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SUNDAY EDITION | Kentucky jails can't take fees from inmates without a judge's order. Some are still doing it.

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LOUISVILLE, Ky. (WDRB) – When the Kentucky Supreme Court ruled in October that state jails could no longer take booking fees and daily charges from inmates without a judge’s order, Boyd County Jailer William Hensley said he immediately spoke to defendants in his custody and waived their fees.

“I just got rid of all the fees for all the inmates,” he said in a recent interview. “I didn’t want to be responsible for someone’s money if a judge hadn’t ordered it taken.”

Before the ruling, Hensley was collecting a $50 booking fee upon booking and charging inmates another $50 each day -- a common and lucrative practice by jailers since a law passed in 2000. Jailers typically kept the money – or sent bills -- even if a person later had the charges dropped or were found not guilty.

But the high court ruled on Oct. 28 that it is unconstitutional for jailers to take money from inmates. Only a sentencing judge is “able to order the reimbursement and billing of incarceration fees, not the county jail,” the ruling said.

After telling inmates about the ruling, Hensley reached out to judges and prosecutors in his county to include language in the sentencing documents that allows judges to determine whether an inmate could afford to pay jail fees, and, if so, how much.

“Other jails are doing it different, but I just tried to err on the side of caution to make sure I wasn’t taking any money that wasn’t statutorily authorized,” he said.

While some jailers have followed suit, months later others still charge booking and/or daily fees to inmates without a judge’s order either because they haven’t heard about the ruling or are misinterpreting it.

For now, paying for your time behind bars depends on which jail you land in.

“There’s no uniformity across the state,” said Oldham County Jailer Mike Simpson, the immediate past president of the Kentucky Jailers Association. “We need to get this thing updated, get everyone on board and consistent. There’s a lot of confusion.”

The law passed in 2000 is constitutional but was used improperly by jailers, according to the Supreme Court’s ruling.

Campbell County Jailer Jim Daley, president of the state jailer’s association, said he has reached out to attorneys for his organization but has not yet heard back - and many jailers are still waiting for guidance.

“We have not discussed any conclusive decisions,” he said in an interview. “It’s up to each individual jailer right now.”

Sheila Gant, chief deputy of a facility that holds inmates from Bourbon, Nicholas, Harrison and Roberson counties, said officials are still taking a $40 booking fee, as they believe only the daily charges were addressed in the Supreme Court ruling.

In Allen County, a jail official said they were also still taking booking fees but then referred a reporter to County Attorney Hallye Arterburn. In an interview, Arterburn said, “I’m not in charge of what the jail does, so I don’t have any information for you.”

Louisville Metro Corrections stopped taking a $35 booking fee this week. Jail spokesman Steve Durham did not answer a question about the timing or whether people who have been paying fees without a judge’s order since October would get their money back.

Local jail officials previously estimated the booking fees generate about $300,000 per year. The jail has never taken daily fees.

A jail official for the Big Sandy Regional Center, which holds inmates from Johnson, Lawrence, Magoffin and Martin counties, said they had not heard of the Supreme Court’s ruling and were still taking booking and daily fees.

Attorney Greg Belzley, who argued the case before the Supreme Court on behalf of a man who was charged $4,000 for his incarceration after the case against him was dismissed, said jails across the state should have immediately stopped taking fees from inmates until the high court’s ruling could be correctly followed.

“Ignorance of the law is no excuse,” he said. “We’re more than 60 days past this decision. They need to get on the stick…. Wouldn’t you think a law enforcement agency, like the jail, would know what the law is? It’s outrageous.”

He also said the opinion is clear that both booking and jail fees cannot be kept by jailers without a judge’s order.

On October 29, the Kentucky Association of Counties, or KACo, sent a statewide email to county officials about the ruling, but didn’t specifically tell jailers what they should do.

“So what does this mean for your county jail?” the email read. “That is not completely clear.”

At the time, KACo said it was working with the jailers association to analyze the ruling and recommended that counties “consult with their county attorney and consider not charging prisoners” unless a judge ordered it.

KACo has not sent any further clarifying correspondence to jailers.

Daley, president of the state jailer’s association, said he has currently “paused” taking any fees from inmates, but believes there is a simple fix by requesting prosecutors and judges include the necessary language and order for the fees after an inmate is sentenced.

“I think if we want to charge the fees, we have some work to do, but that we will still be able to charge the fees,” he said. “We just have to follow the rules.”

And the funds collected, which differs widely from county to county, are an important source of revenue for some jails. The Lexington Herald-Leader reported last year that over a five-year period Kentucky jails billed nearly $21 million in booking and housing fees from inmates.

Graves County Jailer George Workman, who stopped taking all inmate fees after the high court ruling, said the loss of funds will “greatly impact money the jails have to operate.”

The case presented to the Supreme Court revolved around the 2013 arrest of David Jones in Clark County near Lexington.

Jones was jailed for 14 months as he awaited 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 courts.

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.

Jails take money when an inmate arrives, and from a commissary account often funded by friends or family.

When the bill was proposed in 2000, 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.

In its ruling, the Supreme Court noted the law is “unambiguous” in that “only the sentencing court is vested with the authority to order the payment of fees associated with incarceration of a prisoner in a county jail.”

Previously, however, arguments about the language in the bill and its constitutionality were 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.

Jails still improperly taking money from inmates since the October court ruling should have to pay those funds back and could face litigation, attorney Belzley said.

“We can do it the easy way, or we can do it the hard way,” he added. “Sooner or later, they are all going to be doing what they are supposed to be doing.”

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