Monday, June 13, 2011

Pretrial Release and HB463


KRS 446.010 Definitions for statutes generally
(33) "Pretrial risk assessment" means an objective, research based, validated assessment tool that measures a defendant's risk of flight and risk of anticipated criminal conduct while on pretrial release pending adjudication.

Use of the assessment tool is required. Courts should not be able to detain accused persons pretrial based on a personal opinion or an intention to punish the defendant for a crime of which he has not yet been convicted.

Limits on Pretrial Incarceration

New Section of KRS 431
In considering pretrial release, courts shall consider three factors:

  •  Is the defendant a flight risk?
  •  Is the defendant unlikely to appear for trial?
  •  Is the defendant likely to be a danger to the public if released?

If the defendant is LOW risk, LIKELY to appear for trial, and NOT LIKELY to be a danger to others, the court shall order the defendant released on ROR or unsecured bond.

If the defendant is MODERATE risk of flight, nonappearance, or danger to others, the court shall order defendant released on ROR or unsecured bond, but shall consider ordering GPS monitoring, drug testing, increased supervision, or other conditions.

KRS 431.525 Conditions for establishing amount of bail
Maximum Amount of Pretrial Bond for Misdemeanors
When a person is charged with one or more misdemeanors, bail shall be a single amount no higher than the fine and costs for a single count of the highest misdemeanor charged. This only applies if charged misdemeanors do not involve physical injury or sexual contact.

Maximum Amount of Bail on Appeal
If a person is convicted of a misdemeanor that does not involve physical injury or sexual contact and sentenced to a sentence other than a fine only, bail for release on appeal shall not exceed double the amount of the maximum fine for one count of the highest misdemeanor. If the person was sentenced to a fine only, bail for release on appeal shall not exceed the amount of the fine.
The limits herein shall not apply if the defendant is found to be flight risk or danger to others, but a court denying release based on these factors much document the reasons for the denial in a written order.

New Section of KRS 218A
Any statute to the contrary notwithstanding, a person charged with a 218A offense which may result in presumptive probation (i.e. Possession of Controlled Substance First Degree or Trafficking Controlled Substance Third Degree) shall be released on ROR bond or unsecured bond unless he is found to be flight risk or danger to self or others. If he is not released, the court shall document the reasons in a written order.

Bail Credit for Pretrial Incarceration

Included in the New Section of KRS 431
Regardless of amount of bail, court shall permit credit of $100 per day toward bail, for each day or portion of day in jail. Upon service of sufficient days to satisfy bail, court shall order release. The jailer is responsible for tracking credit.

Release does not happen automatically, but the court must “order the defendant released” after “service of sufficient days in jail”. This means attorneys might need to file motions, depending on a judge’s practices. It will also likely raise client phone calls and complaints for extra days served unless an efficient system for release is developed.The Bail Credit does not apply to anyone found to be a flight risk or danger to others. It also does not apply to anyone convicted (not charged) of:

  • a felony sex offense (KRS 510),
  • 529.100 (Human Trafficking involving commercial sexual activity),
  • 530.020 (Incest),
  • 530.064(1)(a)(Unlawful Transaction with a Minor (Sex)),
  • 531.310 (Use of Minor in Sexual Performance), or
  • 531.320 (Promoting Sexual Performance by Minor),
  • Or who is a Violent Offender.

If a defendant is not released, the court shall document reasons in a written order.

Practice Tip: The Bail Credit does apply in felony cases. Attorneys will want to compare bonds after the effective date of the statute to the historical bonds of a court. If a court that traditionally set a $5000 bond for an offense suddenly starts setting $25,000 bonds for the same offense, it should be challenged as an attempt by the court to circumvent the Bail Credit.

Observation: The amended 431.525 and the new section of KRS 431 appear to be inconsistent. Under the new section, non-financial bond is required unless the defendant is found to be a high (i.e. not low or moderate) risk of flight, non-appearance, or danger. The limits on pretrial bail in 431.525 and the bail credits would only arise when financial bail is permissible, but then specifically do not apply if the defendant is a flight risk or danger. It would seem any defendant who is not a flight risk/danger would be entitled to ROR/unsecured and any defendant who is a flight risk/danger would not be entitled to the limits or credit.

New Guidelines Coming…

New Section of KRS 27A (Court of Justice)

The Supreme Court shall establish guidelines for judges to use for defendants whose pretrial risk assessments are moderate or high risk, both those who would be ordered to jail and those who are eligible for supervision.

Judges shall consider the guidelines.
The clear intent is that the Supreme Court will provide guidance so that even moderate and high risk defendants may be released with conditions.

Overall Observation of Pretrial Release Changes: Aggressive bail appeals under Rule of Criminal Procedure 4.43 will be necessary. If the new laws are applied as written, pretrial detention will be reduced significantly. Unless their practices were already very favorable to pretrial release, courts that do not change detention practices will either be in violation of the new laws or bending the new laws to fit their current practices. Either way, appellate review should be sought often and early to establish consistent implementation of the law, hopefully as the legislature intended.

Contributed by Damon Preston

Complete Overview and Commentary: House Bill 463 - Public Safety and Accountability Act provided to participants today at DPA's 2011 Annual Conference.