Saturday, February 21, 2015

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:

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.