No bail for you: Kentucky counties are ‘wildly inconsistent’ in how they treat defendants

BIG SANDY REGION AMONG THE MOST LENIENT; MARTIN, LAWRENCE 1-2 IN KENTUCKY 

Kentuckians charged with crimes are treated so differently in every county when it comes to bail that they might as well live in different countries, a new study has found.

The report, titled “Disparate Justice,” says where people live in the state determines if they will stay in jail because they can’t make bail.

The study was released Tuesday by the Berea-based Kentucky Center for Economic Policy, a nonprofit research group that found bail practices “wildly inconsistent” by county.

It found that the share of defendants released before trial last year without having to post cash bail ranged from a low of 5% in McCracken County to a high of 68% in Martin County.

And when judges required cash bail, only 17% of defendants in Wolfe County could afford to pay it versus 99% in Hopkins County.

“Kentuckians presumed innocent should not have their freedom contingent upon their income or where they are arrested,” said the study’s author, Ashley Spalding, the center’s senior policy analyst.

Advocates of bail reform say the system now results in low-level defenders nationwide being detained for weeks or months simply because they can’t afford to pay their bail, while wealthier defendants, who may have committed worse crimes, can go free.

They also say that the practice of setting unattainable bonds drains local jail budgets, can cost defendants their jobs, and can even force them to plead guilty to crimes they didn’t commit, just to get out of jail.

But a bail reform measure died in the 2019 General Assembly without a hearing, as some judges testified they feared defendants might not return to court if cash bail is restricted.

The bill’s lead sponsor, state Rep. John Blanton, R-Salyersville, a retired state police major, said he hopes the data released this week will garner more support for the legislation in the future.

Kentucky law allows judges to release defendants before trial without posting cash. Options include releasing them on their own recognizance; on an unsecured bond, in which they only have to pay if they don’t show up; or based on a third party’s guarantee they will appear.

Defense lawyers in McCracken, where judges are least likely to release defendants without monetary conditions, say it’s always been that way.

“Traditionally judges here err on the side of caution and keeping defendants in jail,” said Abigail Barnes, a Paducah criminal defense lawyer.

Jeremy Ian Smith, who also practices there, said judges worry that without cash bonds, defendants will abscond.

That report, however, says that fear is groundless. In Washington, D.C., for example, a pioneer in bail reform, where nine of 10 defendants were released without posting cash bail, 90% returned for court and 91% did not re-offend.

In Kentucky, according to the report, which was based on data from the state court system, just 40% of defendants were released before trial on non-financial bond. And when cash bail was set, just 39% — 48,866 out of 124,102 — could afford to pay it.

The report also found wide discrepancies between the state’s two largest counties.

While 53% of defendants were released without posting cash in Jefferson, in Fayette County, the figure was only 18%.

The report noted that in Kentucky, every defendant receives a pretrial risk assessment that predicts the likelihood he will re-offend or fail to appear, and that if judges followed it, 90% of defendants would be immediately released without posting cash bail.

But judges are allowed to override it, which the report says subjects defendants to “unaffordable bail and pretrial incarceration.”

“A bond has become the norm in Kentucky and it’s time to change that,” Blanton said.

Judges who challenge the status quo can face a backlash.

In Jefferson County, when newly elected District Judge Julie Kaelin, a former defense attorney who believes cash bail favors the rich over the poor, set low or no cash bonds in several domestic violence cases earlier this year, Louisville Metro police fought back.

Police spokesman Jessie Halladay said some officers believed Kaelin’s decisions were not in the interest of public safety.

“Our officers work diligently to find justice for victims, and some of these decisions have been frustrating,” she said.

House Bill 94, which died in the House Judiciary Committee, would have required judges to impose cash bail only to ensure a defendant’s appearance in court, and it would have mandated that when judges do impose it, it must be an amount that the defendant can afford to pay.

Dangerous defendants could be detained after a hearing.

Unlike in federal courts, where defendants can be ordered held with no bail, judges in Kentucky must set bail in some amount, other than in capital murder cases.

COUNTIES LEAST LIKELY TO GRANT NON-CASH BAIL

1, McCracken 5%

2. Henderson 11%

3, Laurel 14%

4. Boyle 14%

5. Union 16%

107. Jefferson: 53%

COUNTIES MOST LIKELY TO GRANT NON-CASH BAIL

5. Johnson 63%

4. Metcalfe 63%

3. Barren 64%

2. Lawrence 65%

1. Martin 68%

COUNTIES WHERE DEFENDANTS WERE LEAST LIKELY TO MAKE BOND

1. Wolfe 17%

2. Breathitt 21%

3. Powell 21%

4. Martin 23%

5. Johnson 25%

7. Jefferson 26% (tied with 4 others)

COUNTIES WHERE DEFENDANTS WERE MOST LIKELY TO MAKE BOND

5. Edmondson 66%

4. Simpson 68%

3. Nicholas73%

2. Pike 78%

1. Hopkins 99%

By Andrew Wolfson
Louisville Courier Journal