In August 2017, Governor Bevin convened a reinvestment working group within the Criminal Justice Policy Assessment Council (CJPAC). He charged the group with “develop[ing] fiscally-sound, data driven criminal justice policies that protect public safety, hold offenders accountable, reduce corrections populations, and safely reintegrate offenders back into a productive role in society.” On December 18th, 2017, the working group issued a report with its findings, along with 22 recommendations for reducing incarceration rates while increasing public safety. Among the working group’s discoveries was a “substantial growth in the use of monetary bail for low-risk defendants over the last five years…” In fact, this practice increased from 22 percent to 31 percent between 2012 and 2016. To what end?

To understand the connotations, one must first appreciate the purpose for pretrial detention, that being the mitigation of a defendant’s flight risk. In other words, if there is a credible risk that a specific defendant will not appear for trial or that they pose a danger to the community, then there is arguably a basis for detaining that defendant pending trial. What role does monetary bail play in mitigating against these risks? It really has no role. Monetary bail is a pretrial practice that has less to do with the risk of the defendant, as much as the financial condition of the defendant.  If you have the money, then you get to leave. No money? Then you stay in jail.  As my colleague, Marc Levin so aptly explained, pretrial detainees who cannot afford to pay bail “are innocent under the law, but in practice deprived of their liberty — jailed because they cannot afford the money bail set by a judge.”

The working group has proposed ways to, at the very least, reduce the monetary bail practice in Kentucky.  First, it calls for an increased utilization of Kentucky Administrative Release Program that exists within Kentucky’s Administrative Office of the Courts. The program functions “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.” However, the program is primarily used in misdemeanor cases. The courts should expand its application to low level, nonviolent Class D felonies. Expanding this program carries low risk but high reward. There is a 90 percent success rate amongst those defendants who are released; this includes those charged with a felony. This program would allow low risk Class D defendants to remain employed and reduces the financial burden on the jails, and ultimately the tax payers.

Second, where violent and sex offenses are concerned, the working group recommends that courts have the option to detain “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.” Moreover, it calls for “restricting the use of monetary bail to high-risk defendants charged with a nonviolent, nonsex offense,” and “developing appropriate conditions for the release of all low and moderate risk defendants.” In other words, bail should not be an option for violent offenders who pose a real public safety risk, and should only function as collateral for those with a high risk of flight.

The recommendations proffered by the working group are reasonable, and if enacted, will narrow the practice of money bail, so that it at least arguably serves some legitimate public interest.