Commonwealth v. Carman -- The Kentucky Supreme Court's 20 Pages of Trees

In the category of "can't see the forest for the trees" is a Kentucky Supreme Court opinion discussing bail in that state. Here's a link to the opinion:

http://opinions.kycourts.net/sc/2013-SC-000684-CL.pdf

You may recall that Kentucky has no commercial sureties; indeed, that state declared them unlawful in the 1970s. Nevertheless, Kentucky still apparently relies on money, as this case amply illustrates.

If you read the opinion, you'll find yourself digesting about 20 pages of trees -- details about when judges can set bail, alter bail, do things ex parte (hint: as a rule of thumb, it's universally hardly ever to never) -- but if you get that deep into it, you'll lose that elusive forest. I'll use the easiest defendant, one Shannandoah Carman, to illustrate.

Carman was assessed by the pretrial services program to be someone who could be released on his own recognizance (i.e., without paying a secured financial condition). The judge on "duty" that day nonetheless decided instead to condition Carman's release on paying $1,000 in cash, and set his arraignment for the next day. The next morming, however, a new judge, who was apparently neither the new duty judge nor the judge who would ultimately be assigned the case, took it upon himself to release Carman on his own recognizance, meaning that the judge either changed the financial amount to nothing, or that he made the amount what we call an "unsecured amount," meaning that it only had to be paid on the back-end in the event that Carman didn't show up for court. This change, whichever it was, allowed for the immediate release of Carman because he was no longer required to pay money up-front to get out of jail.

This angered the prosecutors (and possibly the first judge), and thus began the long appeal over what the second judge did and how he did it. In the end, you have an opinion that lays down some rules about what judges can and can't do in Kentucky. But let's step back and check out that forest.

When the first judge set a cash bond, he did so against the recommendation of the pretrial services assessment (which apparently stated that Carman could be safely managed in the community, and that a cash condition would not help in any way), the pretrial research (which shows that money doesn't matter for either court appearance or public safety, that secured bonds only detain people unnecessarily, and that even short-term detention periods of a day or two can make certain defendants and society less safe for no good reason), the national best practice standards (which dissuade judges from using secured bonds altogether), and the law (which says that adding a secured financial condition to a bond "just to be sure" is excessive and the resulting detention is a violation of procedural due process). By simply releasing Carman with no financial condition (or by changing the secured financial condition to an unsecured one, if that's what happened) the second judge actually did substantively what was right, just, and lawful. Something we all really want our judges to do.

Now, he didn't do it the way it he should have (that's more of the detail found in the trees, and concerning this particular issue the trees start to appear a bit weird and sleazy), but the point is that if the first judge actually wanted to follow legal and evidence-based practices at bail, he would have set a recognizance or unsecured appearance bond to begin with. The opinion doesn't say so, but I'll bet five dollars that money wasn't the only condition of release for Carman; there were likely a bunch of what we call non-financial conditions that would do quite well at providing reasonable assurance of public safety and court appearance. But, as you all know by now, money is the thing that keeps people in jail, starts all the bad things happening, and triggers lawsuits and appeals.

Overall, this "forest" in this case illustrates something that happens a lot in America. Judges who don't know better (or don't care) will cling to outdated and potentially unlawful practices due to custom, habit, and, sometimes, outspoken prosecutors.

Which reminds me, what about the prosecutors in this matter -- the ones who were ethically bound to "do justice" in the case and who argued vehemently throughout this process and appeal for the cash condition on Carmen's bond? Well, in the end, they dismissed all charges against Carman. Now just think about that for a minute, and realize that there's something catastrophically wrong with a system that would tolerate keeping a person in jail by using money, endure arguing, ad nauseam, that the person "needs" an irrational, arbitrary, and destructive condition of release, like money, and then condone the ultimate dismissal of that persons's case at some later date without anyone even hinting at the injustice that would have occurred had Carman not been released pretrial.    

Kentucky is rightfully being hailed as a state that is further along than most when it comes to bail reform. Nevertheless, as this case readily shows (and, really, like everywhere else), it still has a bit further to go.    

       

The Evolving Views of the Bail Insurance Companies

It used to be that two of the most ridiculous statements ever made by bail insurance company lobbyists (you remember them ... they're the ones who get paid humongous fees to make sure we keep money bail in place) are these: (1) there's no such thing as people being in jail because they can't afford to pay money; and (2) there's no presumption of innocence at bail. These aren't the only two, but they're biggies, and so I figured that eventually they'd have to start spinning their way out of them.

Well, just recently I read an online article by a big bail insurance company, and it premised its whole shtick on the presumption of innocence. Man, that's a pretty big reversal. Somewhere on this same company's website is another, older article, in which a lobbyist for the same company went to great pains to explain why criminal defendants are not presumed innocent at bail. Knowing this company, it's probably still on there because it doesn't even recognize when it contradicts itself anymore.

So that's one extraordinarily ridiculous statement recanted, and one more to go.

Just remember that the issue we all face with bail and no bail is money. If you're not thinking about money -- what to do with it and whether you even need it -- you aren't doing pretrial justice "justice."

Bondsmen aren't the problem. They're just using an antiquated, unfair, and opaque system to try to make a living. Most bail agents I have met are great people, and they believe deeply in the right to bail. The insurance lobbyists, though, are something quite different. One day they'll say there's no presumption of innocence, and the next day they'll say there is. They'll tell you just about anything to keep you from rationally thinking about money. And that's because if we start thinking about money rationally, they may not get their cut.