A recently assembled Kansas Supreme Court task force will re-examine pretrial detention and bond practices in the state amid a national conversation about criminal justice reform.
“Every day Kansas judges decide whether to detain criminal defendants and under what circumstances,” Chief Justice Lawton Nuss, who signed the order, said in a release. “These decisions are made amid a national discussion about alternatives to pretrial detention and the need to ensure no person is unnecessarily deprived of his or her liberty. This is the perfect time for Kansas to examine its pretrial detention practices to identify if and where improvements can be made.”
In August, California signed Senate Bill 10 into law, which abolished the cash-bail system in the state. California courts will decide when a defendant is released from jail with consideration of a number of factors including the defendant’s records, the severity of the charges and whether they are a flight risk or a danger to the public.
The task force consisting of Kansas judges, attorneys, and court services and community corrections officers will make a recommendation to the Supreme Court regarding effective pretrial detention practices for criminal defendants in state district courts and possible alternatives within 18 months.
“There have been lawsuits all around the country challenging pretrial practices and their impact on low-income people,” said Kansas Court of Appeals Chief Judge Karen Arnold-Burger, who is chairing the task force. “In Kansas, probably up to 70 percent of people that are in jail are in jail pretrial, which means they’ve never been convicted of anything. We need to make sure that we are incarcerating the right people pretrial and that we’re doing it for the right reasons.”
In most states, judges assign bond amounts for defendants, which are meant to ensure their appearance in court. In the 21st judicial district (Riley and Clay County), if a defendant posts a cash bail in its full amount, they are released from jail before trial. They can also select a bonding agent to post bail for them for 10 percent of the bond as a service fee. Bail-bond companies may also require collateral to be put up if the defendant does not have enough money.
If a defendant cannot do either, they will remain in jail until they see a judge or are able to bond out. Bond money will be returned after the case resolves unless a defendant does not show up in court. A bail-bond company will keep the 10 percent fee regardless of the outcome of a case.
Brenda Jordan of Brenda Jordan Law Office LLC, a local criminal defense attorney, said through email that she’d often seen this system negatively impact the livelihoods of some of her clients. Jordan said not everyone can afford to shell out the money to a bond company or post bond themselves, which causes them to remain in confinement indefinitely. It could be several days to a week before the court could address bond issues or modifications again.
“Many people, particularly those that find themselves involved in the criminal justice system, are living paycheck to paycheck,” she said. “Those who have jobs are not employed in jobs wherein they have vacation time or any type of paid leave. Thus, if arrested and facing a bond, even on a low-level felony, they most likely do not have funds to pay to a bonding agency. If they can’t post bond, they lose their jobs due to missing work.”
Jordan and Arnold-Burger both said prolonged detention could sometimes convince defendants to plead guilty to their cases in order to be released sooner.
“Individuals that can’t obtain release are willing to plead where they otherwise would not even when advised against and when there are arguments or defenses for them,” Jordan said. “When they are in jail (and) have tried for reduction or release, (their) spirit gets broken and they take the quickest way out. Bond has, intentionally or otherwise, become a means of punishment for those accused.”
Arnold-Burger said a defendant may be put in pretrial detention for two reasons: to make sure they appear in court and to protect the public if a person poses as a safety risk. However, she said, bond doesn’t necessarily correlate with those factors.
“If the person is going to be a danger and that’s why you’re jailing them, how much money they’re able to post shouldn’t affect that decision,” Arnold-Burger said.
Jordan said courts should look at a defendant and their case as a whole, including prior infractions, job stability, whether a person has a home and is supporting a family and more to determine bond or whether they should be confined pretrial.
Arnold-Burger said similar practices, like a risk assessment program that analyzes inmates’ probability of appearing in court or committing another crime while they are out, have been introduced in other states. This would be an example of some of the options the task force will be examining across the state and country, she said.
“It’s not really a political issue,” Arnold-Burger said. “It’s not a liberal issue, it’s not a conservative issue. It’s a criminal justice reform issue. … I think it’s time to step back and give a fresh look.”
The task force will meet Dec. 13-14 in Topeka.