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Emptier Jails and Quicker Release: A Look Into Kentucky’s COVID Pretrial Reforms

Kentucky Pretrial Services has grown into a more efficient and consistent system over the past few months, due in part to significant reforms made in the face of the COVID-19 pandemic.

Between the release of thousands of incarcerated people, a quickened assessment process, and an expansion of delegated release authority, Kentucky Pretrial Services has grown into a more efficient and consistent system over the past few months, due in part to significant reforms made in the face of the COVID-19 pandemic.

The department is headed by Tara Blair, Executive Officer of Kentucky Pretrial Services, and is one of the 197 jurisdictions that participated in a recent survey conducted by the National Association of Pretrial Services Agencies (NAPSA) to see how departments across the country are reacting to the virus’ threat.

Kentucky’s justice system operates at a state-wide level, including pretrial services, and takes direction from the state’s Supreme Court. In early March, the court acted quickly to shut down operations, according to Blair, offering only emergency hearings for people already in custody.

Blair said her department’s initial concern was the safety of staff, who often work inside jails and in close quarters with one another and their clients.

“We were already working on getting our staff out of the jails anyway, so this gave us a good opportunity to do so on a wider scale, for the safety of everyone,” Blair said.

On April 14, Blair said the Supreme Court ramped up their reforms, ordering an expansion of delegated release authority to include all nonviolent, nonsexual misdemeanors and Class D felonies, as well as all civil matters and bench warrants for failure to appear.

“We have had statewide delegated release authority since 2017, for certain types of offenses, which means there is pretrial immediately upon arrest. We do our risk assessment, and then based on the charges and the score, we’re able to release without contacting a judge,” Blair said. “So this is something we had done before, but now we were able to do it at a larger scale.”

The Supreme Court’s April 14 order also stated that those releases would be on their own recognizance, meaning there would be no financial conditions, so long as they did not “pose a high risk for new criminal activity.” Defendants charged with felonies or those who had been deemed “high risk for failure to appear,” were ordered to be supervised by pretrial services through monitored conditional release.

Under the order, all defendants must be interviewed, assessed, and have their cases presented to a judge within 12 hours of arrest. Before, Pretrial Services was given 24 hours to complete that process.

“The purpose of all of this was to expedite the release of people, so the jails wouldn’t have to put them into the regular population,” Blair said.

Common arguments against the types of reforms put in place in Kentucky and advocated for by NAPSA are rooted in a fear that if people are being released quickly and with little-to-no financial burden, crime rates and recidivism will go up.

However, Blair said they have not seen any evidence in favor of that argument.

“People are getting released that otherwise would not have, and we’re still not seeing much of an increase in our crime or arrest rates at all, and I don’t expect to,” she said.

Immediately after the Supreme Court’s order went into effect, Blair said Kentucky’s daily arrest rate decreased dramatically.

“Pre-COVID, on any given day, our arrests were at maybe 500 to as much as 700 arrests in one day, statewide,” Blair said. “Those numbers started going down in March, and then in April, we didn’t even touch 200.”

However, she said they saw the arrest rate start to creep back up in May and it has continued to slowly rise, but as of July, has still not reached their previous number. She also said the state has not seen any significant increase in rearrest rates.

Blair said the increase in arrests can be partially explained by an influx of protests surrounding the death of Breonna Taylor and the Black Lives Matter Movement. But, she said statewide, the reforms have allowed them to process these cases more quickly, which has mostly kept arrested protesters out of jail.

Lauren Polston, supervisor at Jefferson County Pretrial Services — where Louisville is located — agreed that they’ve been able to get the vast majority of arrested protesters released quickly and with no financial conditions.

“For the most part, everyone who has been arrested regarding the protests have been released,” Polston said, pointing to a July 14 protest at Attorney General Daniel Cameron’s home, which resulted in 87 felony arrests on the charge of intimidating a participant in the legal process.

“The felony they charged them with was on our exclusion list, so we had to make multiple judge calls to get them all released, and they in the end, the judges did release everyone. But that was an instance of how we were able to keep people from being detained any longer than necessary,” Polston said.

(Cameron later announced his office would be dropping the felony charges.)

Taylor’s death — along with the murder of George Floyd and other instances of police brutality against Black communities — has sparked widespread discussion of the racial disparities within the United States justice system. However, Blair said these conversations are not new in her department, and addressing these concerns has been a statewide initiative since 2017.

“We have been looking at racial disparities in Kentucky’s court system for years, and our Supreme Court made it an initiative in 2017, so this has been a concern of ours for a long time,” Blair said. “It’s something that’s very important to the courts, it’s something that’s very important to me, personally, and it’s been something we’ve been working towards since before the Breonna Taylor tragedy.”

In analyzing police and court records, Blair said there are some clear racial disparities at the time of arrest, but that they don’t necessarily follow defendants during the pretrial process.

“In the two counties that we have this data for — Jefferson and Hardin — we’re not seeing those disparities in the demographics of those released pretrial. So, to me that’s a good thing,” Blair said.

According to Blair, more than 3,000 people were released from Kentucky’s county jails in early March, due to COVID-19 concerns.

“Our jail population is the lowest it’s ever been, as far as I know. I’ve been doing this for over 20 years and I can’t remember our pretrial jail population ever being this low,” Blair said. “Unfortunately, our jails are often over capacity, with about 27 percent of the population being pretrial. But now, because our pretrial population has decreased and because of the efforts by the Department of Corrections, we don’t have any jails that are at capacity right now.”

In the months since those initial releases, Blair said Kentucky’s jail population has gone back up somewhat, but it is still notably lower than before.

Overall, Blair said the most encouraging and impactful shift she’s seen come out of the changes Kentucky has made since March is the consistency of how cases are handled.

“We’re a unified, statewide program, but we had huge inconsistencies in release rates from county to country.” Blair said. “But now, thanks to these reforms we made, it’s more consistent, which we think is more fair to our defendants across the board.”

Courts reopened on June 1, but with reduced dockets and health and safety restrictions in place. Jury trials remain suspended, and Blair said if a defendant is able to attend a hearing remotely, judges must allow them to do so.

While already they’ve seen some of the reforms roll back — particularly in regards to law enforcement and bench warrants — Blair said she hopes her agency will be able to keep the majority of their changes in place.

“The expansion of the delegated release — including the low level, nonviolent, nonsexual offenses, I would like to see that stay. That’s something that I, myself, and within my department, we’ve been wanting for a long time,” she said.

Blair said she also hopes to be able to keep pretrial staff out of jails as much as possible, as well as the statewide consistency the COVID reforms allowed them to have. What’s more, she said, thanks to data like that collected by NAPSA in April, it’s more likely than ever that the changes will stick.

“If these reforms are still in place six months, a year from now, and the sky didn’t fall, I think that speaks for itself,” Blair said.