KENTUCKY -- The Kentucky justice system is under fire in a new report by the Kentucky Center for Economic Policy (KCEP). The report, “Disparate Justice: Where Kentuckians Live Determines Whether They Stay in Jail Because They Can’t Afford Cash Bail,” reveals discrepancies between Kentucky counties’ bail options and the ability of arrested individuals to pay that bail. It calls for bail reform to level the playing field of pretrial release across the Commonwealth.

There are two types of bail options in the judicial system for individuals who have been arrested.

Non-financial bond offers defendants the opportunity to be released without any immediate payment on the terms that the individual will appear in court for their trial date. The other option is a financial bond, which requires some type of payment or collateral to be released.

Both financial and non-financial terms of release are based on a risk-assessment of arrested individuals that estimate the likelihood of their reappearance in court and repeated participation in criminal activity upon release. A judge then labels the individual in one of the five risk categories that range from low- to high-risk. The law requires non-financial release of low- to moderate-risk defendants, however judges can override any category with just cause. High-risk cases are always at the judge’s discretion.

In addition to risk assessment, bail options presented to a defendant may depend on charge, relationships, years of county residency, health, veteran status, or perceived danger to the community.

90% of defendants would be granted immediate non-financial release if the categories were never overridden. The 2011 House Bill 463 required judges to use these risk assessments for bail decision. The bill’s initial implementation saw more low-risk defendants released, but in recent years, Kentucky judges have lightened their reliance on the assessment and turned to their own discretion.

Kentucky’s Administrative Office of the Courts (AOC) data reveals pretrial proceedings in Kentucky vary across county lines. 65 of Kentucky’s 120 counties are below the 40% statewide non-financial bond release rate. The cases granted pretrial release without cash bail range from 5% in McCracken County to 68% in Martin County. This type of variance, the report claims, points to an arbitrary judicial system.

In other words, a poor person in McCracken County has only a 5% chance at non-financial bail. If that same person lived in Martin County, they would have a 68% chance; there’s a better chance in McCracken to sit in jail and wait for a trial than in Martin, where the defendant is more likely to be released.

A study by the Pretrial Justice Institute found that unsecured bonds can be just as effective as financial bonds.

The Kentucky appearance rate in court is 79%, with 63% of high-risk defendants showing up for trial. 89% of released individuals in 2018 were not recharged, including 76% of high-risk individuals. In Washington, D.C., where more individuals are released than detained. 90% of those released by non-financial bond appeared in court, and  91% were not recharged. These rates correlate to Kentucky’s rates; in other words, if Kentucky were to release as many people as D.C., the rates listed above would be comparable.

Individuals incarcerated before their trial lose their employment and income while waiting, for what can sometimes be months, for their case to get to the courtroom. Detained individuals are also more likely to be found guilty, receive harsh sentences, plead guilty when innocent so they can return home, and commit future crimes. People incarcerated pretrial are also more likely to suffer economic and health consequences that come with a felony record.

According to the report, “Several studies have also found that people of color are often treated more harshly than white people during the pretrial release decision-making process.”

People of color have disproportionately lower incomes, and people with low incomes tend to struggle to pay bail. Thus, people of color are more subject to judicial inequality.

Additional problems are presented among those offered monetary bail.

Of the 57% of cases subject to money bail in Kentucky, only 39% are released. This area also sees a large variance. For instance, in Wolfe County, 17% of cases subject to cash bail result in the defendant being able to pay. However, 99% of cases in Hopkins County subject to cash bail result in the defendant being able to pay. Does this mean Hopkins County bail is more affordable than Wolfe County bail? Data on bail amounts is not available.

“Defendants across Kentucky’s 120 counties shouldn’t face incarceration just because they can’t afford bail,” KCEP Senior Policy Analyst and author of the report Dr. Ashley Spalding, said. “But the data suggests that they do, and that the state has a costly and arbitrary system of justice based on location.”

In some counties, low rates of non-financial bonds also have low rates of financial bonds, making it all around more difficult in those particular counties to achieve pretrial release.

Pretrial incarceration that results from lack of attainable bonds contributes to local jail overcrowding, creating poor living conditions and additional costs that not all counties can afford. Most local jails also are not equipped to treat people incarcerated with substance-use disorder.

“Reforming our dramatically inconsistent bail system should be a top legislative priority,” said Spalding. “Better standards can help address local disparities and make sure that, as a state, we limit the high costs of incarceration to our families and communities, not to mention local budgets.”

The report includes pretrial release data by county.