic to the point of listlessness,” says Young, a longtime advocate of cutting prison populations.

If the numbers of inmates continue to decrease only at the rate they did between 2014 and2016, there will still be more than a million people incarcerated in prison in 2042. The nation wouldn’t reach the goal of groups like to reduce prison populations to half of what they are today for another 50 years, until 2068.

Moreover, the current rate of decrease may not hold, according to Young.

The prospects for a more rapid de-incarceration are poor unless and until many more states use strategies that have been effective in the handful of states that are significantly reducing prison numbers, Young believes.

Only 13 states have significantly reduced their prison populations below the levels they were at the end of 2000. Seven of those 13 states accounted for most of the national inmate population drop.

California, Connecticut, Illinois, Maryland, Michigan, New Jersey, and New York reduced their collective prison populations by 73,328 between 2000 and 2016, accounting for about two-thirds of the total by which all states reduced prison numbers.

Another 14 states have at times demonstrated a capacity for reducing prison populations.

The experiences in both sets of states show that reductions at rates of three to five percent annually, and even higher, are well within reach of governments motivated to act, Young writes.

The federal prison system, the nation’s largest, contributed to the national decrease. Its population at the end of 2016 was 13 percent under its highest point, in 2011.

Young found that prospects that most of the 13 states responsible for much of the national decrease will continue to reduce their prison populations are good.

For example, Massachusetts has the second-lowest incarceration rate in the nation (after Maine), and the Vera Institute of Justice predicts further decreases. New Jersey will likely continue to reduce its prison population as a result of pretrial reforms signed by Gov. Chris Christie that took effect last year.

In New York State, further decreases are likely if officials can encourage fewer prison commitments from areas outside of New York City.

On the other hand, California, which decreased its prison population by 40,926 in six years to comply with a US Supreme Court ruling, increased its prison population in 2016 by 0.9 percent. California corrections officials predict an annual 0.8 percent increase in coming years.

In Illinois, Gov. Bruce Rauner cut the prison population, incurring little opposition from the same Republicans who savaged his Democratic predecessor’s more modest efforts. Were he to lose his bid for reelection, it is not a given that a Democratic administration would carry his plan forward.

Since 2010, Texas decreased its prison population by 6,749 (4.1 percent). Prospects that the trend will continue are iffy because state legislators have been considering new sentencing enhancements.

Young found that decreases in the 14 states that have demonstrated a capacity to reduce prison populations have been “episodic.” Recently enacted reforms have encountered opposition.

In Louisiana, advocates have been concerned that legislators will roll back recently enacted reforms designed to reduce incarceration. In Utah, reforms that relied on treatment and housing programs are at risk because of a lack of funding for alternative programs. In Florida, legislative reforms have not led to the reductions in prison populations for which advocates hoped.

In the federal system, prospects for continued decreases are fading. A bipartisan reform bill that would have reduced some federal sentences seems stalled, while prosecutorial and sentencing policies announced by Attorney General Jeff Sessions will soon add to the prison population.

Young’s report identifies a third group of 23 states that have yet to demonstrate a capacity to reduce prison populations. At the end of 2016, their combined prison populations were 86,866, or 31 percent higher than at the end of 2000.

The report recognizes that new developments might bring significant reductions in prison numbers.

The election of reform prosecutors like Larry Krasner in Philadelphia and Kimberly Foxx in Cook County, Illinois, signal a voter rejection of “tough on crime” and “lock-em-up” policies that have driven incarceration.

Another development lies in an emerging appreciation of the relationship between local jail incarceration and prison numbers by the MacArthur Foundation, which is funding local justice reform through its Safety and Justice Challenge. Were bail reform to spread, there would likely be a significant reduction in prison numbers as well as in jail counts.

Similarly, reforms in policing should reduce the use of jails and, indirectly, the number of people who are sentenced to prison.

The report concludes that if California and the federal system increase their prison populations, it will be difficult to sustain the current rate at which prison populations are decreasing.

Young calls for reexamining the effectiveness of prison-reduction strategies.

“[Hopes to] to end mass incarceration can’t be grounded in a fiction that an annual one percent reduction in prisoners will get us anywhere, or that limited successes in a few jurisdictions will end mass incarceration in the country as whole.”

His report contends that national, state and local officials should turn for guidance to states that have achieved significant, lasting reductions in prison incarceration and steer clear of approaches that have failed to produce results.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. He welcomes comments from readers.


Richmond Pushes Away from Cash Bail, Joining Trend

Michael N. Herring, the Virginia city’s top prosecutor, said his staffers will now recommend release without bail for most defendants. He said the cash bail system “strikes me as unfair” and does not ensure that accused criminals will appear in court.

Richmond, Va., has joined a growing number of American cities and states that are abandoning cash bail for many criminal defendants. The city’s Times-Dispatch reports that Richmond prosecutors will no longer seek cash bail bonds for many of those awaiting trial. In theory, the cash investment by defendants ensure their good behavior and their presence at trial. But Richmond Commonwealth’s Attorney Michael N. Herring said, “It strikes me as unfair, and it doesn’t ensure anything.” Prosecutors in his office are now instructed to make a good-faith assessment of a defendant’s risk to the community. “If they don’t believe the person poses an unacceptable risk of harm, then they are to recommend [to the judge] release with appropriate pretrial conditions,” he said.

If a prosecutor believes a defendant poses an unacceptable risk, then they are simply to recommend that the person be confined to jail, Herring said. Bill Farrar of the ACLU of Virginia said, “There’s plenty of anecdotal research to show that the cash bail system is slanted against people of color and people who don’t have the ability to pay.” Many states and cities have instituted bail reforms, although some are considering restoring cash bail in some instances after criticism that the reforms are too lenient.