SUNDAY EDITION | Paying while innocent: Is Kentucky wrongly char - WDRB 41 Louisville News

SUNDAY EDITION | Paying while innocent: Is Kentucky wrongly charging inmates before they’re found guilty?

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LOUISVILLE, Ky. (WDRB) –After David Jones was released from the Clark County, Ky., jail in December 2015, he received a bill for $4,000 to cover the cost of the 14 months he spent behind bars waiting for his case to go to trial.

Even though all charges against Jones were dismissed, eliminating the need for a trial, his jail “booking fee” and daily charges were not.

For most of the past two decades, jailers across Kentucky have followed suit.

State officials say a 2000 law lets jails take money from inmates when they arrive or seize funds they receive while incarcerated for an initial booking fee and daily pay-to-stay charge of up to $50 per day.

And the jails can keep that money, and bill inmates for the rest, regardless of whether that person is eventually found guilty.

But the law was intended to work otherwise, according to a WDRB News analysis of the legislation and interviews with lawmakers who crafted the bill, which sailed through the Kentucky General Assembly.

Defense attorneys, inmates’ advocates and civil rights activists have for years argued that Kentucky jailers are violating due process and other constitutional rights by improperly taking money from inmates before a conviction.

“I don’t understand what authority (jailers have) to take any money for housing a prisoner if not found guilty,” said former Kentucky Senate President David Williams, a Republican who helped shape the booking fee bill in 2000.

Before the bill passed, Williams added an amendment requiring the “sentencing court,” or judge, to determine how much an inmate owed in jail fees after the person had been convicted.

“Jails aren’t an executive branch agency,” said Williams, who is now a circuit court judge in southern Kentucky. “There is a constitutional issue for charging (jail fees to) someone who is innocent.”

Regardless of the intent, Kentucky courts have consistently upheld challenges to the jail fee law and the way jailers are using it. And about half of Kentucky jails use a collection agency to go after inmates who owe fees.

Now, however, attorney Greg Belzley and others fighting against the fees have a powerful new ally:  A U.S. Supreme Court opinion from April that ruled Colorado was wrong for not automatically returning fees to inmates not convicted.

“Colorado may not presume a person, adjudged of no crime, nonetheless guilty enough for monetary exactions,” the high court ruled.

On behalf of Jones and other inmates, Belzley has filed a class action lawsuit, arguing, in part, that the U.S. Supreme Court’s Colorado opinion takes precedent over previous rulings in Kentucky.

“This is a clear violation, not only of constitutional principles, but the state law, the unambiguous state law,” Belzley said.

The result of the suit, Belzley said, could not only affect how Kentucky jails charge inmates in the future, but prompt thousands of former inmates to try and get reimbursed for money taken illegally.

“It’s not only that the jail has no right to seize anything from you until they are authorized by a sentencing court, it’s that when they have done it in the past … they owe the money back,” he said. “There’s a lot of money that’s owed back.”

Inmates in Kentucky have paid millions of dollars in booking fees and daily charges since the law went into effect.

“I can’t even estimate how many fees in the last 17 years that have been collected under the assumption that it is very much legal,” said Oldham County Jailer Mike Simpson, the immediate past president of the Kentucky Jailers Association. “If that’s something we should not be doing, we will look into it.”

Law not used as intended

The intention of Kentucky’s jail fees law was not to take money from inmates before conviction.

When then-Sen. David Boswell introduced the bill in the Senate budget committee on March 7, 2000 – allowing local governments to take the money -  some legislators immediately questioned how it would apply to people who were not convicted of a crime.

What about an inmate who was indigent, or couldn’t afford to pay?

One Senator said it would be unfair to charge inmates to stay in jail if they had not been convicted, and asked about reimbursements, according to an audio recording of the hearing.

Another said there were constitutional issues with seizing money from someone if they had not been found guilty.

As a condition to moving the bill out of the committee, Senators agreed to amend it on the Senate floor to address the concerns.

And Williams added specific language to “require the sentencing court, rather than allow the county, to order reimbursement” to jails, according to a review of the bill’s history.

“That amendment passed,” Boswell, a Democrat, said in an interview last week, agreeing that judges are supposed to be deciding whether inmates should owe booking and daily jail fees. “It seems the law has not been enforced to the letter.”

And jailer Simpson, who is the current vice president of the jailer’s association, acknowledged that is not the way the law was implemented.

“I can assure you the jailers in Kentucky are collecting those fees prior to people being convicted,” he said in an interview last week.

Some jails, such as in Oldham County, do allow inmates who are not convicted to seek refunds, though it is not always in easy process.

In Jefferson County, where the jail charges a $35 booking fee, inmates must write a letter to Director Mark Bolton and include proof the criminal case was dismissed. Jail officials did not provide statistics on how often inmates request a reimbursement of their fees.

Previously, the local jail estimated it would make about $300,000 a year from the fees, though officials did not provide updated numbers.

Jail spokesman Steve Durham denied Metro Corrections was doing anything wrong by taking money from inmates when they arrived, before a guilty finding.

Regardless of the law’s intent, courts have upheld how jailers are using it.

The Kentucky Court of Appeals ruled in November 2015 that the language of the state law is “unambiguous, and seems clearly intended to provide a means for county jails to automatically deduct required fees when the inmate has the funds available.“

The state Supreme Court has declined to look at the issue.

Belzley contends that courts are applying just one part of the law that says jails can automatically deduct or take funds from an inmate. He says that section of the law refers only to inmates who return to jail with an unpaid balance after a sentencing judge has already determined they owe fees.

“I’ve never understood why nobody in charge of a jail, nobody on a fiscal court, has ever stopped and said ‘wait a minute, aren’t these people entitled to a presumption of innocence? Can we really do this?’” Belzley said. “Why has nobody thought about this?”

In response to his lawsuit, attorneys representing Clark County officials argued, in part, that the jail is following the state law which has been upheld by other Kentucky judges.

But Belzley said some justices in the U.S. Supreme Court case out of Colorado case hinted that jails shouldn’t take money from people prior to conviction, and he will use this ruling in the Clark County case to bolster his arguments that Kentucky courts have been wrong in previous rulings.

“Any jailer who has been taking money from someone, and keeping it, that hasn’t been found guilty of committing an offense has violated (the state) statute and violated their constitutional rights and we are going to stay after this until we prove it,” he said.

In the Supreme Court opinion, written by Justice Ruth Bader Ginsburg, the court ruled that a person is presumed innocent until found guilty and taking their funds violates the 14th amendment.

“Absent conviction of a crime,” she wrote. “One is presumed innocent.”

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