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Kentucky Department of Public Advocacy

PROCLAMATION IN SUPPORT OF OBJECTIVE PRETRIAL RELEASE ASSESSMENTS

May 10, 2017

The Kentucky General Assembly has determined that evidence-based practices and objective, statistically valid pretrial risk assessments shall be considered when judges make decisions regarding bail, KRS 431.066 and 446.010(35); and

The Kentucky Administrative Office of the Courts, Pretrial Division, has used an objective, statistically valid pretrial risk assessment since at least 2010, including an assessment improved and developed by the Laura and John Arnold Foundation (LJAF); and

The rates of those released pretrial have increased since the usage of the objective, statistically valid pretrial risk assessments; and

Studies of the data of 100% of those released pretrial, which track the performance of those released, show that persons classified as “low risk” come back to court and do not commit new criminal offenses while on release approximately 94% of the time, and that persons classified as “moderate risk” come back to court and do not commit new criminal offenses while on release approximately 88% of the time; and

The Kentucky Supreme Court issued Order 17-01 (February 14, 2017), Authorization for the Non-Financial Uniform Schedule of Bail Administrative Release Program. This Order is mandatory statewide, and relies upon the classification system in the objective, statistically valid pretrial risk assessment, to provide for “own recognizance” release in non-violent, non-sexual, non-aggravated/multiple offense DUI misdemeanors for persons who are “low risk” or in the bottom half of those classified as “moderate risk;” and

Based upon the experience of Kentucky in using the LJAF pretrial risk assessment tool and the documented success it has demonstrated in terms of the return to court rate and the minimal occurrence of new offenses by those released from pretrial custody, various other states and jurisdictions are exploring ways to adopt the LJAF tool and adapt it into their pretrial release decision-making processes; and  

Notwithstanding Kentucky’s success and the interest and emulation of other states and jurisdictions, there continues to be some opposition to using objective, pretrial risk assessment tools by certain persons, groups and organizations, the primary claims being that such instruments are not race neutral, or worse, are race-biased against minorities; 

The Kentucky Department of Public Advocacy (DPA), the statewide public defender program whose mission in Kentucky is to competently, diligently and effectively represent the indigent accused in all cases in which jail is a potential penalty, disputes such claims and objections based upon the experience it has had with the risk assessment tool in the thousands of cases in which its clients have been affected. DPA believes such claims are unfounded and refuted by the comprehensive, reliable data that has been collected.

Therefore, DPA proclaims support of objective pretrial release risk assessments, and declares:

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JOINT STATEMENT IN SUPPORT OF THE USE OF

PRETRIAL RISK ASSESSMENT INSTRUMENTS

MAY 10, 2017

The United States and all fifty states prohibit excessive bail; forty-eight states have a constitutional or statutory presumption in favor of releasing all but a specified few people before trial.[1] The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” “There is no discretion to refuse to reduce excessive bail…,” Stack v. Boyle, 342 U.S. 1, 6 (1951). “In our society, liberty is the norm and detention prior to trial or without trial is the carefully limited exception.” Salerno v. United States, 481 U.S. 739, 755 (1987).

Yet, despite the existence of the Excessive Bail, Due Process, and Equal Protection clauses, the current system of pretrial detention and release unfairly and disproportionately affects African-American and Hispanic people:
  • Statistically, African-Americans are less likely to be released on recognizance than whites.[2]
  • Historically, the rate of detention for African-Americans has been five times higher than whites and three times higher than Hispanics.[3]
  • African-Americans have money bail imposed at higher amounts than whites.[4] 

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