An Inside Take on Kentucky’s Cash Bail Problem

June 18, 2018

Mikayla Hellwich: You spent many years prosecuting cases in federal court. What was your experience with bail bonds there?

Former Prosecutor David Grise: Because my career as a prosecutor was spent in federal courts, I practiced in a system in which a court was required to either place a defendant on a bond that the court knew the defendant could post, release the defendant without requiring the actual posting of a bond, or detain the defendant without bond. Decisions were made based on an assessment by the U.S. Probation Office, and any evidence the parties wished to present. This system ensured that no one was detained merely because they were financially unable to post a bond.

Unfortunately, that’s not fully the case in Kentucky state courts.

What’s the situation in Kentucky?

Thankfully, Kentucky eliminated private bail bond finance companies many years ago. So we’ve avoided many abuses there. Unfortunately, Kentucky courts still use money or property bonds frequently. Many of those bonds are imposed in misdemeanor or low-level felony cases. As a result, our jails are crowded with un-convicted defendants awaiting trial for relatively minor crimes.

But don’t some defendants need to be detained prior to trial?

Of course. When there is a significant risk of the defendant fleeing, instead of appearing at trial, or if the defendant is a danger to the community, they should be detained. But many defendants charged with low level, non-violent offenses pose little to no danger to the community and are unlikely to flee to avoid the likely low sentences imposed for their crimes. There is really no reason for their detention, other than the fact that they are poor, and therefore can’t afford to post the required bond. Many of these defendants are eligible for probation at sentencing, so the primary impact of keeping them in jail prior to trial is both an unnecessary expense to taxpayers and a disruption in lives and family relationships. Perversely, pretrial detention also often results in loss of the employment a defendant needs to make restitution to victims of their crimes.

So where do we see this play out?

Let me give you an example. Let’s say a homeless person is arrested on a drug possession charge — her first offense. The bond is set at $500, but the defendant can’t even pay that, so she goes to jail to await trial. Her time waiting for trial ends up being longer than her sentence is likely to be. When she appears in court to schedule her trial, she is informed that if she pleads guilty, the prosecutor will recommend she be sentenced to only the time she has already served, meaning that she can be released immediately. If she chooses to go to trial, she must go back to jail to wait for trial. What do you think her choice is going to be?

But doesn’t this risk that she might plead guilty even if she isn’t — to get out of jail faster?

Exactly. This is one of the really troubling aspects of imposing money bonds on those with limited resources. Are we compelling innocent defendants to plead guilty?

Some proponents of bail reform state that defendants who are detained for failure to pay a money bond are also more likely to be sentenced to jail and, if they are, get more jail time. Is that what you’ve seen?

I’ve heard those arguments, and, statistically, they are correct. I wonder, though, if they are the result of judges sentencing defendants to “time served.” A judge will almost always sentence a defendant to jail time, even if that defendant has already served the time. So, many defendants aren’t really getting higher sentences at sentencing, they are, in reality, getting harsher sentences before sentencing.

Is Kentucky doing anything about this?

Yes. Our state Justice Secretary chairs a group of professionals tasked with making criminal justice reform proposals to our General Assembly. A wide range of criminal justice and civic organizations advise the group — everyone from victims’ advocates to religious groups. As a result, last December, legislation was introduced proposing broad criminal justice reforms, most of which were designed to reduce our alarmingly high incarceration rate. The proposal included provisions such as increasing addiction treatment options, raising the misdemeanor/felony threshold, reducing simple drug possession charges to misdemeanors, increasing the use of home incarceration, eliminating unnecessary parole hearings, requiring training on victims’ rights, ensuring that defendants aren’t jailed for failure to pay costs and fines if they are indigent, and, of course, reforming the money bail system.

Wow, that’s a lot in one piece of legislation.

Yes, perhaps too much. The bill was not passed; it died in committee. A whole lot of people found something in the bill they objected to. Maybe the legislators introducing the bill will reintroduce it in the next session in several different bills, instead of wrapping all of the reforms into one proposal.

The bail reform proposal would have reduced our reliance on money bonds, creating a presumption of release without bond in most cases, but with conditions monitored by pretrial services officers. I’m glad to say that all of Kentucky’s 120 counties are already presenting judges with objective pretrial release assessments to assist them in making their decisions. We need to increase our reliance on the assessments and decrease our reliance on money bonds. There’s really not much evidence that money bonds effectively increase court attendance or protect the public, anyway.

So, in sum, you’re saying that the issue of money bonds is an issue related to further disadvantaging impoverished defendants?

It’s not just that. Let’s look at the other end of the spectrum. Why should a wealthy, violent offender or a recalcitrant con artist who are dangers to the public be released pretrial merely because they are able to put up a large bond amount? The wealthy are the ones with resources that enable them to effectively flee the country, and a high bond won’t dissuade violent offenders who can’t or won’t control their rage.

I spent most of my career prosecuting white-collar criminals, and I learned the hard way that posting a bond and owning property doesn’t ensure that a criminal will show up as required or stop scamming the public. Some defendants need to be detained, regardless of their ability to post a large money bond.

Let’s circle back to pretrial release. What other issues does LEAP focus on in your state?

Kentucky has a terrible opioid addiction problem. Law enforcement has learned that we can’t arrest our way out of this crisis. On the other hand, police officers are often the first ones to deal with situations related to the crisis. We expect a lot from our law enforcement officers, and, once again, we must ask them to “step up” by playing an increasing role in addressing the mental and physical health aspects of opioid addiction.

Some Kentucky jurisdictions are just now experimenting with LEAD (Law Enforcement Assisted Diversion), which gives officers discretion to send people addicted to drugs into treatment rather than jail. An increasing number of jurisdictions have “angel programs,” which allow drug users to present themselves to the police for referral to treatment programs, without the fear of getting arrested for possession of illegal drugs. We also have an increasing number of needle exchange programs, which provide many thousands of sanitary syringes to drug users who would otherwise risk their own health or the health of others.

LEAP is one of many organizations advancing these programs, and our influence is magnified when we combine with other like-minded groups. One such umbrella organization here is Kentucky Smart on Crime, which supports common sense and evidence based criminal justice reform, which can increase public safety, reduce unnecessary incarceration, and save taxpayer money at the same time.

Assistant U.S. Attorney David Grise (Fmr.) of the Eastern District of Kentucky spent more than 30 years as a prosecutor, instructor, and administrator with the Department of Justice. He’s an expert in cash bail, the private prison industry, mandatory minimum sentences, and indigent defense. He now uses his expertise to advance public safety solutions as a representative of the Law Enforcement Action Partnership (LEAP).

Mikayla Hellwich is the Media Relations & Speakers Bureau Director at LEAP.