‘Disparate Justice’ Study Calls For Cash Bail Reform

At 3 p.m. on June 12, there were 55 people in Jefferson County jail who couldn’t afford their bail, with little hope of getting out until they either pleaded guilty or went to trial.

By the next morning, however, they were all free.

Their bails were posted by the Louisville office of The Bail Project, which has been helping those who can’t afford to do so since last year.

These 55 people would have been among the 74% of Jefferson County defendants who couldn’t pay their bail in 2018, according to a new study that examined data from the Kentucky’s Administrative Office of the Courts. By comparison, only 1% of defendants in Hopkins County could not post bail.

The June 11 study from the Kentucky Center for Economic Policy found that cash bail is keeping poor people jailed across Kentucky and, perhaps more disturbing — it is being applied unevenly across counties.

That conclusion, critics say, is another reason the system must be changed.

“I see these numbers in action,” said Shameka Parrish-Wright, the site manager for the Bail Project Louisville, which has worked in five counties in addition to Jefferson County. “I see two people charged with the same offense and getting two entirely different bails or not even getting a bail set.”

According to the Kentucky Center, “The penalty for being poor for a person arrested in one county could be substantially greater than a person arrested across county lines for the same offense.” The Berea think tank focuses on policy issues affecting low- and moderate-income Kentuckians.

Another example of disparate enforcement is that 53% of defendants in Jefferson County were released on non-financial conditions, such as being released on unsecured bonds or their own recognizance. That number put Jefferson County high in the rankings — tied for 12th out of 120 counties for the most people released without bail, the study says. In McCracken County, just 5% of defendants were released under non-financial conditions, the least in the state. Martin County let the most defendants go without bail, at 68%.

Twenty six percent of defendants in Jefferson County could afford bail, placing it near the bottom of the rankings, tied for 111th in the state. Hopkins County had the highest percentage of people who could afford their bail, while in Wolfe County, only 17% of defendants in jail on bail could afford to pay it.

Tara Blair, executive officer for Kentucky Pretrial Services, said Jefferson County lets more inmates go without posting bail than other places in Kentucky because the various parts of its local justice system cooperate.

“The judges especially, at the district court level — they have tried really hard, and they work really hard to be able to release everybody they possibly can quickly,” she said. “So, we have seen in Jefferson in the last three years, an increase in non-financial release.”

As for why so few people in the county can afford their bail, Blair said, the bail amounts are often high. The average bail is set at $12,778 in Jefferson County, according to data from the Administrative Office of the Courts provided to LEO in January.

“If you don’t have the money, $55 might as well be a million,” she said.

Bail practices differ from county to county in Kentucky, because the culture varies from area to area, Blair said.

And ultimately, the judges assigning bail are elected officials.

“There’s rules. There’s court rules. There’s statutes,” Blair said. “But at the end of the day, judges pretty much work for the voters that elected them.”

She believes that bail reform and, in general, criminal justice reform are needed. The Kentucky Center’s study pointed out that in Washington, D.C., where 90% of defendants are released without bail, 90% of them in 2015 came back to court for further proceedings, and 91% of them did not reoffend before their case was decided.

State Sen. Whitney Westerfield, a Republican from Crofton and a proponent of bail reform, called Kentucky bail disparities “justice by geography.”

“I know that we’re holding people pretrial, we’re holding a lot of them, and most of them — not all of them — but most of them are not dangerous or risks to the public,” he said.

Westerfield, chair of the Senate Judiciary Committee, said the likelihood of his colleagues passing bail reform is low. “They hear the same argument year after year after year,” he said.

They’re experiencing “reform fatigue,” he said.

In the last legislative session, state Rep. John Blanton, a Salyersville Republican, proposed a bail reform bill, but it never made it out of committee.

A group of circuit court judges and the ACLU had opposed the bill. Westerfield and Blair had problems with it, too.

Blair disliked the bill because it would have based the detention of defendants on the results of a pretrial risk assessment. The assessment measures a variety of factors, including where a defendant lives and whether they have a job, to determine whether they’re a risk for re-offending or not returning to court.

Sometimes, Blair said, that risk assessment can assign a high risk to a low-level defendant and a low one to a high-level defendant.

“So, to say a judge shall detain a high-risk person on a tool, that’s not good policy, and that’s not good law,” she said. •