SPOTLIGHT CLE: WHO STAYS AND WHO GOES HOME:

HOW DOES KENTUCKY'S SYSTEM FOR PRETRIAL RELEASE OPERATE

AND IS IT WORKING FOR US

Sponsor: Criminal Law Section CLE Credit: 1.0

Friday, June 15, 2018 10:10 a.m. - 11:10 a.m. Bluegrass Ballroom II Lexington, Kentucky

A NOTE CONCERNING THE PROGRAM MATERIALS

The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority.

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TABLE OF CONTENTS The Presenters ................................................................................................................. i The Next Step in Pretrial Release is Here: The Administrative Release Program .............................................................................. 1 Five Bail Cases the Kentucky Criminal Defense Attorney Absolutely Must Know (and Why) .................................................................................... 3 Pretrial Detention and Policy Recommendations ........................................................... 11 Position Paper on Financial Conditions of Release ....................................................... 19

THE PRESENTERS

Tara Boh Blair Administrative Office of the Courts

1001 Vandalay Drive Frankfort, Kentucky 40601

TARA BOH BLAIR is the Executive Officer for the Kentucky Court of Justice, Administrative Office of the Courts, Department of Pretrial Services. She authored the policies and procedures for her agency and developed the training module for new and existing staff as well as inter-disciplinary training with the Department of Public Advocacy and the Circuit and District Judicial Colleges. She also led the design and implementation of the pretrial case management system, Pretrial Release Information Management (PRIM), designed the pretrial monthly reports, program quality assurance protocols and developed performance and outcome measures. Ms. Blair holds a BA in Sociology and a BS in Police Administration from Eastern Kentucky University. In addition to her duties with the Commonwealth of Kentucky, Ms. Blair has worked part time since 2008 as a Criminal Justice consultant providing program assessments, training and technical assistance. She has been a member of the National Association of Pretrial Services Agencies (NAPSA) since 1996 and a member of the National Institute of Corrections (NIC) Pretrial Network Group. She was awarded the NAPSA Member of the Year award in 2009 and the Kentucky Department of Public Advocacy Public Advocate award in 2012. Ms. Blair has presented, co-presented and served as a facilitator at numerous state and national conferences. Mark E. Bolton Louisville Metro Department of Corrections 400 South Sixth Street Louisville, Kentucky 40203 MARK E. BOLTON is the Director of the Louisville Metro Department of Corrections. He has been employed in the corrections field for 39 years. Mr. Bolton received his B.S. from Arizona State University and is a graduate of the United States Department of Justice Executive Management Program. He served as a probation/parole officer, warden/institution superintendent, central office administrator and Operations Director of Community Corrections while in Arizona. Mr. Bolton spent 14 years in the Pacific Northwest where he served as the Deputy Director of the jail systems in both Olympia and Seattle, Washington. He also spent six months in Bagad Iraq under a Department of Justice contract with the Iraqi National Prison System. Mr. Bolton is on faculty at the University of Louisville, College of Justice Administration and was featured on PBS Front Line in 2014 where his position on criminal justice reform was prominently displayed.

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Judge David P. Bowles Jefferson District Court

600 West Jefferson Street Louisville, Kentucky 40202

JUDGE DAVID P. BOWLES was first elected to Jefferson District Court in 2008. Prior to taking the bench he was a partner with Landrum & Shouse, LLP in Louisville. Judge Bowles retired at the rank of Lieutenant in 2001 from the Jefferson County Police Department after having served previously as a patrol officer, staff services officer, narcotics detective, and patrol sergeant. He also served as a field training officer and crisis negotiator. Judge Bowles is a member of the Louisville and Kentucky Bar Associations and the Fraternal Order of Police Lodge #614. He serves as the district court member on the Kentucky Judicial Conduct Commission; chair of the Louisville Metro Criminal Justice Commission; and, is a member of the Alzheimer's Association of Greater Kentucky Advisory Board. Judge Bowles received his B.S., magna cum laude, from the University of Louisville and his J.D., cum laude, from the Louis D. Brandeis School of Law at the University of Louisville. Damon L. Preston, Moderator Department of Public Advocacy 5 Mill Creek Drive Frankfort, Kentucky 40601 DAMON L. PRESTON was appointed Kentucky's eighth Public Advocate by Governor Matt Bevin on September 16, 2017. After graduating from Transylvania University and Harvard Law School, he began his legal career in the Criminal Appeals Bureau of the Legal Aid Society in New York City. He returned to Kentucky in 1997 and has been with DPA ever since. First a staff attorney in the Richmond trial office, Mr. Preston led the Paducah and then Cynthiana offices as directing attorney. Starting in 2004, he managed DPA's Appeals Branch before joining DPA's Leadership Team as Trial Division Director in 2007. Early in 2011 he was appointed Deputy Public Advocate and remained in that position until succeeding Ed Monahan in September. In addition to his work with DPA, Mr. Preston is a member of Governor Bevin's Criminal Justice Policy Assessment Council, serves on the board of the Kentucky Association of Criminal Defense Lawyers and is the past chair of the Criminal Law Section of the Kentucky Bar Association.

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Secretary John C. Tilley Justice & Public Safety Cabinet

125 Holmes Street, 2nd Floor Frankfort, Kentucky 40601

SECRETARY JOHN C. TILLEY was appointed as Secretary of the Justice and Public Safety Cabinet in December, 2015. He oversees more than 7,000 employees and five major departments, including Corrections, Criminal Justice Training, Public Advocacy, Juvenile Justice and the Kentucky State Police, as well as the State Medical Examiner and the Office of Drug Control Policy. Over the past two years, Secretary Tilley has led a transformative overhaul of the Department of Juvenile Justice and spearheaded a sweeping redesign of the Department of Corrections Reentry Division. In addition he headed up the 23-member Criminal Justice Policy Assessment Council, a bipartisan panel focused on lowering recidivism and building a fairer system of justice. Prior to his appointment, Secretary Tilley served well into a fifth term in the Kentucky House of Representatives, chairing the House Judiciary Committee from 2009 to 2015. He is a graduate of the University of Kentucky and received his J.D. from Salmon P. Chase College of Law. Secretary Tilley is a former chair of the National Association of State Legislature's Criminal Law and Justice Committee. He also serves on various boards and committees, notably on the Council of State Governments (CSG) Executive Committee and CSG's Justice Center Leadership Council and Executive Committee. B. Scott West Department of Public Advocacy 5 Mill Creek Drive Frankfort, Kentucky 40601 B. SCOTT WEST is Deputy Public Advocate for the Kentucky Department of Public Advocacy in Frankfort; prior to that, he was General Counsel for the agency for six years. Mr. West has also served as the Bluegrass Regional Manager in the Richmond, Field Office, the Directing Attorney for the Murray Field Office, and a staff attorney in the Hazard Field Office. He is a graduate of the University of Kentucky Law School (1988), and Vanderbilt University (1985). He is the editor of the Kentucky Pretrial Release Manual, and leads the agency’s efforts in pretrial release advocacy. Currently, he is a member of the Kentucky Bar Association’s Ethics Committee, and is education chair and vice-president of the Kentucky Association of Criminal Defense Lawyers. He is a past chair and current member of the KBA Criminal Law Section. In 2017, he received the KBA Thomas B. Spain CLE Award and in 2015 he received the Bruce K. Davis Bar Service Award for representing the KBA against the United States in the Kentucky Supreme Court. He received KACDL’s Frank E. Haddad, Jr. Award in 2014, DPA’s Gideon Award in 2011, and the Texaco General Counsel’s Litigation Award in 1993.

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Thomas B. Wine Office of the Commonwealth's Attorney

514 West Liberty Street Louisville, Kentucky 40202

THOMAS B. WINE serves as the Commonwealth's Attorney for the 30th Judicial Circuit. He received his B.A. from the University of Louisville and his J.D. from the Louis D. Brandeis School of Law at the University of Louisville. Mr. Wine is a member of the Louisville, Kentucky and American Bar Associations, Association of Prosecuting Attorneys, National District Attorneys Association. He serves on the board of directors of the Pretrial Justice Institute and the Exploited Childrens Help Organization.

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THE NEXT STEP IN PRETRIAL RELEASE IS HERE: THE ADMINISTRATIVE RELEASE PROGRAM

B. Scott West Reprinted with permission of the author from The Advocate, January 2017.

Without exaggeration, the biggest reform in pretrial release since the 1976 Kentucky Bail Reform Act – HB 463 notwithstanding – arrives in all 120 counties on January 1, 2017. District Court practitioners should see a great increase in the number of their misdemeanant clients being let out of jail, even before first appearance in Court. The reason is Kentucky Supreme Court Order 2015-24, which authorizes the Non-Financial Uniform Schedule of Bail Administrative Release Program, goes statewide after a successful implementation as a pilot program in 20 counties. "Administrative release" means that certain persons charged with misdemeanors – those who are low risk (or on the low side of moderate risk) to fail to appear in court or to reoffend by committing new criminal activity – will be subject to automatic pretrial release upon their "own recognizance" if they meet the other criteria specified in the Order. As lawyers are fond of saying, "certain exclusions apply," but for the most part, most non-sexual, non-violent, non-DUI misdemeanants who fall outside of the high risk category will be able to be released even before arraignment. Order 2015-24 was adopted by the Supreme Court in December, 2015, with only one justice dissenting, and is, therefore, binding upon all the district courts. At present, the Order currently is binding only upon the 20 counties in the pilot program, although other counties were allowed to, and did, "opt in." Starting January 1, 2017, all district courts shall begin releasing all those who fall within the mandatory R.O.R. release categories. To summarize the Order: • Pretrial Officers will continue to assess all verified and eligible defendants by use

of the pretrial risk assessment, on a scale of 2-12, and will specify whether a defendant is a low risk (2-5), moderate risk (6-9) or high risk (10-12). The risk assessment instrument will be applied to the defendant prior to or at the approximate time of the pretrial interview;

• Defendants who score in the "low risk" category and who are not otherwise

ineligible shall be released on their own recognizance with conditions as ordered by the court;

• Defendants who score in the "moderate risk" category with either a 6 or a 7 and

who are not otherwise ineligible shall be released on their own recognizance with supervision as per the Pretrial Services risk/needs matrix.

• Persons excluded from eligibility under this Order are those persons charged

with:

o A "violent crime" listed in Appendix B to the Order;

o A "sexual offense" listed in Appendix C to the Order;

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o Aggravated DUI first (other than one aggravated by a refusal) or any second offense or greater DUI;

o Contempt of court;

o Violation of an order of conditional discharge of a misdemeanor; or

o Violation of an order of probation of a felony. • Defendants who have previously failed to appear on the charge, or decline the

pretrial services interview are not eligible under the schedule. • Persons who are assessed as a "moderate risk" of 8 or 9, or who are a "high

risk" shall only be released upon judicial review with supervision and conditions of release.

Judges may deviate from the schedule, but only in two respects: The court may

expand the schedule to include certain non-violent, non-sexual Class D felonies, other than a charge of "fugitive from justice," or may expand the schedule to include "moderate risk" defendants who score an 8 or 9. Such deviations may be made by passage of a local rule, and no other deviations are permitted by the order.

Such a broad and sweeping change in pretrial practice, which is scheduled to occur overnight, may not occur without some hiccups and snafus. Criminal defense attorneys must be diligent to make sure that their clients who are eligible under the Order are in fact released, and that conditions ordered by the court are reasonably tailored to the defendant. The criminal rules which pertain to bail appeals still apply. Supreme Court Order 2015-24 in its entirety, with Appendices, can be found at: http://courts.ky.gov/courts/supreme/Rules_ Procedures/201524.pdf.

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FIVE BAIL CASES THE KENTUCKY CRIMINAL DEFENSE ATTORNEY ABSOLUTELY MUST KNOW (AND WHY)

B. Scott West Reprinted with permission of the author from The Advocate, January 2017.

The "presumption of innocence" is meaningless to the defendant in a criminal case who cannot obtain pretrial release and get out of jail. More than the merits of his case, more than any defense he may have to his prosecution, your client wants to talk to you first about bail and how he is going to get out of jail. The need to get out of jail is immediate, and working on the defense of his case can wait. Moreover, the Performance Guidelines for Criminal Defense Representation, published by the National Legal Aid and Defender Association, devotes Section 2 – the first substantive chapter devoted to specific practice guidelines – wholly to pretrial release, citing the "obligation to attempt to secure the pretrial release of the client under the conditions most favorable and acceptable to the client." Guideline 2.1. Finally, Kentucky Bar Association v. Donsky, 924 S.W.2d 257 (Ky. 1996) underscores the importance of pretrial release advocacy by adopting the recommendation of the Kentucky Bar Association's Board of Governors for a six-month period of suspension when an attorney was charged, among other things, for his "failure to appear at his client's first arraignment and his failure to move the court for bond reduction at the second scheduled arraignment." Thus, in order to effectively and ethically defend the criminally accused, the defense attorney must be ready and able to zealously advocate for the release of his client. To do that, the Kentucky attorney should be aware of five major bail decisions, two of them decisions of the United States Supreme Court, and three of them decisions of Kentucky courts. Just about every meaningful bail argument that can be made finds authority in one of these cases, or several in combination. Consider these cases the "Pentateuch" of bail advocacy in this Commonwealth, and cite to them early and often in bail hearings and in bail appeals/writs of habeas corpus. #1: Stack v. Boyle, 342 U.S. 1 (1951) This case is the granddaddy of all bail cases. It was decided in the height of the "red scare" – the investigation of un-American activities – when Loretta Stack and 11 other members of the Communist Party were arrested and charged with violating the Smith Act, 18 U.S.C. §2385, also known as the "Alien Registration Act of 1940," for allegedly advocating the overthrow of the United States Government. Each defendant's bail was set at varying amounts, ranging from $2,500 to $100,000. Defendants challenged the bail via writ of habeas corpus as violating the Eighth Amendment prohibition of "excessive bail." Although a very short opinion, the case is chock-full of holdings pertinent to bail advocacy both at the bail hearing level and upon appeal: The presumption of innocence implies a right to pretrial release. "[F]ederal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction… [citation omitted]. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Stack, at 3.

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Bail set higher than necessary to assure presence of the accused in court is excessive. "[T]he modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth Amendment." Stack, at 4. Judges do not have plenary and absolute discretion when setting bail, but must do so within a "zone of reasonableness." "Petitioners' motion to reduce bail did not merely invoke the discretion of the District Court setting bail within a zone of reasonableness, but challenged the bail as violating statutory and constitutional standards. As there is no discretion to refuse to reduce excessive bail, the order denying the motion to reduce bail is appealable as a 'final decision' of the District Court…" Stack, at 6. Stack v. Boyle stands for the proposition that the amount of bail must be tied to the purpose of assuring attendance at trial, not to detain, and must be tailored to the individual. "The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. … Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. The traditional standards as expressed in the Federal Rules of Criminal Procedure are to be applied in each case to each defendant." Stack, at 4-5. Stack v. Boyle applies to the states, and therefore is relevant in Kentucky bail hearings. It is now understood that the "excessive bail" prohibition of the Eighth Amendment has been applied to the states. Schilb v. Kuebel, 404 U.S. 357 (1971), stated that "the Eighth Amendment's proscription against excessive bail has been assumed to have application to the states through the Fourteenth Amendment," citing Pilkinton v. Circuit Court of Howell County, Mo., 324 F.2d 45 (8th. Cir. 1963); Robinson v. California, 370 U.S. 660 (1962). However, the actual holding in Schilb was that the Eighth Amendment was not applicable to the facts in that case, leaving constitutional scholars to doubt whether this case actually held that the excessive bail provision had actually been applied to the states. That doubt was resolved in the famous Second Amendment case, McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S. Ct. 3020, 177 L.Ed.2d 894 (2010), wherein the Supreme Court noted in footnote 12 that the "excessive bail clause" of the Eighth Amendment had been applied to the states, citing Schilb v. Kuebel. #2: U.S. v. Salerno, 481 U.S. 739 (1987) After Stack v. Boyle, supra, was decided, it was long assumed that the sole consideration when setting bail in a federal case was tied to the purpose of assuring attendance at trial, and that there were no circumstances where other considerations – like public safety – could be considered as a reason not to grant a makeable bail. It was not until the arrest of Anthony "Fat Tony" Salerno, the "street boss" of the Genovese Crime Family in New York, that the United States Supreme Court carved out an exception to the Stack v. Boyle rule, and created the additional bail consideration of "future dangerousness." Charged with crimes under the Racketeer Influenced and Corrupt Organizations Act (RICO), the government argued for detention in lieu of bail, under the Bail Reform Act of 1984 as it was then written, arguing that "no condition or combination of conditions [would] reasonably assure the appearance of [Salerno] as

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required and the safety of any other person and the community." Pursuant to the Bail Reform Act, Salerno, represented by counsel, was given a hearing at which the Government introduced evidence of Salerno's future dangerousness, including wiretap evidence that Salerno was the "boss" of a crime family, and that he had participated in wide-ranging conspiracies to aid their illegitimate enterprises through violent means. Additionally, the Government called two witnesses who asserted that Salerno was involved in two murder conspiracies. Finally, as per the Act, the judge had to make a finding of future dangerousness by "clear and convincing evidence" before Salerno could be detained without bail. The Eighth Amendment does not establish an absolute right to bail, but holds only that where bail is granted, it cannot be excessive. (The same cannot be stated about Kentucky's Constitution, which does in fact create a substantive right to bail.) "The Eighth Amendment addresses pretrial release by providing merely that '[e]xcessive bail shall not be required.' This Clause, of course, says nothing about whether bail shall be available at all. Respondents concede that the right to bail they have discovered in the Eighth Amendment is not absolute. A court may, for example, refuse bail in capital cases. And, as the Court of Appeals noted and respondents admit, a court may refuse bail when the defendant presents a threat to the judicial process by intimidating witnesses. While we agree that a primary function of bail is to safeguard the courts' role in adjudicating the guilt or innocence of defendants, we reject the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release." Salerno, at 752-53. It is important to note that in this way the United States Constitution is different from that of the Commonwealth of Kentucky. Section 17 of the Kentucky Constitution parrots the language of the Eighth Amendment's "excessive bail provision," and therefore – having been applied to the states – exports all Eighth Amendment bail cases into the substantive law of the states. However, Kentucky also has Section 16 which establishes a right to bail in language that is absent from the United States Constitution: "All prisoners shall be bailable by sufficient securities, unless for capital offenses when the proof is evident or the presumption great…" Thus, Chief Justice Rehnquist's sidestep of the Eighth Amendment would not work when interpreting the Kentucky Constitution which affirmatively holds that there is right to bail except in the case of a death penalty case. Even then, the defendant is entitled to a hearing wherein the Commonwealth has to prove that the defendant is likely guilty of the death penalty offense. Nevertheless, pretrial release should be the rule, and detention the exception: "In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." Salerno, at 755. Pretrial Detention without bail must satisfy the "Due Process" Clause. The Bail Reform Act of 1984 required a showing of "clear and convincing evidence" in order for the Government to detain an arrestee without bail. "When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, we believe that, consistent with the Due Process Clause, a court may disable the arrestee from executing that threat. Under these circumstances, we cannot categorically state that pretrial detention 'offends some principle of justice so rooted in the traditions and conscience of our people as to be

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ranked as fundamental,'" (citing Snyder v. Com. of Massachusetts, 291 U.S. 97 (1934)). Salerno, at 751. Some prosecutors may argue that Salerno only held that a "clear and convincing evidence" standard suffices to satisfy due process, but that it did not mandate such a standard, and that a lesser standard may also suffice. But see, e.g., Kleinbart v. U.S., 604 A.2d 861 (D.C. Cir. 1992) ("[T]he government must justify pretrial detention, based on the danger the defendant poses to others or the community, by clear and convincing evidence"); State v. Furgal, 13 A.3d 272 (N.H. 2010) ("We conclude that the clear and convincing evidence standard is the standard for determining whether or not the State has shown that the proof is evident or the presumption great"); Wheeler v. State, 864 A.2d 1058 (Md. App. 2005) ("[P]reventive detention" may be ordered … provided that the judicial officer is persuaded by clear and convincing evidence that no condition or combination of conditions of pretrial release can reasonably protect against the danger that the defendant presents to an identifiable potential victim and/or to the community"); Aime v. Commonwealth, 611 N.E.2d 204 (Ma. 1993) ("The challenged portions of the amendments to the Massachusetts bail statute do not pass due process scrutiny under the principles set forth in Salerno…. The Bail Reform Act requires that the government provide clear and convincing evidence to support its showing that an arrestee's release would endanger the community… The amendments [to the Massachusetts statute] do not impose any such burden of proof on the Commonwealth"). In any event, the standard for detention must be a heightened evidentiary standard, higher than probable cause or judicial discretion. Salerno applies to the states. The portion of the opinion which references the Fifth Amendment Due Process Clause necessarily applies to the states because the identical clause is contained in the Fourteenth Amendment, which applies to the states. Thus, in order for any pretrial release detention statute or case decision to pass constitutional muster, it must also pass the Salerno tests. #3: Adkins v. Regan, 233 S.W.2d 402 (Ky. 1950) In Adkins v. Regan an arrestee charged with two counts of breach of the peace was released upon a bond of $100 for each charge. Later, his bail was raised to $5,000, which Adkins could not post, which resulted in his pretrial detention. Money cannot be used to detain in a case bailable by law. "Reasonableness in the amount of bail should be the governing principle. The determination of that question must take into consideration the nature of the offense with some regard to the prisoner's pecuniary circumstances. If the amount required is so excessive as to be prohibitory, the result is a denial of bail. Under the circumstances of this case, obviously bailable by law, it appears to us that the requirement of $5,000 bail is so clearly disproportionate and excessive as to be an invasion of appellant's constitutional right." Adkins, at 405. This case equates a bail set in an amount too high to be made by the defendant to be excessive, and therefore a "denial of bail." Accordingly, there is no difference between detaining someone without setting a bail, or setting bail so high that gaining release is prohibitory. Thus, under Kentucky law – which grants a substantive right to bail – there is a persuasive argument that bail cannot be set so high that a person cannot gain release, period. But assuming that Salerno, supra, impliedly overrules this case, even then, a decision to set a bail for purposes of detention can only be reached upon clear and

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convincing evidence that the person is such a flight risk, or a danger to the public, that he should be detained. #4: Long v. Hamilton, 467 S.W.2d 139 (Ky. 1971) Long was charged with unlawful possession and trafficking of heroin. Bail was fixed in the amount of one hundred fifty thousand ($150,000) dollars. In finding the amount to be excessive under the Kentucky Constitution, Kentucky's highest court held: Bail honors the presumption of innocence. "A defendant in a criminal action is presumed innocent of any charge until convicted. The allowance of bail pending trial honors the presumption of innocence and allows a defendant freedom to assist in the preparation of his defense." Long, at 141. "Bail is for the purpose of guaranteeing the appearance of the defendant and his compliance with the terms of the bond." Long, at 141. "It is manifest that the amount of the bail should be that which in the judgment of the court will insure compliance with the terms of the bond. In determining that amount the trial court should give due regard to the ability of the defendant to give bail, the nature and circumstances of the offense charged, the weight of the evidence against him, and the character and reputation of the defendant, but he should regard these factors only to the extent that they have a bearing upon the likelihood that the defendant will flee from the jurisdiction of the court or that he will comply with the terms of the bond." Long, at 141. A large bail requires a showing of risk of flight or of some other unusual circumstance. "As we have indicated there are many circumstances in this case which would justify the requirement of bail in a large amount to insure the appearance of the accused at trial but there was no evidence of intended flight or that the accused was a fugitive when arrested or any other circumstance so unusual as to require bail in an amount so greatly in excess of that generally required under similar circumstances. We therefore feel that the requirement of bail in the amount of $150,000.00 in this case was an abuse of discretion." Long, at 142. The propensity of some persons released on bail to commit new crimes is not a reason to ignore the constitutional guarantees of bail. "We are not unmindful that some defendants, at liberty on bail pending trial of charges, commit other crimes and engage in conduct which focuses attention upon the fact that the charges remain untried. We think that there is an undercurrent of public dissatisfaction at this state of affairs. Nevertheless, the constitutional guarantees to bail remain unaltered. Any attempt to impose excessive bail as a means to deny freedom pending trial of charges amounts to a punishment of the prisoner for charges upon which he has not been convicted and of which he may be entirely innocent. Such a procedure strikes a blow at the liberty of every citizen. The answer to the problem posed by the increasing number of defendants who commit other crimes while awaiting trial is a speedier trial of the charges against them. Prompt disposition of criminal charges redounds to the benefit of the accused and the public alike." Long, at 142. #5: Abraham v. Com., 565 S.W.2d 152 (Ky. App. 1977) Abraham was the first case to be decided under the 1975 Kentucky Bail Bond Reform Act. In addition to abolishing paid bail bondsmen in this state, the Act also made some

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sweeping changes to the practice of bail, not all of which were welcomed. Among them was the creation of KRS 431.525, which mandated that the amount of bail fixed for a criminal offense shall be: (a) Sufficient to insure compliance with the conditions of release set by the court; (b) Not oppressive; (c) Commensurate with the nature of the offense charged; (d) Considerate of the past criminal acts and the reasonably anticipated conduct of the defendant if released; and (e) Considerate of the financial ability of the defendant. Following passage of the Act, and after a bail hearing, the trial judge set bail on a theft case in the amount of twenty-five thousand ($25,000) dollars on each count of theft, which was the "bond always set by this Court in theft and related cases." Abraham, at 157. In finding this amount of bail to be excessive, the Court of Appeals made the following findings: The source of judicial discretion is the General Assembly and the Supreme Court, not inherent powers based in the Kentucky Constitution. "Great discretion is vested in the circuit judge respecting bail. When there has been an exercise of discretion by the circuit judge in fixing bail, that decision will not be disturbed by this court on appeal. Long v. Hamilton, 467 S.W.2d 139 (Ky. 1971). However, the record should demonstrate that the circuit judge did in fact exercise the discretion vested in him under the statutes and rules [emphasis added.]" Abraham, at 158. Since the General Assembly is the source of the statutes, and the Kentucky Supreme Court is the author of court rules, the trial judge's discretion is derived NOT from inherent powers of the judicial branch in the Kentucky Constitution, but rather are as provided by the legislature and the Supreme Court. This is important, as it implies that the amount of discretion afforded to trial judges is subject to change via legislative enactment and/or changes in Supreme Court rules. Under the statutes, a trial judge must make decisions concerning the "amount of bail" pursuant to ALL of the factors listed in KRS 431.525, not just one or several. "The order reflects that the trial court considered only the nature of the offenses in fixing the amount of bail. This is a proper factor to consider in fixing the amount of bail. However, under KRS 431.525(1) and RCr 4.16(1), the trial court is also required to consider the defendant's past criminal record, his reasonably anticipated conduct if released, and his financial ability to give bail…. Even though the circuit judge had discretionary authority respecting bail, the record should clearly reflect that the circuit judge did give consideration to KRS 431.520 and RCr 4.10 and that the amount of any bail was determined according to the standards set forth in KRS 431.525 and RCr 4.16(1). See Brewer v. Commonwealth, 550 S.W.2d 474, 478 (Ky. 1977)." Abraham at 157-58. Deciding bail after consideration of only ONE factor listed in KRS 431.525 is an abuse of discretion. "[T]he record should demonstrate that the circuit judge did in fact exercise the discretion vested in him under the statutes and rules. In the present case,

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the record shows only that the circuit judge always sets the bond at $25,000.00 on every theft charge. This does not constitute the exercise of judicial discretion. See, Wyatt v. Ropke, 407 S.W.2d 410 (Ky. 1966)." Abraham, at 158. Courts should give written reasons for their bail decisions. "If there is to be meaningful appellate review, either the order or the record of the hearing should contain a statement of the circuit judge's reasons for refusing to reduce bail." Abraham, at 158. Stack v. Boyle's language concerning the use of a writ of habeas corpus for the trial court's failure to set bail "within a zone of reasonableness" was quoted and adopted by the Abraham court. "We believe that the decision of the Supreme Court holding such orders appealable is sound, and we adopt it." Abraham, at 155. Putting All of the Cases Together… In Kentucky, the trial court has the discretion to set bail in an amount so as to ensure appearance in court and compliance with conditions of release. (Long, Abraham) But this discretion is not unlimited (Long, Abraham); it must be within a "zone of reasonableness." (Stack, Abraham) In exercising that discretion, the trial court must consider all of the factors pertaining to bail in KRS 431.525, as well as the defendant's risk of flight, and risk of not complying with judicial orders. (Abraham, Long) Considering only one, or less than all of the KRS 431.525 factors is an abuse of discretion. (Abraham) However, the trial court cannot fix the amount of bail to detain, as bail set in an amount so excessive as to be prohibitory amounts to denial of bail, that is, detention. (Adkins, Long) Even if the court believes that the defendant has a propensity to commit another criminal act while on release, any detention (or bail set in an amount so as to detain) must be done in accordance with due process, which requires a finding by "clear and convincing evidence" of risk of flight or future dangerousness. (Salerno) In any event, the court must give written reasons for its bail decision, so that there will be record on appeal. (Abraham)

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PRETRIAL DETENTION AND POLICY RECOMMENDATIONS Secretary John C. Tilley

I. PRETRIAL DETENTION

Since abolishing commercial bail in 1976, Kentucky has been a national leader in pretrial practices, and has made substantial advancements in the use of risk-based pretrial decision-making through statewide Pretrial Services, housed under the Administrative Office of the Courts (AOC). Emerging research around effective pretrial policy supports Kentucky’s current direction, and highlights opportunities for improvement. Currently, two-thirds of all district court bookings are released at some point before disposition or indictment, though there is substantial variation in release rates statewide. Pretrial success rates for those who are currently released in Kentucky are very high: 88 percent of both felony and misdemeanor defendants released pretrial in 2015 had no new arrest during their pretrial period. While criminologists have been studying post-conviction imprisonment and community corrections for many decades, publications on the pretrial phase of the criminal justice system were, until recently, focused almost exclusively on legal and constitutional questions rather than scientific ones. In the last decade, however, rigorous scientific research into the area of pretrial policy has rapidly expanded. Today, a growing body of literature supports the following three principles of pretrial policy. A. Pretrial Risks can be Predicted and Used to Guide Release Decisions

In Kentucky, all non-capital defendants are "bailable" under the constitution.1 This means that there is a presumption of unsecured release for all defendants. A judge may only impose pretrial conditions of release – including monetary bail – if he or she finds that: (1) unsecured release will not reasonably assure the appearance of the defendant; or (2) the person is a flight risk or a danger to others.2 Research demonstrates that pretrial risk assessment tools can accurately predict these types of risk by identifying and weighing factors that are associated with each type of pretrial failure.3

Research also supports using these assessments to guide decisions about conditions of release. Restrictive release conditions, such as

1 KY. Const. §16. 2 KRS 431.520. 3 Mamalian (2011), "State of the Science of Pretrial Risk Assessment," https://www.bja.gov/ publications/pji_pretrialriskassessment.pdf; Lowenkamp & Van Nostrand (2013), "Assessing Pretrial Risk Without a Defendant Interview," http://www.arnoldfoundation.org/wp-content/uploads/2014/02/ LJAF_Report_no-interview_FNL.pdf.

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electronic monitoring and drug and alcohol testing, do not improve outcomes for all pretrial defendants. Restrictive release conditions can decrease the likelihood of pretrial failure (measured as failure to appear or bail revocation due to new arrest) for higher risk defendants. However, when restrictive conditions are applied to lower risk defendants, they can actually do the opposite. Compared to similar defendants not assigned these restrictive release conditions, lower risk defendants with restrictive release conditions are more likely to fail during their pretrial release period.4 Kentucky has made substantial progress with risk-based pretrial decision-making, especially for misdemeanants: the Administrative Release Program administered by AOC’s Pretrial Services has established risk-based release determination for nonviolent, non-sex misdemeanants, and as a result the rate of Own Recognizance release increased for misdemeanants between 2012 and 2016. However, despite similar pretrial outcomes and criminal profiles, there has been a decline in the use of Own Recognizance release for felony defendants since 2012. Pretrial outcomes for felony defendants are increasingly important for Kentucky’s jail population: though overall bookings in district court declined between 2012 and 2016, the decline was driven entirely by misdemeanor bookings, while felony bookings make up an increasing share of the pretrial cohort (see Figure 10).

Figure 10. Despite Overall Decrease in Bookings, Felony Bookings Have Increased

Source: Data from the Kentucky Administrative Office of Courts, Analysis by CJI

4 VanNostrand (2009), "Pretrial Risk Assessment in the Federal Court," https://university.pretrial.org/ HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=baae2eee-1b28-1605-713f-d3b97b8d218f&forceDialog=0.

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B. Pretrial Detention Longer than 24 Hours Can Lead to Worse Outcomes, Particularly for Low-risk Defendants

Researchers have examined the impact of pretrial detention on defendants’ outcomes. In one study, researchers matched defendants with similar criminal charges, risk levels, and demographic characteristics who were detained pretrial for different lengths of time. This study found that low-risk defendants who are detained for more than 24 hours experience an increased likelihood of failure to appear and of new criminal activity during the pretrial period.5 In addition, the study found that being detained for the entirety of the pretrial period is associated with an increased likelihood of new criminal activity across all risk categories. However, Kentucky continues to use pretrial detention for low-level, low- and moderate-risk defendants despite the likelihood of increased criminality. The Work Group found that in 2016, 35 percent of cases closed in district court, meaning misdemeanor convictions or dismissals, were detained for longer than one week, including 31 percent of low and moderate risk cases.

Figure 11. 35 Percent of District Court Dispositions Stay for Longer than a Week

Source: Data from the Kentucky Administrative Office of Courts, Analysis by CJI

5 Lowenkamp, VanNostrand, & Holsinger (2013), "The Hidden Cost of Pretrial Detention," https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=61863907-cf0d-3c0c-55a2-b8ee73f86829&forceDialog=0. Note: For this population, pretrial detention of eight to 14 days and 31 or more days were not significantly associated with an increase in the likelihood of failure to appear. Statistically significant differences were found for those who were detained for two to three, four to seven, and five to 30 days as compared to one day or less.

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C. Unsecured Bail Is as Effective as Secured Bail

Across the nation, the length of pretrial detention is often tied to whether a defendant can afford to pay secured monetary bail, i.e., an upfront cash amount that is forfeited in the event of nonappearance. While this is a common practice, it does not have a foundation in the growing body of research on pretrial risk. Ability to pay monetary bail does not make a person low risk.6 There are defendants who cannot afford monetary bail who are unlikely to engage in new criminal activity during the pretrial period. Additionally, there are defendants who can afford to pay their monetary bail, but who are more likely to engage in new criminal activity. For these reasons, monetary bail is not the most effective tool for protecting the public during the pretrial period. Research supports the use of unsecured monetary bail and other release conditions in place of secured monetary bail to reduce length of pretrial detention. Research has shown that when comparing defendants with similar risk levels, defendants released on unsecured bail are just as likely to appear in court and refrain from new criminal activity as defendants released on secured bail. In Kentucky, despite a statutory presumption against the use of secured monetary bail,7 34 percent of initial bond decisions in 2016 involved monetary bail. The Work Group found substantial growth in the use of monetary bail for low-risk defendants over the last five years, from 22 percent to 31 percent of low-risk releases at district court between 2012 and 2016. AOC data shows that the amount of the secured bond is not a risk-driven decision: the pattern of bond amounts set did not vary by risk level in 2016 (see Figure 12).

6 Schnacke (2014), "Money as a Criminal Justice Stakeholder: The Judge’s Decision to Release or Detain a Defendant Pretrial," http://www.pretrial.org/download/research/Money%20as%20a %20Criminal%20Justice%20Stakeholder.pdf. 7 KRS 431.520; KRS 431.066.

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Figure 12. Bond Amounts Do Not Vary by Risk Level

Source: Data from the Kentucky Administrative Office of Courts, Analysis by CJI

II. POLICY RECOMMENDATIONS

Based on the Work Group’s review of evidence-based practices and an evaluation of the Commonwealth’s alignment with those practices in the areas of sentencing, release, pretrial, and supervision, the Work Group developed 22 policy recommendations, which together are projected to avert 79 percent of the growth in the prison population through 2027 and provide an avenue for Kentucky to avoid nearly $340 million in additional spending over the next decade.

A. The Following 22 Policy Recommendations Will:

1. Strengthen pretrial release;

2. Focus prison and jail resources on serious and violent offenders;

3. Strengthen community supervision;

4. Minimize financial barriers to successful reentry; and

5. Ensure the sustainability of criminal justice reforms.

B. The Work Group’s Recommendations

Strengthen pretrial release

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1. Recommendation 1: Expand the Administrative Release Program.

In 2013, the Kentucky Administrative Office of the Courts established an Administrative Release Program intended to expedite the pretrial release of low- to moderate-risk defendants charged with nonviolent, non-sex offenses, and to direct resources to pretrial supervision for higher-risk defendants.8 From 2013 to 2016, the Administrative Release Program expanded for misdemeanants, but use of the program for Class D felony defendants – a group with similar characteristics to Class A misdemeanor defendants – remains low. The Work Group reviewed research demonstrating that even short jail stays for low- and moderate- risk defendants greatly increase pretrial failure rates. Moreover, pretrial detention of any length significantly increases the likelihood of a defendant ultimately receiving a longer jail or prison sentence.9 In Kentucky, a significant number of low- and moderate-risk misdemeanor defendants are still being held pretrial. In 2016, 24,676 low- and moderate-risk district court cases (i.e., misdemeanor convictions or dismissals only) were detained pretrial for more than one week. By contrast, pretrial failure rates for those who are released are low: 90 percent of defendants released pretrial – both those charged with misdemeanors and those charged with felonies – had no new criminal arrest during their pretrial release period.

The Work Group recommends: a. Expanding the AOC’s existing pretrial Administrative

Release Program to include nonviolent, non-sex Class D felonies.

b. Allowing counties, by passage of local rule, to further

expand Administrative Release to include low- and moderate-risk defendants charged with nonviolent and non-sex Class C felonies.

2. Recommendation 2: Limit the use of monetary bail.

In the United States, a person may not be jailed solely because they cannot afford to pay for their release, unless the court has made an inquiry into the person’s ability to pay and determined

8 Kentucky Supreme Court Standing Order 2016-10. 9 Lowenkamp, VanNostrand, & Holsinger (2013), "The Hidden Cost of Pretrial Detention," https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=61863907-cf0d-3c0c-55a2-b8ee73f86829&forceDialog=0.

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that non-payment was willful, or that no other condition will serve the government’s legitimate interests.10 In Kentucky, a significant number of defendants continue to be held pretrial on relatively low bail amounts despite the statutory presumption in favor of unsecured release for low- and moderate- risk defendants. In fact, there was substantial growth in the use of monetary bail for low-risk defendants over the last five years, from 22 percent to 31 percent of low-risk releases at district court between 2012 and 2016. The Work Group recommends: a. Establishing a pretrial detention option for violent and sex

offenders (of any risk level) that allows a judge to detain a defendant upon making a determination that no combination of conditions of release would both ensure the defendant’s reappearance in court and prevent re-offense during the pretrial period.

b. Restricting the use of monetary bail to high-risk defendants

charged with a nonviolent, non- sex offense. c. Developing appropriate conditions for the release of all low

and moderate risk defendants.

10 Bearden v. Georgia, 461 U.S. 660, 672-73 (1983).

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POSITION PAPER ON FINANCIAL CONDITIONS OF RELEASE Jail Policy Committee

Metro Criminal Justice Commission "What has been demonstrated here is that usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money. How much money does the defendant have?"

– U.S. Attorney General Robert F. Kennedy Recommendation Encourage use of nonfinancial conditions of release and work toward the elimination of money bail and the adoption of a system in which pretrial detention is determined following a hearing in which evidence is offered by the prosecution and findings are made by the court that establish that the defendant is a threat to public safety. Background Over recent years, there has been a growing consensus across the country to eliminate financial conditions of pretrial release. This consensus cuts across party lines and has been echoed in position statements generated by numerous national organizations. This movement has been rooted in concerns that the practice is "unjust, expensive, ineffective, and even counterproductive (New York Times, 2017)" and a growing body of research indicating that even short-term detention can result in poor outcomes for defendants. Review of Relevant Research Findings There is no empirical evidence to suggest that those released after posting a

cash bond are more likely to present at trial, or are less likely to reoffend while released. Lowenkamp, VanNostrand and Holsinger (2013) found that a money-based pretrial release system enables over 50 percent of defendants who are rated a high risk to fail to appear or reoffend to be released, while those who are rated a lower risk are more regularly detained.

Research conducted by the Laura and John Arnold Foundation has found that

while controlling for other relevant factors, defendants detained for their entire pretrial period are over four times more likely to be sentenced to jail and over three times more likely to be sentenced to prison (and for longer periods in both cases) than defendants released at some point, and the results were even more pronounced for low risk defendants (Lowenkamp, VanNostrand & Holsinger, 2013).

A 2013 research study comparing pretrial release outcomes by money bond

type, controlling for the statistical risk of defendants released pretrial, found that unsecured bonds are as effective at achieving court appearance and public safety as secured bonds. The study also found that higher dollar amounts of

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secured bonds are associated with more pretrial jail bed use, but not increased court appearance rates (Jones, M.R., 2013).

Overall, "the research shows that defendants detained in jail while awaiting trial

plead guilty more often, are convicted more often, are sentenced to prison more often, and receive harsher prison sentences than those who are released during the pretrial period. These relationships hold true when controlling for other factors, such as current charge, prior criminal history, and community ties (Pretrial Justice Institute, 2012)."

Research has shown that spending as few as two days in jail can increase the

likelihood of a sentence of incarceration and the harshness of that sentence, reduce economic viability, promote future criminal behavior, and worsen the health of the largely low-risk defendants who enter them – making jail a gateway to deeper and more lasting involvement in the criminal justice system at considerable costs to the people involved and to society at large (Vera Institute of Justice, February 2015).

Across America, there is a tendency to over-supervise defendants, and the

research is becoming clear that unnecessary supervision of lower risk defendants can actually harm both those defendants and society at large (also implicating excessiveness and due process) (VanNostrand & Keebler, 2009).

Research conducted by the Prison Policy Initiative (Rabuy and Kopf, July 2015)

found that in 2014, incarcerated people had a median annual income of $19,185 prior to their incarceration, which is 41 percent less than non-incarcerated people of similar ages. Further, the study found that incarcerated people in all gender, race, and ethnicity groups earned substantially less prior to their incarceration than their non-incarcerated counterparts of similar ages.

"Pretrial detention imposes significant costs to counties. According to the U.S.

Attorney General, county governments spend around $9 billion annually on jailing defendants while they are awaiting trial (Holder, June 2011). In addition to direct county jail costs, detaining the pretrial population produces indirect costs. Pretrial detention may result in defendants' losing employment, adversely affecting family relationships and creating economic hardship for the defendant's financial dependents, increasing the family's dependence on the county safety net. Further, defendants incarcerated during pretrial may experience the reduction or loss of access to health care and social services, which are difficult to provide in county jails (Ortiz, July 2015)."

In looking for ways to reduce correctional populations to better manage costs, the

pretrial population must have a prominent place in any discussions. Just as the money bail system was invented as a way to better manage jail costs, cost management now demands major reforms to existing money bail practices (Clark, 2010).

Nationally, nearly 75 percent of both pretrial detainees and sentenced offenders

are in jail for nonviolent traffic, property, drug or public order offenses. Underlying the behavior that lands people in jail, there is often a history of substance abuse, mental illness, poverty, failure in school, and homelessness. Moreover, jailing

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practices have a disproportionate impact on communities of color (VERA Institute of Justice, February 2015).

Position Statements of National Organizations NACo American County Platform and Resolutions (2017-2018) – Resolution on

Improving Pretrial Justice

Adopted Policy: The National Association of Counties (NACo) urges the Department of Justice to continue efforts to advise state, county and municipal courts to acknowledge that the principles of due process and equal protection require that courts not employ bail and bond practices that cause indigent defendants to remain incarcerated even for a few days solely because they cannot afford to pay for their release. NACo further urges DOJ to advise that all county or state pretrial justice systems: 1. Promote and support the adoption of evidence-based risk

assessment completed prior to initial appearance and risk management strategies in setting of non-monetary and least onerous conditional release bail determination;

2. Eliminate practices that cause defendants to remain incarcerated

even for a few days solely because they cannot afford to pay for their release;

3. Call for the elimination of commercially secured bonds at any time

during the pretrial phase; 4. Call for the shift from secured to unsecured money bond at any

time during the pretrial phase; 5. Promote and support the practice of least restrictive graduated

conditions of release which can be adjusted according to the compliance or non-compliance of the individual;

6. Call for the ability of every judge to conduct a preventive detention

hearing with full due process protections so that detention eligible defendants are detained under accepted evidentiary standards;

7. Promote judicial training and development that addresses how

best practices and identifying sources of implicit bias can reduce racial and gender disparities.

American Bar Association House of Delegates Resolution – 112C Pretrial

Release and Cash Bail (August 2017)

RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to adopt policies and procedures that:

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1. Favor release of defendants upon their own recognizance or unsecured bond;

2. Require that a court determine that release on cash bail or

secured bond is necessary to assure the defendant's appearance and no other conditions will suffice for that purpose before requiring such bail or bond;

3. Prohibit a judicial officer from imposing a financial condition of

release that results in the pretrial detention of a defendant solely due to the defendant's inability to pay;

4. Permit a court to order a defendant to be held without bail where

public safety warrants pretrial detention and no conditions of pretrial release suffice, and require that the court state on the record the reasons for detention; and

5. Bar the use of "bail schedules" that consider only the nature of the

charged offense, and require instead that courts make bail and release determinations based upon individualized, evidence-based assessments that use objective verifiable release criteria that do not have a discriminatory or disparate impact based on race, ethnicity, religion, socio-economic status, disability, sexual orientation, or gender identification.

National Association for Public Defense Policy Statement on the Predatory

Collection of Costs Fines, and Fees in America's Criminal Courts (May 13, 2015)

8. The practice of monetary bond should be eliminated, and never be used as a means to detain or to collect unpaid fines, fees or court costs.

U.S. Department of Justice (February 13, 2015)

The Justice Department filed a Statement of Interest with the U.S. District Court for the Middle District of Alabama in Varden v. City of Clanton. In the class act litigation, the plaintiff alleged that incarcerating individuals solely because of their inability to pay a cash bond violates the U.S. Constitution. Christy Varden, a 41-year-old mother of two, sued the city after being arrested and charged with four offenses, including shoplifting. She was told she would have to pay a $500 bond for each of the misdemeanor offenses, but because she was unemployed and had no money, she remained in jail until the day after she filed the lawsuit, when she was released on her own recognizance. The Justice Department argued that no court should set bail or bond amounts solely on the charge. "If Clanton's bail system indeed fixes bond amounts based solely on the arrest charge, and does not take individual circumstances into account, the court should find this system to be unconstitutional. Not only are such schemes offense[sic] to equal protection principles, they also constitute bad policy."

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International Association of Chiefs of Police Resolution (October 21, 2014)

RESOLVED, that the International Association of Chiefs of Police calls for law enforcement leaders to advocate in their jurisdictions, regions and states for: the use of a validated, empirically based risk assessment tool in making pretrial release and detention decisions; legislation enabling the judiciary to use preventive detention for high-risk individuals; and the establishment of more robust pretrial supervision services, with the purpose of improving public safety.

Conference of Chief Justices, Resolution 3 (2013)

Whereas, pretrial judicial decisions about release or detention of defendants before disposition of criminal charges have a significant, and sometimes determinative, impact on thousands of defendants every day; and Whereas, pretrial release decisions add great financial stress to publicly funded jails holding defendants who are unable to meet financial conditions of release; and Whereas, many of those incarcerated pretrial do not present a substantial risk of failure to appear or a threat to public safety, but do lack the financial means to be released; and Whereas, evidence-based assessment of the risk that a defendant will fail to appear or will endanger others, if released, can increase successful pretrial release without imposing unnecessary financial conditions that many defendants are unable to meet; and Whereas, defendants who are detained can suffer job loss, home loss, and disintegrated social relationships, and, according to the Bureau of Justice Assistance, "receive more severe sentences, are offered less attractive plea bargains and are more likely to become 'reentry' clients because of their pretrial detention regardless of charge or criminal history;" and Whereas, imposing conditions on a defendant that are appropriate for that individual following a valid pretrial assessment substantially reduces pretrial detention without impairing the judicial process or threatening public safety; and Whereas, in 2012 the Conference of State Court Administrators (COSCA) adopted a Policy Paper on Evidence-Based Pretrial Release, which concludes with the following recommendations… Now, therefore, be it resolved that the Conference of Chief Justices commends and endorses the Policy Paper on Evidence-Based Pretrial Release and joins with COSCA to urge that court leaders promote, collaborate, and accomplish the adoption of evidence-based assessment of risk in setting pretrial release conditions and advocate for the

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presumptive use of non-financial release conditions to the greatest degree consistent with evidence-based assessment of flight risk and threat to public safety and to victims of crimes.

Conference of State Court Administrators – Policy Paper on Evidence-Based

Pretrial Release (2012-2013)

The Conference of State Court Administrators advocates that court leaders promote, collaborate toward, and accomplish the adoption of evidence-based assessment and risk in setting pretrial release conditions. COSCA further advocates the presumptive use of non-financial release conditions to the greatest degree consistent with evidence-based assessment of flight risk and threat to public safety and to victims of crime.

National Association of Criminal Defense Lawyers' Policy on Pretrial Release and

Limited Use of Financial Bond, July 28, 2012)

NACDL endorses the following policies regarding pretrial release:

Establishment of guidelines on pretrial release, conditions and detention

Creation of an independent pretrial services agency to conduct

pretrial investigation and make an evidence-based recommendation to the court on the advisability of release and bail conditions

Release decision should begin with consideration of personal

recognizance release Financial bond should be used as a last resort

NACDL endorses the ABA's recommendation calling for the abolition of commercial compensated surety – bail bondsman. NACDL endorses the use of the uncompensated surety, e.g., the accused's parents, family and other parties with an interest in the accused's well-being.

National Sheriffs' Association Supports and Recognizes the Contribution of

Pretrial Services Agencies to Enhance Public Safety (June 18, 2012)

…Whereas, a justice system relying heavily on financial conditions of release at the pretrial stage is inconsistent with a fair and efficient justice system; …Whereas, nationwide most pretrial inmates are incarcerated not because of their risk to public safety or of not appearing in court, but because of their inability to afford the amount of their bail bond; …Whereas, the majority of jail inmates nationwide are on pretrial status, contributing to the nation's problem of jail crowding;

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…Whereas, pretrial risk assessment of all defendants with a validated instrument and pretrial supervision of some defendants released to the community pending trial helps to maximize court appearances while maintaining public safety; …Now, therefore, be it resolved, that the National Sheriffs' Association supports and promotes a fair and efficient justice system; provide assistance to sheriffs in the administering of a safe jail and reducing jail crowding; and help relieve the financial burden on taxpayers.

Justice Policy Institute Recommendations (Bail Fail, 2012)

1. Eliminate money bail. Some U.S. jurisdictions have all but eradicated the use of money bail in their pretrial justice process. These jurisdictions typically have a robust pretrial services agency, validated risk assessments, and other processes in place to assure defendants return to the community safely and attend court hearings.

Association of Prosecuting Attorneys Policy Statement on Pretrial Justice (2011)

The Board of Directors of the Association of Prosecuting Attorneys recognizes the value of accurate and reliable pretrial information provided to prosecutors and magistrates for the enhancement of public safety, safeguarding the judicial process, and aiding prosecutors in their ability to determine appropriate diversions and special court admissions. Pretrial services employing validated risk assessments provide useful data and offer practical information essential to making informed decisions during court proceedings and determining conditions of supervision and sentencing, when appropriate.

American Council of Chief Defenders – Police Statement on Fair and Effective

Pretrial Justice Practices (June 4, 2011)

This American Council of Chief Defenders Policy Statement calls for a new commitment by all criminal justice stakeholders to ensure fair and appropriate pretrial release decision-making, and outlines key action steps for each pretrial actor. In particular, this statement calls upon defenders to advance the following initiatives:

Examine pretrial release practices within their own jurisdictions to

identify key areas of improvement. Identify and implement national standards and best practices. Develop collaborative efforts among all criminal justice stake-

holders to improve pretrial practices. Develop effective pretrial litigation strategies.

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National District Attorneys Association – National Prosecution Standards (2010)

4-4.4 Alternatives to Pretrial Incarceration Prosecutors should recommend bail decisions that facilitate pretrial release rather than detention to the extent such release is consistent with the prosecutor's responsibilities set forth in Section 4-4.1.

Commentary – These provisions recognize a respect for the presumption of innocence, and therefore state a clear preference for release of defendants pending trial.

American Jail Association Resolution on Pretrial Justice (October 24, 2010)

…Whereas, pretrial services can provide neutral and objective information required to make an appropriate bail recommendation to the court by utilizing tools such as risk assessments and drug and mental health screening instruments; …Whereas, pretrial supervision can be a safe and cost effective alternative to jail for those awaiting trial; …Whereas, the bond industry provides little or no supervision of those individuals awaiting trial; …Now therefore be it resolved, that the Board of Directors of the American Jail Association recognizes the value of high-functioning pretrial services agencies to enhance public and officer safety, safeguard the judicial process, and aid jail administrators in safely managing jail populations.

National Association of Pretrial Service Agencies (NAPSA) Performance

Standards and Goals for Pretrial Diversion/Intervention (November 2008)

3.2 No potential participant should be denied access to the pretrial diversion/intervention option based upon race, ethnic background, religion, gender, disability, marital status, sexual orientation or economic status. No person who is protected by applicable federal or state laws against discrimination should be otherwise subjected to discrimination for[sic]

National Association of Pretrial Service Agencies (NAPSA) Standards on Pretrial

Release, Third Edition (October 2004)

In contrast to the 1978 Standards, these Standards do not call for the complete elimination of financial conditions of release. However, recognizing that the ability of a defendant to meet financial conditions has no relation to the risk that the defendant may pose to public safety, they restrict the use of financial conditions to situations where there is a risk of nonappearance for scheduled court dates and provide that financial

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conditions can be used only when no other conditions will reasonably assure the defendant's appearance. The Standards require that financial conditions be set at an amount that is within the financial ability of the defendant to post, call for the abolition of compensated sureties, provide that financial conditions should never be set simply by reference to a "bail schedule" that establishes money bail amounts on the nature of the charge, and state flatly that financial conditions should never be used in order to detain the defendant. Financial conditions are never to be used in order to protect again future criminal conduct or to protect the safety of the community or any person. If a bond is to be posted, this can be done only by uncompensated sureties.

National Trends and Legislative Action One major policy shift corresponding with the rise in the pretrial detainee population has been the increase in the use of money bond. Notwithstanding the presumption for release on the least restrictive conditions, historically, money bond has been used in the majority of cases and its use is on the rise (Pretrial Justice Institute, 2012). "In 1990, most felony defendants who were freed from jail pending the resolution of their cases were released on non-financial conditions (comparable national data on misdemeanor defendants not available). In 2009 (the latest year for which data are available) those released on their own recognizance made up only 23 percent of all felony defendants released pretrial. While an additional 15 percent were released on other types of non-financial bail, the remaining 61 percent of defendants were required to post financial bail, either by providing the whole or portion of the total amount or equivalent collateral (Subramanian et. al., February 2015)." In July 2017 Senators Rand Paul and Kamala Harris co-sponsored legislation that would incentivize states to reform their systems of money bail. The bill would require grant recipients to move away from money bail systems to "individualized, pretrial assessments" that are objective, research-based, and locally validated. In support of the measure, statistics were cited that more than 450,000 Americans are in jail awaiting trial on any given day, and the vast majority are there because they can't afford bail rather than because a judge has deemed them a risk to the general public. The legislation comes at a time that bail reform is gaining momentum across the nation. A number of states, including New Mexico, New Jersey and Maryland have taken steps to end the practice based upon bipartisan support. Review of Kentucky Legislation related to Pretrial Release Kentucky abolished commercial bail bondsmen in 1976 and implemented Pretrial Services agencies on a statewide basis. Pretrial Services staff conducts thorough criminal history checks and utilizes a validated risk assessment (PSA-CT) that measures flight risk and anticipated conduct to make appropriate recommendations to the court for pretrial release. An Administrative Release Protocol was approved in 2017 for defendants charged with a delineated list of offenses. The Public Safety and Offender Accountability Act, enacted in 2011, incorporated several provisions related to bail including conditions for determining the amount of bail, i.e. requiring a single amount of bail for multiple misdemeanors not to exceed the amount of fine and court costs of one of the highest misdemeanor charges. It also

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required the court to order unsecured bond or ROR for low risk defendants and, if medium risk, it required the court to release, but consider GPS, drug testing, supervision, and credit of $100/day toward bail for each day or portion of day served in jail. The legislation permitted judicial discretion to determine if an individual poses a flight risk or danger as an exception to bail provisions and required the court to document reasons for denying release based on these provisions. During the 2017 session of the Kentucky General Assembly, the Governor's Criminal Justice Policy Assessment Council (CJPAC) sponsored a comprehensive criminal justice reform bill (SB 120) that initially incorporated language supporting the elimination of money bail. Although the language was ultimately removed from the bill, it would have allowed money bail only for high risk defendants who had not been charged with a violent or sexual offense and who posed a risk of flight or failure to appear. The measure also required detention hearings for all high risk defendants and for all low/medium risk defendants charged with violent/sexual offenses. In a presentation to the Jail Policy Committee in September 2015, B. Scott West, General Counsel, Kentucky Department of Public Advocacy, summarized prevailing law in Kentucky, which provides that money bail cannot be used to punish or detain. Money bail can be used only to ensure reasonable appearance at trial, and only in an amount "sufficient" to do so. At present, there are no standards to demonstrate how the amount of money bail relates to reappearance or safety to the community. If bail is set so high as to be prohibitory, the result is a denial of bail. Mr. West offered recommendations to eliminate the use of money bail; use evidence-based, statistically valid, objective pretrial risk assessments to guide release decisions; and pass a Constitutional Amendment which allows detention for high-risk defendants which passes state and federal Due Process requirements. Use of Non-financial Conditions of Release in Jefferson County Based on the percentage of non-financial releases from January 1, 2017, through December 31, 2017, Jefferson County ranks #10 statewide in the use of non-financial conditions of release (82.48 percent). The following chart depicts the annual release percentage for Jefferson County from 2010-2017:

Calendar Year Non-Financial Release % 2010 65% 2011 74% 2012 72% 2013 77% 2014 78% 2015 74% 2016 76% 2017 82%

A non-financial release is defined as a release from jail without paying money – ROR, Unsecured or Third Party Signature. In Jefferson County, 95.3 percent of non-financial releases are on ROR. There are some unsecured releases, but the number is small.

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In 2017, 82 percent were granted a non-financial release and 18 percent were released on a monetary bail amount. A breakdown of the PSA risk levels for those in-custody on September 13, 2017, includes the following:

PSA-CT Risk Level #Defendants Low 423

Moderate 1,269 High 786

It is not possible to determine the exact number held only on a monetary bond since some defendants may have holds or may be serving a sentence on another case. Pretrial Services took a data snapshot of in-custody defendants on three different dates in the fall of 2014 and identified that approximately 16 percent had holds. Based on that review, it was estimated that 19,360 defendants were held in jail until disposition on a monetary bond. REFERENCES Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail. (September 2012). Justice Policy Institute. Brooker, C.M., Jones, M.R., and Schnacke, T.R. (June 2014). The Jefferson County Bail Project: Impact Study Found Better Cost Effectiveness for Unsecured Recognizance Bonds over Cash and Surety Bonds. Washington, D.C.: Pretrial Justice Institute. "Cash Bail's Lonely Defender." New York Times, Editorial Board, August 25, 2017. Clark, J. "The Impact of Money Bail on Jail Bed Usage." American Jails, July/August 2010. Holder, E. Attorney General Speech at National Symposium on Pretrial Justice, June 1, 2011. Jones, M.R. (2013). Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option. Washington, D.C.: Pretrial Justice Institute. Lartey, J. "New Legislation Encourages States to End Discriminatory 'Money Bail' Practice." The Guardian, July 20, 2017. Lowencamp, C.T., VanNostrand, M. and Holsinger, A. (2013). Investigating the Impact of Pretrial Detention on Sentencing Outcomes. Houston: Laura and John Arnold Foundation. Lowenkamp, C.T., VanNostrand, M. and Holsinger, A. (November 2013). The Hidden Costs of Pretrial Detention. Houston: Laura and John Arnold Foundation. Ortiz, N. (July 2015). County Jails at a Crossroads. National Association of Counties.

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Rabuy, B. and Kopf, D. (July 2015). Prisons of Poverty: Uncovering the Pre-Incarceration Incomes of the Imprisoned. Prison Policy Initiative. Rational and Transparent Bail Decision Making: Moving From a Cash-Based to a Risk-Based Process. (March 2012). Washington, D.C. Pretrial Justice Institute. Responses to Claims about Money Bail for Criminal Justice Decision-Makers. (Updated August 2010). Washington, D.C.: Pretrial Justice Institute. Schnacke, T. (September 2014). Money as a Criminal Justice Stakeholder: The Judge's Decision to Release or Detain a Defendant Pretrial. National Institute of Corrections. Subramanian, R., Delaney, R., Roberts, S., Fishman, N. and McGarry P. (February 2015). Incarceration's Front Door: The Misuse of Jails in America. Vera Institute of Justice, Center on Sentencing and Corrections. VanNostrand, M. and Keebler, G. Pretrial Risk Assessment in the Federal Court. Washington, D.C.: Office of the Federal Detention Trustee.

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