LOUISVILLE, Ky. (WDRB) -- For two decades, Kentucky jailers have taken money for booking fees and up to $50 in daily charges from inmates who must pay to stay behind bars.
The jails often keep the funds even if someone is found not guilty or the charges are dropped.
This practice goes directly against the intent of a law passed in 2000 meant to let a judge decide once a case ended if a person could afford to pay jail fees and how much is owed, according to a WDRB News analysis of the legislation.
But Kentucky courts have thus far upheld challenges to the jail fee law and the way jailers use it, rebuffing defense attorneys, inmates' advocates and even the legislator who wrote the law – all of whom say the keeping of the funds violates due process and other constitutional rights.
Now, the Kentucky Appeals Court will decide whether the practice is legal and perhaps bring to an end or at least alter a law that has been a key money maker for cash-strapped jails. A ruling is expected within 45 days.
"It's an important issue; all 120 counties are faced with this issue every day," Kentucky Appeals Court Judge Jeff Taylor said during arguments in Jefferson County on Wednesday.
Almost every state allows inmates to be charged room and board fees. Kentucky has made millions of dollars since the law went into effect; about half of Kentucky jails use a collection agency to go after inmates who owe fees.
The case in front of the appeals court centers on the 2013 arrest of David Jones in Clark County near Lexington.
Jones was jailed for 14 months as he waited his trial, paying an initial $35 booking fee and then $10 a day. While he paid more than $250, the jail billed him about $4,000 he owed for his stay after the charges were dismissed, prompting the lawsuit that has slowly wound its way to the appellate court.
"If you are arrested on a charge and taken to jail and the jail can clean your wallet out and keep the money regardless ... of whether the charges are dismissed or you are acquitted, that just completely disregards the presumption of innocence," Jones' attorney, Greg Belzley, argued in court Wednesday. "We're balancing jail budgets on the backs of our most helpless and impoverished citizens. This has got to stop."
Jails take money when an inmate arrives and from a commissary account often funded by friends or family. In Warren County, jailers for years took social security checks from inmates, Belzley told the court. And although some jails return the funds if the charges are dropped, many do not.
Belzley also pointed out that before the bill passed the Kentucky General Assembly in 2000, legislators successfully added an amendment requiring the "sentencing court," or judge, to determine how much an inmate owed in jail fees after a conviction.
When the bill was proposed, legislators raised concerns about inmates who couldn't afford the fees, as well as constitutional issues with seizing money from someone who hadn't yet been convicted or had charges dropped, according to audio recordings of hearings at the time.
As a condition to moving the bill forward, legislators agreed to amend it on the Senate floor to address those concerns, adding 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.
The author of the bill, former Kentucky Senate President David Williams, now a judge, previously told WDRB he couldn't "understand what authority (jailers have) to take any money for housing a prisoner if not found guilty."
And the appeals court panel seized on this language in the bill on Wednesday.
"The language in the statute -- how do you get around that?" Judge Sara Combs asked an attorney for the Clark County jail.
The "literal interpretation" of the law would make it mandatory for the judge to assess the amount of fees owed, Judge Taylor said.
But attorney Jeffrey Mando, who is representing Clark County and the jailer, told the judges there are multiple ways for the fees to be collected, as allowed in the law, including by a judge or jailer.
"The mere fact that a statute authorizes one entity to take an action does not deprive another entity from taking the same or similar action," Mando argued in a court motion.
And he said that arguments about the language in the bill and its constitutionality have already been debated by other Kentucky judges and "rejected," giving jailers the authority to take these fees as reimbursement for inmate expenses, whether the person was eventually convicted or not.
An appellate court ruling in a 2012 case ruled that the language of the state law "unambiguously permits" jailers to take inmate property or money from "canteen accounts" without an order from a judge.
The state Supreme Court has thus far declined to review the issue.
Asked by Appeals Court Judge Allison Jones specifically who would decide, if not the sentencing judge, whether a person could afford to pay the fees and exactly how much, Mando said the jailer and fiscal court members would be responsible for deciding the rate for an inmate.
And Mando said there is nothing in the state law requiring jails to refund the money if charges are dismissed against a person. Those people are still technically "prisoners" that have to be taken care of, he said.
"When folks are brought into the jails, it's not the jailers' decision to determine guilt or innocence," he said. "We have to house them, we have to provide for their medical needs, we have to feed them ... and the courts have upheld the fact that we can secure partial reimbursement."
But Belzley said that even if jailers are allowed to take booking fees and daily charges from inmates, it is unconstitutional to keep the money if a person is not convicted. He said the previous court rulings on the state law are "wrong and we're asking this court to straighten that out."
Belzley contends that previous 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.
"This statute is unambiguous," Belzley later told reporters. "It's clear that taking this kind of money from someone is a penalty, it's a punishment and only a judge should be making that decision. …
"It's bedrock in this country: You don't pay for a crime you didn't commit."
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