SUNDAY EDITION | Cash bail system traps the poor in jail, reform - WDRB 41 Louisville News

SUNDAY EDITION | Cash bail system traps the poor in jail, reformers say

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LOUISVILLE, Ky., (WDRB) – In Kentucky, some people who are arrested and brought to jail get released within a day or two, while others stay behind bars for weeks or months.

Often, the difference between those who get out of jail and those who remain stuck there has little to do with the underlying charges, and more to do with the defendant’s ability to come up with $500 or $1,000 to post a bond securing his or her release.

Cash bonds have been a staple of the state’s criminal justice system for decades, but a bipartisan movement to reform the practice has been gaining steam.

“In many, many ways, it’s discriminatory,” said Jefferson District Court Judge David Bowles -- one of the judges charged with setting bonds for criminal defendants in Louisville -- at a recent Louisville Bar Association forum.

Bowles is among critics who say bonds unfairly affect the poor and contribute to the state’s problem with mass incarceration. He added that the practice is “disparately applied,” as some judges are more strict than others about letting defendants out of jail.

Whether bail is allowed, and at what price, simply depends on which judge is assigned to the case.  

Bowles is an example of how the reform movement is winning over converts. A former Louisville police officer, he is an unlikely advocate for letting more alleged criminals out on the streets.

“I came to the conclusion that … cash bail is not a good thing,” he said at the bar association forum on Feb. 21. “We can advocate for changes under the law and this is going to be my thing. I want people to have this conversation.”

He is not the only one. Many judges, jailers, prosecutors and state lawmakers have lined up behind so-called “no bail bond” bills filed in the Kentucky General Assembly.

The bills – one of which is in the state House, and the other in the Senate – would require most non-violent, non-sexual offenders to be released without having to pay a cash bond.

Those charged with more serious offenses would be held up to 48 hours until a hearing to decide what bond, if any, is needed.

“Right now, you can have two people charged with the exact same crime and one gets out of jail because they can afford” to pay, said Sen. Julie Raque Adams, R-Louisville, who sponsored the Senate bill. “It’s truly based on financial means and nothing else. How do you level the playing field?”

But not everyone is convinced that the system needs to change. In fact, Adams acknowledged her efforts in the Senate will not succeed in the current legislative session that wraps up in April.

“It should be at the discretion of the judge whether to impose a cash bond or not,” said state Sen. John Schikel, R-Boone County, who opposes the reform efforts.  “We shouldn’t be mandating from Frankfort who judges should be releasing.”

Nicolai Jilek, president of Louisville Fraternal Order of Police – the union representing the Louisville Metro Police Department – said the movement might really be about saving government money by letting more defendants out, rather than figuring out how to appropriately fund jails.

He worries about “an erosion of public safety” if criminal defendants are let out too soon, with no money pledged to secure their return to court to face the charges.

“I don’t want there to be efforts in the name of criminal justice reform that are really truly there to keep people out of jail just because we can’t afford to have people in jail,” Jilek said in an interview. “… The people that (would) suffer there are the people who live here in Louisville and in Kentucky, the people that would potentially be future crime victims.”

Kentucky out of jail space

While popular in some other states, this is the first time Kentucky has considered abolishing cash bail for a majority of defendants.

The theory behind the bills is that bond is not supposed to be a punishment, but a way to protect people from those deemed potentially dangerous and guarantee defendants show up for court. And studies have shown that bonds are not effective in deterring crime.

The percentage of people who are released without a cash bail showing up for court appearances are “almost identical” as those who must pay a monetary bond to get out, said Jefferson Commonwealth’s Attorney Tom Wine.  And the percentage of people who commit offenses while out are also about the same for both groups, he added.

“I support the proposition that people charged with a criminal offense should not be held in jail because they don’t have money to post bond,” Wine said in an interview, noting that 80 percent of the people in Metro Corrections are being held prior to their trial, often because they can’t afford bond.

Washington, D.C., has had similar laws regarding bond for decades, releasing 92 percent of people arrested without bail. Of those, about 90 percent are not charged with a new crime while awaiting trial.

 “I think the country is moving toward the elimination of cash bail; that’s where we’re headed,” said Thomas Harvey, director of The Bail Project, a national non-profit organization dedicated to bail reform. “If we can demonstrate the fallacy that a little bit of money is going to get you to come back to court … that would be an incredible starting point.”

In Kentucky, 66 percent of defendants are released without bond.

“At the end of the day in our system, if you have the money you walk out of jail,” Jay Lambert, with the Louisville Public Defender’s office said at the forum last week.  “It tends to impact people of color more and disadvantaged communities more.”

The Bureau of Justice Statistics says six in 10 adults in U.S. jails have not been convicted of a crime, but are locked up – sometimes for months or even years - awaiting trial, often because they cannot afford bail.

The issue is timely in Kentucky because jails and prisons are dangerously overcrowded.

Kentucky could be out of jail and prison space by May 2019 “and we may be out of space prior to that,” John Tilley, Secretary of the Justice and Public Safety Cabinet, told legislators this week.

The state had to pay to open one private prison already this month and will fund two more, at a cost of more than $70 million every two years. “We are out of beds in Kentucky," Rep. Jason Nemes told legislators this week. "We have a deep need for criminal justice reform in this commonwealth."

Controversy in Louisville

Because many people can’t afford to pay a cash bail, they simply plead guilty as soon as possible to get out of jail, defense attorneys say.  And whether a person is given a cash bond or simply released on his own recognizance is often just a matter of chance in Kentucky, depending on which judge hears the case.

“Presumption of innocence is seen as a theory versus a practice for some judges,” defense attorney Lambert said. “Justice is assigned by which judge you are in front of.”

Louisville has been trying combat this issue and jail overcrowding in various ways over the last few years.

Recently, in an effort to ensure more uniformity in setting bonds, one judge has been assigned to handle arraignments in Jefferson District Court. 

While that move has been successful in lowering jail population, it has caused much controversy and debate over some of the defendants released -- and the fact that some are accused of committed more crimes while out.  

In August, for example, the new arraignment court judge, Sean Delahanty, released Deandre Williams on home incarceration, even though Williams had admitted he shot and killed a man.

Louisville Metro Police Chief Steve Conrad said police were “astonished and incredibly disappointed.”

Delahanty expressed frustration on what he considered the lack of detail on Williams' arrest report and said Williams was a low risk to fail to appear or re-offend. After Williams was indicted, a circuit court judge raised Williams' bail to $100,000 cash and he is lodged in Metro Corrections. 

In January, Delahanty released Brenda Porter on home incarceration after she was accused in the murder of a man whose body was found in a backyard near Assumption High School – a crime she allegedly confessed to. Porter is also back in custody after a circuit court judge put her on a high cash bond following an indictment.

These, and other controversial releases, prompted Jilek, the FOP president, to publicly call for someone to run against Delahanty for reelection next year. (Two attorneys filed to replace Delahanty.)

“Most folks would expect that  … if a drug dealer is arrested, the expectation is the drug dealer goes to jail and is not just turned back out to go home,” Jilek said. “As a society and a democracy we need to find out where our standards are.”

And Jilek said releasing someone charged with murder – often putting police officers in danger- is “extreme” and “not what society expects.

“If a murderer is released immediately after being arrested, why would anybody be in jail?” he asked.  “It’s a confusing message” to police and the public.

One of Delahanty’s main goals, working in conjunction with Metro Corrections, was to close an illegal jail built in the 1950s that was being utilized because of overcrowding at the main jail facility.

Though deemed unsafe by state officials -- it lacks fire safety systems and has failed to meet state certification requirements for decades -- the former jail above Louisville Metro Police headquarters had been used steadily the last few years.

“We’ll put people in hallways, we’ll put people in gyms, we’ll put people in the old jail, we’ll stack them up like cordwood,” said Steve Durham, a spokesman for Metro Corrections. “We’re not going to turn anybody away. … But at some point, these old structures will fall apart. … You’re going to have to think about building a bigger jail.”

Each bed in a new downtown jail would cost an estimated $130,000 to $160,000, Durham said, meaning building a correctional facility would cost about $350 million, or the same as the Omni Hotel.

 “That’s another reason to have a discussion about changes in incarceration rates,” Durham said.

Currently, Delahanty said, home incarceration is the safest way to release a defendant and maintain control over them, noting that global positioning system technology can track a defendant's location at all times, within a few feet.

When he took over arraignment court, the number of people released on home incarceration jumped from 399 in July 2017 to 616 in August, according to records from Metro Corrections.

The number of defendants on HIP is about 750 right now and Delahanty said he has told jail officials to plan for about 1,000 home incarceration releases.

The releases allowed Metro Corrections to close the old jail on Jan. 11, saving the county $350,000 a month, he said. 

“For me there is a political consequence, I do get some hysteria with regard to some of my bonds,” he said. “But I believe I played a part in saving this county $4 million a year.”

There were still about 1,975 inmates in the main facility as of last week.

Inmate capacity at Metro Corrections is 1,793, including 370 beds in the Hall of Justice at Sixth and Jefferson streets and 440 beds at the Community Corrections Center, a minimum-security facility on East Chestnut Street.

Metro Corrections Director Mark Bolton does not open up the old jail until jail population tops 2,050 for three straight days.

“We are making strides,” Delahanty said.

Kentucky has long been seen as a bail model for other states, as defendants undergo a risk assessment – including their criminal history, ability to pay and seriousness of the charges - that helps judges decide on a bond. 

In both the Porter and Williams cases, Delahanty said, the risk assessment recommended both were low risk.

“Neither one of them had much of a criminal record if any at all,” he said. “Should I hold them in jail as punishment more than anything? … Or should I honor my obligations under the law. They are presumed to be innocent. They are entitled to due process and it will play out” in court.

Delahanty referenced the murder case of Donald Hayes, a hot dog vendor who was charged with murder in an alleged road rage incident in 2016 but released before trial. He was found not guilty.

“Should he have spent six months in jail” before trial? Delahanty asked.

However, prosecutors have pointed out that one of the bond risk assessments is to take the seriousness of crime into account, which would call for a higher bail for someone charged with murder.

Delahanty said that factor contradicts the others included in the risk assessment and causes him some “confusion.”

Regardless, Delahanty said the closing of the old jail and falling incarceration numbers should make for fewer controversial releases.

“Perhaps some of my bonds will not be so offensive in the future because I have room to put people in jail,” he said, adding that he will rotate out of arraignment court in June.

The state has to do something, Delahanty added, saying the no bond bill would be a much more “equitable” approach. But he said he has little confidence it will pass this year.

And while the issue is not yet dead in Frankfort, Sen. Adams has conceded that her bill is dead and the issue is "very controversial."

“The thought (from some other lawmakers) was, ‘you shouldn’t have committed a crime and you wouldn’t be in jail,’” she said. “The reality is Kentucky has a space problem and so a lot of people felt the time was right to start discussing this concept, but  a lot of people aren’t  ready for it apparently.”

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