How Reducing Cash Bail for the Poor Can Help Solve the Rural Jail Crisis

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Darren Peckler

Kentucky Circuit Court Judge Darren Peckler has changed course after a study said his bail decisions discriminated against the poor. Photo by Ben Kleppinger/Advocate-Messenger.

Enic Anderson spent 73 days in a rural Kentucky jail because he couldn’t come up with the $5,000 money bond set by the judge in a case of second-degree criminal abuse—a Class D felony.

But in an October court appearance, Boyle County Circuit Court Judge Darren Peckler agreed to accept a secured 5 percent bond. Anderson was out of jail the next day, after paying the $250 and a $25 bond filing fee, for a total of $275.

It was a small but telling victory in a long-standing nationwide struggle to reduce the burden of money bail for poor defendants in rural areas.

A study commissioned by Boyle and Mercer counties’ fiscal courts singled out Judge Peckler’s court for “discriminatory” bond practices and lethargic case-processing times that had resulted in “bloated” numbers of inmates in the local jail.

“The jail is greatly bloated by three factors: (1) very slow felony case processing, (2) an apparent refusal to set non-financial bonds, (3) a very high incidence of revocation of initial bonds and rearrest after being indicted by grand jury,” the report said.

Anderson’s attorney, Public Defender Jessica Buck, was quick to cite the study’s analysis in favor of her client.

She argued in her motion asking for an unsecured bond that individuals like Anderson should not be re-incarcerated, once they were successfully out on bond, simply because they have been indicted by the grand jury. “Now, more than ever, the law and public policy supports the release of Mr. Anderson,” she wrote.

Anderson’s was one of multiple cases heard during Peckler’s Oct. 16 circuit court date where the judge sparred with public defenders over financial bonds. But the fact he’s out of jail now means Anderson’s case may also be part of a new trend in Peckler’s court that is leading to more defendants being released pretrial.

Anderson had been charged with first-degree wanton endangerment, a Class D felony, and lodged in the Boyle County Detention Center.

According to the charge against him, he was asleep at 10 a.m. on June 5, when “his 2-year-old son exited the residence and walked to an apartment complex, knocking on doors until (a resident) made contact with the child.”

$2,000 to Get Out of Jail

He was given a $20,000, 10-percent bond at the district-court level, meaning he would need $2,000 to get out of jail while his case was pending. At the district level, defendants are often given “bail credit” of $100 a day; after 19 days in jail, Anderson had $1,900 in bail credit. He paid $100 and a $25 bond filing fee and was released on June 23, according to court records.

A Boyle County grand jury then indicted Anderson in the case, but modified the charge to second-degree criminal abuse, also a Class D felony. Peckler set a new bond for Anderson at $5,000 cash. Anderson hadn’t done anything to violate the terms of his district bond, but he was re-jailed on Aug. 6.

Such cases appeared to form a pattern in bond decisions affecting the county’s poorest residents. Kentucky’s 50th Circuit and District courts, which handle cases for Boyle and Mercer counties, have offered defendants non-financial bonds at the lowest rates in the state for years, according to data from the state Administrative Office of the Courts (AOC).

According to data published by the AOC earlier in the year, defendants in Kentucky criminal cases were offered non-financial bonds — a chance to get out of jail while still considered innocent without paying money — about 39 percent of the time in 2017.

But in Boyle County, the rate was about 4 percent; in Mercer it was 7 percent.

The local study, compiled by consulting company Brandstetter Carroll at a cost of $75,000, said Peckler “consistently” sets cash bonds for everyone indicted on a felony charge — $5,000 for Class D felonies and $10,000 for Class C.

“Bail credit, surety bonds or release on own recognizance (ROR) bonds are not utilized in Circuit Court,” the study states. “… The judge is, in essence, acting as a magistrate to set bonds anew. In doing so, he is disregarding evidence of success of defendants who appeared in court and remained crime-free while out on pretrial release under bond set by the district judge.

“As a result, more defendants cannot afford the new bond.”

Public Defender Buck said she agrees with the study’s recommendation that Peckler’s court stop requiring new bonds for everyone indicted by a grand jury.

But she also acknowledged court precedent is clear that nothing is legally being done wrong when someone is re-arrested after indictment.

Nevertheless, she added, “I don’t think that anybody who is successfully out on their bond conditions out of district court should be re-arrested simply because they’re indicted by a grand jury.”

Anderson had been “compliant with all urine screening” required by his bond at the district-court level, she wrote.

Jail vs Work

Anderson petitioned Peckler from jail, saying he needed to “get back to work to support my family … and move forward in being a productive member of the community.”

Anderson, a self-employed handyman, was “obviously…unable to support his family while he was incarcerated and, being self-employed, it’s even harder to rebuild that,” said Public Defender Buck.

“The reputation you build in the community when you’re self-employed — and then all of a sudden, you disappear for two months or three months, it makes it harder for him to get jobs in the future.”

Buck said Anderson’s incarceration also made it harder for him to pay any child support he owes.

“I’m not sure what the community got from incarcerating Mr. Anderson for another two months,” she said. “I don’t see how it made the community safer or how it helped reunite Mr. Anderson and his children. It just seems like a waste of taxpayer money.”

Buck said she has witnessed the recent changes in bonds noted in the study firsthand.

“I will say that there have been significant changes lately, particularly in circuit court,” Buck said during an interview about the case against Anderson. “(October) was one of the first months that I had more people released … than stayed in custody (after their arraignments)”

The changes in Peckler’s courtroom may be reflected in the Boyle County Detention Center’s population, which has been in the 220s multiple days this month, after peaking at more than 400 inmates multiple times in 2017.

‘A Quieter Jail’

The impact on the county jail population has already been noteworthy.

“I guess there’s a lot of get-out-of-jail-free cards right now, I don’t know,” Jailer Barry Harmon told the Advocate-Messenger. “It’s nice. It sure makes a quieter jail.”

On Nov. 15, the population even dipped below the jail’s rated capacity of 220, hitting 217 inmates at about 10:30 a.m. An analysis of jail records by The Advocate-Messenger identified 27 inmates out of those 217 who were facing non-violent, non-sexual charges and being held on financial bonds at the circuit court level.

While the jail is rated to hold 220 inmates, the local study notes that the real “operational capacity is 176. Average daily populations exceeding 176 put the jail in a gray area with regards to constitutional rights.

“A jail’s operating capacity should accommodate the peak populations to ensure provision of constitutionally adequate levels of confinement, even when confinement is temporary or short-term,” the country report stated, adding that the jail has been “unable to accommodate peak populations for at least the past 16 years.”

The local study found that the combination of delays in case processing and the use of financial bonds in the 50th Circuit Court led to many defendants remaining in jail for the duration of their case, whether or not they posed a risk of failure to appear or committing a new crime.

“An estimated 80 percent of low-level felony defendants who receive a one-year sentence will have served a ‘state year’ (about seven months) at time of sentencing,” the report states.

“The answer to the question of ‘Why does this happen?’ may lie in the discriminatory manner in which bonds are set, i.e. economically-able defendants are able to post bond, while the less affluent stay in jail.

“The fact that the poor stay in jail does not mean that they are greater risks for failure to appear or of committing new offenses while on pretrial release. Many court cases and a volume of research attest to the discriminatory nature of blanket application of secured (financial) bonds.”

The study’s recommendations included adding another circuit court date every month, allowing circuit court defendants to enter pleas more than once a month and eliminating Peckler’s cap on the number of pleas he will hear each month.

When someone is arrested for an alleged crime and booked into a jail, a Pretrial Services officer conducts a risk assessment, according to Tara Blair, head of Kentucky’s Department of Pretrial Services.

Using Risk Assessments

The risk assessments are created using the Public Safety Assessment developed by the Laura and John Arnold Foundation (LJAF) — an assessment based on years of research and evidence that has been validated using data from more than 2 million cases in Kentucky, Blair said earlier this year. The same assessment has been statistically validated in other jurisdictions, she added.

Kentucky’s Pretrial Services has used “an objective, statistically valid pretrial risk assessment since at least 2010,” according to the Kentucky Department of Public Advocacy.

A 2014 study by LJAF found that Kentucky’s use of a pretrial risk assessment tool, called PSA-Court, allowed judges to “reduce crime by close to 15 percent among defendants on pretrial release, while at the same time increasing the percentage of defendants who are released before trial.”

During the first six months of using PSA-Court, Kentucky judges released 70 percent of defendants pending trial, up from 68 percent the previous four years, according to the study.

“What makes the increase in release notable is that it has not come at the expense of public safety; to the contrary, it has been achieved alongside a decrease in pretrial crime,” the summary states,” the study said.

“… The average arrest rate for released defendants has declined from 10 percent to 8.5 percent.”

The push for bail reform has some big names in Kentucky onside, including state Justice Secretary John Tilley and state Supreme Court Chief Justice John D. Minton Jr.

Tilley said earlier this year at a conference on rural incarceration that legislation to limit the use of money bail “still has momentum” in the commonwealth.

“The real opposition comes from judges who think they’re having their discretion removed in terms of a release decision — that there’s some risk instrument … some machine that tells me I’ve got to release this person,” Tilley said.

“… The research is very clear. The best decisions come from using science along with professional discretion. So I’ve tried to make sure judges understand nobody is suggesting they have to give up their discretion … use your common sense, you can deviate.”

This is a condensed and edited version of a report that appeared in the Advocate-Messenger as part of a series looking into jail reforms in rural Kentucky. Ben Kleppinger is a staff writer for the Advocate-Messenger and a 2018 John Jay Rural Justice Reporting Fellow. The complete story is available here.

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