Kansas’ Ad Hoc Pretrial Justice Task Force has been looking at ways to improve the state’s pretrial detention program. Its report will be released soon. Currently, 53% of county jail detainees haven’t been convicted - they just can’t afford bond or out-of-court supervision before trial.
In Kansas, 53% of those detained in our county jails are not there serving time because they’ve been convicted of a crime. These individuals are simply waiting for the disposition of their current charges. They are commonly referred to as pre-trial detainees.
For an overwhelming majority of these detainees, the only way they could be released from jail to await their trial is by posting a cash or surety bond. In some cases, they may be able to be released to a pretrial supervision program, but this also carries costs.
To be clear, 53% of the detainees in Kansas jails are there not because they’ve been convicted of a crime, but because they’re too poor to make bond or pay for out-of-court supervision.
Most Americans would be surprised by this reality of our criminal justice system, and a number of national surveys conducted in the last two years show most Americans wouldn’t approve of this practice, especially for misdemeanor and low-level felony offenses.
As an example, in a November 2018 Pew Charitable Trust survey, 80% of respondents believe that nonviolent or misdemeanor crimes do not warrant pretrial incarceration.
In addition, a number of studies support the fact that individuals held with pretrial detention fair worse in many ways than those who are released. Pretrial detainees may lose their job, be forced to abandon their education, and be evicted from their homes. Pretrial detention pushes people toward poverty. In addition, according to a recent Stanford Law Review study, defendants who are detained pretrial on a misdemeanor charge are 25% more likely to be convicted and 43% more likely to be sentenced to jail compared to similarly situated releases.
In response to several high-profile incidents, television exposes, national surveys and lawsuits across the country successfully challenging pretrial release as a wealth-based discriminatory practice, in 2018, the Kansas Supreme Court created the Ad Hoc Pretrial Justice Task Force to review Kansas pretrial detention policies and procedures.
The task force looked at the state’s current pretrial detention practices for criminal defendants, examined methods, other than pretrial detention currently used in Kansas, and compared effective pretrial detention practices and detention alternatives used in other courts with those currently used in Kansas, and used those comparisons to help develop a best practices model for Kansas district courts.
Here are a few of the task force’s preliminary recommended changes to improve Kansas’ pretrial detention program.
Educate judges and attorneys Recognizing that there has been an explosion of research on effective practices for minimizing failure to appear and maximizing public safety. The task force’s first recommendation is to educate judges and lawyers on this new research.
Educate the public Even though most Americans favor release from incarceration prior to trial, judges, prosecutors and law enforcement are often concerned those beliefs may not hold much sway with a local community when a judge releases a person prior to trial and that person commits a violent offense or flees the jurisdiction while awaiting trial.
Use notice-to-appear versus arrest Many states have increased the use of summons, citations or notices to appear in lieu of arrest for non-violent offenses, By diverting defendants charged with nonviolent crimes from the arrest and jail process, officers and courts can spend more time dealing with the defendants charged with violent offenses. The task force also concluded that officers are already using their discretion to arrest or issue a citation.
In their preliminary report (we still haven’t seen the final report) the task force supported the use of citations overs arrests for charges such as driving on a suspended license, driving without a licenses, minor in possession of alcohol, possession of marijuana, possession of drug paraphernalia, theft, and all other nonperson misdemeanor offenses.
Changes in pretrial supervision programs Pretrial supervision programs like electronic monitoring are still a restriction of a defendant’s liberty, said the task force in the report. “Pretrial conditions – especially when multiple conditions are imposed – can unnecessarily burden a defendant’s ability to work, care for children, and meet financial obligations. The question at the heart of this recommendation is how to determine a “Goldilocks Rule” - in other words, how much is too much, not enough, and just right?
Another recommendation is to consider waiving supervision program fees, a move that will reduce the wealth-based nature of this program.
Pretrial Risk Assessment A national debate is currently taking place regarding the use of risk assessment tools in assisting a judge in making the release decision. The goal is to help the judge determine which 20 of the 100 defendants brought before the court after arrest are likely to fail to appear in court or reoffend before their trial date. The task force recommended initiating a pilot program in a cross-section of jurisdictions across the state.
Expanded referral of individuals to mental health services versus jail Many of the sheriffs who testified before the task force indicated that jails have become the new community mental health institutions. Many departments across the state have implemented programs that include mental health professionals with law enforcement agencies. The task force supports expanding those efforts.
Adequately fund Larned State Hospital After a defendant is charged with a crime, the defendant, defense counsel or the prosecutor can request a determination of the defendant’s competency to stand trial. The court then orders the defendant to Larned for an evaluation of competency not to last more than 90 days. Due to lack of funding at Larned, an individual can spend more time waiting to go to Larned than their entire sentence might be.
Preconviction Treatment Professionals told the task force as many as 80% of the defendants in the criminal justice system in Kansas are there because:
• Their crime is related to the consumption, possession or distribution of illegal drugs
• They were under the influence of alcohol or drugs at the time they committed their crime,
• They committed their crime to get money to support their addiction to alcohol or drugs.
Kansas law currently allows for state-funded treatment, as an alternative to incarceration, for some individuals who are convicted of drug crimes. The task force recommends the use of a diversion program for many of these individuals. By using diversion, both prosecutors and offenders avoid costly trial proceedings. They also shorten the time from arrest to treatment, which allows for quicker intervention.
Establish pretrial procedures that move people through the arrest/release process more rapidly, including a timely judicial hearing to determine if there is probable cause to move forward with the case and to set timely judicial hearings for condition of release and to release an arrestee when a complaint is not “filed forthwith.” In some Kansas judicial districts, the task force wrote, individuals are kept in jail pending the filing of charges for longer than necessary, often due to the lack of adequate staff in local prosecutor or public defender offices:
Speed access to appointed defense counsel after arrest for timely review of release conditions. To help, the task force recommended assigning counsel to a defendant at their first appearance. Also ahead of their appearance before the judge, have the defendant complete a financial affidavit so that the judge can review it for appointment of counsel and for consideration of financial conditions associated with their release.
There we lots of suggestions for ways to help assist both the defendant and overloaded public defenders such as adding social workers or investigators to the department to help with the collection of data from defendants regarding bond status and with connecting defendants to social services that will assist them in making court appearances and complying with pretrial conditions.
Oops court dates The task force recognized that sometimes as cases drag on, it becomes more difficult to miss work, get babysitters, obtain transportation, etc. When that happens, providing a defendant an opportunity to appear without fear of re-arrest allows the case to quickly get back on track. Several courts around the country call these “oops” court dates.
Text message reminders Many state and local courts around the country have turned to court reminders to improve court appearance rates.
As part of our Solutions Journalism Project, “The Ciminalization of Poverty,” in future articles, we’ll dig further into many of these recommendations and how they might provide a positive benefit to lower-income Kansans.