Judge: Balancing defendant’s liberties, public safety essential in pretrial justice

By: - October 2, 2020 8:38 am
Members of the Commission on Racial Equity and Justice express an interest Thursday in increasing diversity of listening session communities. (Noah Taborda/Kansas Reflector)

Several members of the Commission on Racial Equity and Justice questioned the Kansas Fraternal Order of Police’s willingess to answer tough questions in an forthcoming listening session. (Noah Taborda/Kansas Reflector)

TOPEKA — A leading Kansas appellate judge said finding a balance between pretrial restrictions that are fair to the defendant’s liberties and maintaining public safety is a task judges in the state have long struggled with.

Karen Arnold Burger, chief judge for the Kansas Court of Appeals, said many judges fear lenient restrictions may result in the defendant not appearing for court, or worse, reoffending.

Unfortunately, pretrial restrictions are an issue past “solutions” have failed to address in Kansas.

“What we’ve done here for years is we have thrown out these ideas like let’s make them do treatment or put them on a monitor and we haven’t really done any follow up to say if that worked,” Burger said.

Burger, chairwoman of the Pretrial Justice Task Force, stressed the need for evidence-based restrictions and increased data collection on the effectiveness of those restrictions Thursday as she shared the task force draft report with the Kansas Commission on Racial Equity and Justice.

One recommendation Burger made to help reduce pretrial detention was some sort of public education initiative to show most defendants out on bail will not commit a crime, let alone a violent offense. She said this fear is at the heart of why many judges may set overly restrictive pretrial detention or bond.

“They fear if they set a low bond, the person commits a violent offense and the next morning it’s in the front page of the paper that this judge let this person go,” Burger said. “Those situations are rare. They just tend to make the news all the time.”

Only 20 of every 100 people in front of a judge will either fail to appear in court or commit a crime before their trial date, Burger said. Despite the relatively low risk most offenders pose for reoffending before their trial, pretrial detainees make up a large portion of those incarcerated across the country, she said.

According to a 2017 report from the Prison Policy Institute, the 2013 U.S. prison population consisted of 453,200 pretrial detainees. In the same year, the number of people convicted in prison was 278,000.

One change Burger said would make a difference in those numbers was a more robust public defender system that allowed for an attorney to be provided during their first hearing. Burger pointed to a striking shortage in most rural areas, like western Kansas, which only has two public defenders covering the area.

Wyandotte County District Attorney Mark Dupree noted his own home county, one of the most highly populated in the state, lacks a public defender. According to Burger, there are 26 prosecutors in Wyandotte County.

“It puts defendants at a disadvantage, but then it puts the taxpayers in a place where we’re paying a lot of money to hold individuals in custody that I believe with the proper defense before they go before a judge wouldn’t be in custody,” Dupree said.

In order to make these reforms, Burger said, the state needs to collect more data to demonstrate the failings of current pretrial efforts.

“If we are going to address the failure to appear, we need to know what that failure rate. We’re not gathering that kind of information,” Burger said. “There needs to be comprehensive data collection between prosecutors, public defenders, jails, law enforcement, and the courts if we are going to address these issues.”

Without the data, however, the perception of pretrial detainees as dangerous criminals will be hard to dispel, Burger said.

She described it like an “Alice in Wonderland” scenario. If a judge holds someone in jail on a bond they cannot afford, it is impossible to prove they would have complied on a lower bond, but when someone comes out and commits a crime, people will say they should have been held, Burger said.

“You can’t prove a negative,” said Mark McCormick, of the American Civil Liberties Union of Kansas.

The commission will take recommendations from these reports into account when finalizing their own recommendations in a December report to Gov. Laura Kelly.

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Noah Taborda
Noah Taborda

Noah Taborda started his journalism career in public radio at KBIA in Columbia, Missouri, covering local government and producing an episode of the podcast Show Me The State while earning his bachelor’s degree in radio broadcasting at the University of Missouri School of Journalism. Noah then made a short move to Kansas City, Missouri, to work at KCUR as an intern on the talk show Central Standard and then in the newsroom, reporting on daily news and feature stories.