JPI Reports on Bail

The Justice Policy Institute published three reports on the U.S. bail system in an effort to raise public awareness on an issue that is not often highlighted -- and one that most people do not fully understand. The intricacies of the U.S. bail system are complex from the point of arrest to the insurance agencies that oversee bail bond companies.

During the month of September 2012, JPI published Bail Fail, For Better or for Profit and Bailing on Baltimore, three reports that analyzed the current system of bail and its impacts on the community at large.

Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail
(PDF)
Click here for Bail Fail fact sheet

 

 

To download the High Price of Bail infographic, (PDF)click here.

Kentucky Pretrial Services Legislative Impact Report

Kentucky Pretrial Services recently published, Report on Impact of House Bill 463: Outcomes, Challenges and Recommendations. The purpose of the report is to measure the impact of HB 463, which implemented sweeping changes to many aspects of the criminal justice system in Kentucky. The report examined data a year prior and a year after implementation and found that as the number of monitored conditional releases went up, pretrial failures decreased. 

Featured Case - Partee

Court of Appeals, 2011-CA-001054-MR

Marquisa Lavana Partee v. Commonwealth

Olu A. Stevens, Judge, Jefferson County

Not To be Published Opinion, Dismissing [Bond Conditions] Appeal

** ** ** ** **

Before: Moore, Nickell and Thompson, Judges.

Opinion by Judge Moore

** ** ** ** **

Partee was released pre-trial on her own recognizance.  Thereafter, the circuit court ordered her to submit to an inpatient evaluation at KCPC to determine criminal responsibility.  Upon completion of the evaluation, Partee was to be released once again on her own recognizance.

Partee filed an appeal to the COA pursuant to RCr 4.43, which permits an expedited appeal from a circuit court decision that changes “the conditions of bail.”  The COA held that since Partee was not released on bail, but on her own recognizance, the COA lacked jurisdiction to consider her appeal under RCr 4.43, and her only recourse is to file an original action under

CR 76.36.

            In a long footnote, the COA complained that RCr 4.43 was not followed in this appeal and was “not expedited in any manner.”   The COA scolded counsel for Partee as well as the Commonwealth for not moving the Court to comply with RCr 4.43(1)(d), once it became aware that the COA was not acting to decide the case in a timely manner.

Practice tip:   As the dissent points out, bail jumping charges have always applied if you fail to appear, whether it’s from OR or a regular bond.  This case suggests a defense an OR person has never had before.

Contributed by Susan Balliet

Overloaded Public Defense Systems Result in More Prison Time, Less Justice - Justice Policy Institute Report

New report from Justice Policy Institute : Public defense systems in U.S. have too many cases, too little time, too few resources

The report identifies 5 ways poor quality public defense increases incarceration

1. more pretrial detention for people who do not need it;
2. increased pressure to plead guilty;
3. wrongful convictions and other errors;
4. excessive and inappropriate sentences that fail to take into account the unique circumstances of the case; and
5. increased barriers to successful reentry into the community.

Recommendations from the report include:

  • Integrate a holistic and community-based approach to public defense. Community-based and holistic approaches to defense can help address the root causes of justice system involvement and prevent future involvement by treating the whole client. This can improve public safety, save money on corrections and have a positive impact on people and communities.
  • Collect better data and conduct more empirical evaluations on the impact of public defense systems on people, communities and criminal justice. Rigorous research and data collection on all justice policies and practices, but especially public defense, can help policymakers make informed decisions on policies that impact public defense.
  • Involve public defenders and affected communities in the policymaking process. As people who are directly involved with the laws and policies in a state or locality, defenders are in the unique position of being able to offer insight on the impact these policies have on people, on their law offices, and on the justice system. As such, defenders should be actively engaged in the policymaking process for criminal justice policies as equal partners in the justice system.
  • Actively seek out the voices and perspectives of people who have used defender services to gain a better understanding of the realities of various systems and the implications for people. Nobody knows better the impact of criminal justice policies and practices than people who are involved in the justice system. Involving people directly impacted by the justice system will provide crucial information on making better and more effective and just policies.

Full Report
Factsheet
Press Release

KY Supreme Court Bail Pilot Project Extended and Amended: A Program Coming to Your County

In 2009, the Kentucky Supreme Court Criminal Rules Committee recommended a 9-county piloting of a bail schedule to the Court. The goals were to increase release rates, to have release occur sooner for persons presumed innocent, and to save counties jail money.

The Kentucky Supreme Court in Administrative Order 2009-14 authorized a Bail Pilot Project in Bell, Boyd, Boone, Butler, Campbell, Edmonson, Kenton, Ohio and Pike Counties from January 1, 2010 to December 31, 2010 and extended this program in Administrative Order 2010-12 through June 30, 2011. In Administrative Order 2011-05 it was again extended through June 30, 2012 for further study and the impact of HB 463 on it with some changes. These Administrative Orders effectively amend the bail rules, RCr 4.00 et. seq.

The 2011 changes include

  • Amended Uniform Schedule of Bail to be used in 9 counties except in Campbell "the class D felony Schedule shall not be used."
  • DUI 1st, AI, PI, Drinking in a Public Place and all violations have been deleted from the Schedule.
  •  A new "one bail for all" calculation of bail is made as follows: except where there is at least one Class D felony and the number of crimes charged exceeds five, the bail for all will be the one bail for the highest crime charged. 

The Schedule can be found here.

AOC continues monitoring the Schedule for performance. A new AOC Report will be out in October 2011. Crimes covered by the Schedule are non-violent, non-sexual and generally 1st offense only. A  Judge has the discretion to go below the Schedule. However, if a Judge goes above it, the reasons have to be recorded, creating a record for immediate appeal, if necessary.

Scott_willt
The year-end analysis of the 9-county pilot reports pretrial incarceration time, failure rates, and cost savings to the counties. Justice Will T. Scott said that the Report "indicates that the Jailer operated Schedule practically ties Pretrial on reported Failure to Appear Rates (12% vs. 13%) and beats them by 2% on recidivism, while doing it on an average release time of 4 hours versus 35 hours for pretrial - even on Schedule qualified defendants. The statewide average is around 95-100 hours.  So generally, on the types of crimes the Court has limited the Schedule to, it is outperforming the science-based release practices. That's the success of the Schedule as I see it."

The Report also discusses the differing viewpoints on bail schedules:

"When discussing the concept of bail schedules in general, pretrial practitioners, judges and the public are split philosophically. Advocates for bail schedules cite the positive aspects such as monetary and time savings for pretrial staff, a faster release from jail and a higher percentage of releases overall. Those opposed to bail schedules cite the negative aspects such as risk to public safety due to the lack of a risk assessment being conducted, limited judicial discretion in bail decisions, a step away from the use of evidence based practices and unfairness to the poor."

The full Report can be found here.

AOC - Federal study validates risk-assessment tool used by Kentucky courts for pretrial release

As the pretrial release provisions of the New Penal Code and Controlled Substances Act (HB 463) begin being applied by the courts, the Administrative Office of Courts has announced publicly a study by the JFA Institute in Washington which affirms the validity of a key tool used by district and circuit judges when setting bonds for persons accused of crimes. 

According to the study, the AOC’s Manual Pretrial Interview, Investigation and Risk Assessment – which objectively classifies an individual’s risk of failing to appear in court or committing an offense while on bond into “low,” “moderate,” or “high” categories – ranks among the best in the nation in terms of its ability to predict the behavior of those released on bond. 

With the JFA’s publication of this report (Kentucky Pretrial Risk Assessment Instrument Validation), the AOC’s Manual Pretrial Interview, Investigation and Risk Assessment has been proven a key component of Kentucky’s transition toward “evidence-based practices” for making bond decisions. 

Read the entire AOC announcement

Kentucky Pretrial Risk Assessment Instrument Validation

AOC’s Manual Pretrial Interview, Investigation and Risk Assessment

Contributed by Scott West

PJI Releases State of the Science of Pretrial Release Recommendations and Supervision

Earlier this year, the Bureau of Justice Assistance (BJA) and Pretrial Justice Institute published the document, State of the Science of Pretrial Risk Assessment. That document focused on what the field knows about our ability to predict the likelihood of failure to appear in court or rearrest on new charges among pretrial defendant populations. It described the great strides that the field has made in assessing risks of pretrial misconduct, as well as the challenges that researchers face in validating pretrial risk assessment instruments, and guidance on how they can face those challenges.

This document, State of the Science of Pretrial Release Recommendations and Supervision, has a different focus. It picks up where the first document left off. The document was also funded by BJA and asks the next question: now that we know so much more about predicting risks of pretrial misconduct, how can we use that information to better assure that defendants are appropriately matched to conditions of pretrial release that are designed to minimize their identified risks?

 

  

Pretrial Release and HB463

Definition

KRS 446.010 Definitions for statutes generally
(33) "Pretrial risk assessment" means an objective, research based, validated assessment tool that measures a defendant's risk of flight and risk of anticipated criminal conduct while on pretrial release pending adjudication.

Use of the assessment tool is required. Courts should not be able to detain accused persons pretrial based on a personal opinion or an intention to punish the defendant for a crime of which he has not yet been convicted.


Limits on Pretrial Incarceration

New Section of KRS 431
In considering pretrial release, courts shall consider three factors:

  •  Is the defendant a flight risk?
  •  Is the defendant unlikely to appear for trial?
  •  Is the defendant likely to be a danger to the public if released?

If the defendant is LOW risk, LIKELY to appear for trial, and NOT LIKELY to be a danger to others, the court shall order the defendant released on ROR or unsecured bond.


If the defendant is MODERATE risk of flight, nonappearance, or danger to others, the court shall order defendant released on ROR or unsecured bond, but shall consider ordering GPS monitoring, drug testing, increased supervision, or other conditions.


KRS 431.525 Conditions for establishing amount of bail
Maximum Amount of Pretrial Bond for Misdemeanors
When a person is charged with one or more misdemeanors, bail shall be a single amount no higher than the fine and costs for a single count of the highest misdemeanor charged. This only applies if charged misdemeanors do not involve physical injury or sexual contact.

Maximum Amount of Bail on Appeal
If a person is convicted of a misdemeanor that does not involve physical injury or sexual contact and sentenced to a sentence other than a fine only, bail for release on appeal shall not exceed double the amount of the maximum fine for one count of the highest misdemeanor. If the person was sentenced to a fine only, bail for release on appeal shall not exceed the amount of the fine.
The limits herein shall not apply if the defendant is found to be flight risk or danger to others, but a court denying release based on these factors much document the reasons for the denial in a written order.

New Section of KRS 218A
Any statute to the contrary notwithstanding, a person charged with a 218A offense which may result in presumptive probation (i.e. Possession of Controlled Substance First Degree or Trafficking Controlled Substance Third Degree) shall be released on ROR bond or unsecured bond unless he is found to be flight risk or danger to self or others. If he is not released, the court shall document the reasons in a written order.


Bail Credit for Pretrial Incarceration


Included in the New Section of KRS 431
Regardless of amount of bail, court shall permit credit of $100 per day toward bail, for each day or portion of day in jail. Upon service of sufficient days to satisfy bail, court shall order release. The jailer is responsible for tracking credit.

Release does not happen automatically, but the court must “order the defendant released” after “service of sufficient days in jail”. This means attorneys might need to file motions, depending on a judge’s practices. It will also likely raise client phone calls and complaints for extra days served unless an efficient system for release is developed.The Bail Credit does not apply to anyone found to be a flight risk or danger to others. It also does not apply to anyone convicted (not charged) of:

  • a felony sex offense (KRS 510),
  • 529.100 (Human Trafficking involving commercial sexual activity),
  • 530.020 (Incest),
  • 530.064(1)(a)(Unlawful Transaction with a Minor (Sex)),
  • 531.310 (Use of Minor in Sexual Performance), or
  • 531.320 (Promoting Sexual Performance by Minor),
  • Or who is a Violent Offender.

If a defendant is not released, the court shall document reasons in a written order.


Practice Tip: The Bail Credit does apply in felony cases. Attorneys will want to compare bonds after the effective date of the statute to the historical bonds of a court. If a court that traditionally set a $5000 bond for an offense suddenly starts setting $25,000 bonds for the same offense, it should be challenged as an attempt by the court to circumvent the Bail Credit.


Observation: The amended 431.525 and the new section of KRS 431 appear to be inconsistent. Under the new section, non-financial bond is required unless the defendant is found to be a high (i.e. not low or moderate) risk of flight, non-appearance, or danger. The limits on pretrial bail in 431.525 and the bail credits would only arise when financial bail is permissible, but then specifically do not apply if the defendant is a flight risk or danger. It would seem any defendant who is not a flight risk/danger would be entitled to ROR/unsecured and any defendant who is a flight risk/danger would not be entitled to the limits or credit.

New Guidelines Coming…


New Section of KRS 27A (Court of Justice)

The Supreme Court shall establish guidelines for judges to use for defendants whose pretrial risk assessments are moderate or high risk, both those who would be ordered to jail and those who are eligible for supervision.


Judges shall consider the guidelines.
The clear intent is that the Supreme Court will provide guidance so that even moderate and high risk defendants may be released with conditions.


Overall Observation of Pretrial Release Changes: Aggressive bail appeals under Rule of Criminal Procedure 4.43 will be necessary. If the new laws are applied as written, pretrial detention will be reduced significantly. Unless their practices were already very favorable to pretrial release, courts that do not change detention practices will either be in violation of the new laws or bending the new laws to fit their current practices. Either way, appellate review should be sought often and early to establish consistent implementation of the law, hopefully as the legislature intended.

Contributed by Damon Preston

Complete Overview and Commentary: House Bill 463 - Public Safety and Accountability Act provided to participants today at DPA's 2011 Annual Conference. 

ACCD Releases Policy Statement on Pretrial Justice Practices

This week the American Council of Chief Defenders released a policy statement on Policy Statement on Fair and Effective Pretrial Justice Practices

Executive Summary

Pretrial release practices throughout the country frequently result in the unjust, unnecessary, expensive, and prolonged detention of many individuals prior to trial.

Our legal traditions urge us to reserve pretrial detention for only the most carefully limited circumstances, and all available evidence reflects the importance of doing so.


Pretrial detention has harsh consequences, including the loss of jobs, homes, and family ties. Research has revealed that all other factors being equal, individuals who are detained prior to trial experience more severe ultimate outcomes. Just as importantly, the heavy reliance by many jurisdictions upon monetary bond as a pretrial release condition disproportionately affects the poor and minorities.

Given our evidence‐based ability to accurately identify risk, communities can lower their jail costs while ensuring that only those who pose significant risks of flight or danger are detained.


This American Council of Chief Defenders Policy Statement calls for a new commitment by all criminal justice stakeholders to ensure fair and appropriate pretrial release decision‐making, and outlines key action steps for each pretrial actor. In particular, this statement calls upon defenders to advance the following initiatives:

Examine Pretrial Release Practices Within Their Own Jurisdictions to Identify Key Areas of Improvement. While jurisdictions may share common issues, each has its own unique set of practices and traditions. Where unnecessary or unjust pretrial detention is occurring, defenders ought to identify the particular practices leading to those outcomes.

Identify and Implement National Standards and Best Practices. Several national organizations have developed national standards on pretrial practices, and these provide excellent guidelines for defenders in developing strategies to improve pretrial outcomes. Defenders should become familiar with these standards and strive to implement them in daily practice.

Develop Collaborative Efforts Among All Criminal Justice Stakeholders to Improve Pretrial Practices. Improvements are only feasible where open dialogue is occurring between all pertinent criminal justice leaders. Defenders can lead the effort to develop a collaborative approach to rectifying identified detrimental pretrial practices. This effort ought to include local and state policy‐makers, who determine how resources are allocated.

Develop Effective Pretrial Litigation Strategies. Defenders ought to be equipped with effective and efficient litigation strategies, grounded in local practice and law, to challenge pretrial‐release decisions that result in unnecessary detention.

click here to see entire statement