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Being Right on Bail

| September 13, 2018

Across the country, lawmakers have undertaken a critical examination of their state’s pretrial justice system, particularly where cash bail is concerned.  Kentucky has led on this issue for decades, having kicked commercial bail to the curb in the 1970s and enacting a statewide pretrial risk-needs assessment requirement in 2014.

Even though many states still need to catch up to the strides that Kentucky has taken on bail reform, the Bluegrass State remains heavily reliant upon cash bail to determine the pretrial release of low-risk defendants. This has shown to be a detrimental reliance. Any debate concerning the use of bail in our criminal justice system must begin and end with an uncompromised deference to the constitutional rights and freedoms fundamental to our rule of law. Chief Justice John Minton, Jr. of the Kentucky Supreme Court recently engaged the topic of bail by noting that “we don’t need to lose sight of the number one, bedrock principle and that is the presumption of innocence operates in every case, so that presumption does not need to be lost.” Yet, relying on someone’s finances as the litmus test for their detention undercuts these most fundamental canons of justice.

A report published by the Pegasus Institute entitled “Reform Opportunities in Kentucky’s Bail System” highlights the consequence to Kentucky’s reliance on financial means to determine pretrial release. Pegasus cites data from the Kentucky Administrative Office of the Courts indicating that the 30 percent of defendants not charged with a violent or sex-related crime had cash bail imposed as a condition of release and were subsequently unable to pay. What’s more, 70 percent of those defendants were assessed as low or moderate risk.

Unnecessary detention of these lower-risk defendants can also be counterproductive to public safety. As Pegasus noted, “compared to individuals released within 24 hours of arrest, low-risk defendants held 2-3 days were 17 percent more likely to commit another crime within two years.” Moreover, “detention periods of 4-7 days yielded a 35 percent increase in re-offense rates,” and “defendants held for 8-14 days were 51 percent more likely to recidivate than defendants who were detained less than 24 hours.”

While Kentucky must continue to wean itself from a pretrial system reliant upon financial means over risk, a complete abolition of cash bail may prove a bridge too far. As my colleague, Michael Haugen, aptly pointed out in his op-ed responding to actions recently taken in California, “Eliminating all financial bail reduces a court’s power to ensure [appearance in court] and removes a viable arrow from a judge’s quiver.” In other words, while cash bail does a poor job of predicting safety, it remains a valuable tool when a defendant’s risk assessment reveals a measurable risk of absconding. In such instances, a defendant in California will likely be detained pending their trial since they will no longer have the opportunity to utilize cash bail as a surety against the risk they might flee from justice.

Cash bail is certainly an area ripe for reform in Kentucky, Tennessee, and throughout our country. However, it is not smart to simply get rid of cash bail; we must be right on bail.

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JULIE WARREN is a graduate of Marshall University and of Regent University School of Law. She also attended Georgetown Law Center as a visiting student. While in law school, she clerked on the Senate Judiciary Committee. Julie served four years at the U.S. Department of Justice in Washington, D.C. After a few years in private practice as a civil defense litigator, Julie returned to public service and began her work in the Office of the West Virginia Attorney General where she primarily served as an appellate advocate for the State of West Virginia and as legislative counsel to the Attorney General.

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