Over the past few months, Kentucky’s severely overcrowded jails have been in the spotlight. While other states have enacted significant criminal justice reforms, reducing their prison and jail populations without compromising public safety, the trajectory in Kentucky is in the opposite direction.
Kentucky currently incarcerates more women than every other state but one, and has the eighth highest rate of pretrial incarceration and the second highest rate of jail admissions in the country. A recent series of articles by Lexington Herald Leader reporter John Cheves described the human misery caused by the severe overcrowding, leaving no doubt that our system is deeply troubled.
One of the big drivers of jail overcrowding is that too many people who are presumed innocent remain in jail pretrial, sometimes for months, because they cannot afford bail. We currently have a two-tiered system where those who have money can get out, while those who lack resources – even when charged with minor offenses – remain in jail. The Secretary of the Justice Cabinet testified before a legislative committee last week that in 2016, 37,000 people assessed as a low or moderate risk were held before trial for an average of 109 days, at a cost of over $100 million to local governments.
As a Berea-based group with Madison County residents on staff, we at the Kentucky Center for Economic Policy have taken note of a clear example of the problem in our community. The Madison County Jail is extremely overcrowded, but instead of addressing the overuse of unaffordable cash bail to reduce the number of people incarcerated pretrial, the fiscal court passed a 139% property tax increase to finance a huge new detention facility.
As a recent editorial from the Richmond Register pointed out, it is not just the drug epidemic driving the problem — it is how we are choosing to respond to it. Detaining many thousands of Kentuckians pretrial for low-level, non-violent offenses – and in jails lacking treatment programs – is not the answer. Besides being expensive to our local governments, the cost to those individuals and their families is significant, including loss of employment and housing, and the inability to care for children or family members. Further, people incarcerated before trial are more likely to be convicted, receive harsher sentences and plead to crimes they didn’t commit simply to get out of jail.
Research also shows that people of color are treated more harshly during pretrial processes (and in the criminal justice system more generally). Due to systemic barriers and discrimination resulting in disproportionately low incomes – often too low to make bail – the consequences of our failure to reform our pretrial system especially accrue to Kentuckians of color.
Whether or not a person gets out of jail pretrial also depends on where they live. Data available from the Administrative Office of the Courts for 2018 shows that the share of cases with defendants released pretrial without monetary conditions ranges from just 5% in McCracken County to 68% in Martin County. In Madison County, only 30% of cases resulted in release pretrial without monetary conditions, and less than half of those who were held on money bail were able to make the required payment.
The bottom line is a majority of people who are arrested and taken to jail in Kentucky face an insurmountable barrier to getting out based on the simple lack of money in their pocket – with where you live and the color of your skin impacting your chances. Pretrial incarceration often lasts longer than what one’s sentence would be if convicted.
Amending state law to prevent the use of money bail as a condition of release, or at the very least, to require consideration of the ability to pay if money bail remains an option, would be a good first step in reforming our system. We also need statewide standards in our pretrial system to address the arbitrariness that exists because of vastly different processes used by judges that result in large disparities and unequal justice from county to county.
This column ran in the State Journal on September 23, 2019.