COMMENTARY

2020 forced Ky. to think in new ways about criminal justice

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2020 was a trying time for the Commonwealth.  COVID-19 forced us to reconsider what was important and adjust how we conduct our daily affairs.  In our justice system, it meant keeping guards and people in incarceration safe by addressing the endemic overcrowding in Kentucky, where we sadly have the dubious distinction of having the seventh-highest incarceration rate in the nation


Our executive and judicial branches had to think quickly about an approach to the overcrowding crisis.  For years, Kentucky has dug a deeper and deeper hole by continuing to use a broken cash bail system for pretrial detention that prioritizes money over more important factors like flight risk or danger to society.  Kentucky’s predisposition to detaining people simply because they cannot pay has contributed to an embarrassing 40% recidivism rate. 


The Kentucky Supreme Court took important action in response to the pandemic. According to state data, in 2018 and 2019, administrative release was granted to about 10% of all persons arrested, whereas in 2020 during the pandemic, administrative release was granted to about 30% of all those arrested.  An additional 20,000 were released from jails on a judge’s order. Yet, despite many more persons being released pretrial, the public safety rate (as measured by whether released persons commit new offenses after release) remained virtually static.  Only 7% were arrested on new offenses, compared to 6% in 2018 and 2019.  Moreover, most of those class A or class B misdemeanors, or class D felonies, the lowest level felony.  In other words, almost 300% more people held in jail were released without any significant impact to public safety.  This does not come as a huge surprise because dozens of other states have changed their pretrial detention policies to similar results.


Kentucky could go a long way toward cementing these improvements by permanently implementing pretrial release in the judicial and/or legislative branches.  While this issue may not be fully addressed in this current 2021 short session of the General Assembly, legislators and advocates have their sights set on several reforms that could improve Kentucky’s justice system in the interim.


HB 25, championed by Rep. Killian Timoney of Lexington, a veteran educator, could help put a dent in our shameful recidivism rate by opening scholarship opportunities in the KEES for those with criminal records seeking a second chance.  This bill has the strong support of the business community, which has its sights set on raising educational attainment in Kentucky.


SB 36, sponsored by Sen. Whitney Westerfield of Christian Co., would return discretion to local prosecutors and local judges in local communities, instead of creating automatic transfers of minors in certain cases from District to Circuit Court.  This would continue the momentum of other juvenile justice reforms by focusing on rehabilitating and reintegrating kids into their communities.


Rep. C. Ed Massey of Hebron is tackling the realignment of Kentucky’s the felony theft threshold closer to other states with HB 126.  The felony threshold in Kentucky has not increased in over a decade and does not reflect the severity of the offense. Texas has a threshold for classifying a theft as a felony that is five times larger than Kentucky. Six of seven border states have higher levels than Kentucky. 


Other measures that show promise but are still coming into view are packages addressing policing methods like no-knock warrants, as well as bodycam policies, and officer misconduct. A Dignity Bill for those that are pregnant and incarcerated, and legislation helping to create a framework for recovery ready communities are also under consideration.


Racial inequity continues to plague our justice system, a fact that legislators have not wanted to face.  A recent Kentucky Chamber of Commerce task force recommended a number of steps like greater transparency about arrests, convictions and incarceration rates for adults and juveniles; required racial impact statements before criminal justice policies are implemented − a cause long championed by Sen. Gerald Neal of Louisville.


As the pandemic has shown, creative solutions to complex policy problems are attainable, it just takes the courage to try new approaches.


Marcus Ray is Kentucky State Conference President for the NAACP.  Nicole Krider is Director of Engagement for United Way of Kentucky.  NAACP and United Way of Kentucky are two of fourteen of partner organizations in
Kentucky Smart on Crime, a broad-based coalition working for common sense justice reforms. 

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