By Lauren Smith
KANSAS – Nationally, about two thirds of local incarcerated population have yet to be convicted of a crime, meaning that the jail population is predominantly people awaiting trial or who cannot post bond. Kansas sits slightly lower at 53 percent.
Pretrial release issues have been brought to national attention due to concerns over increasing jail populations, discrimination in pretrial practices and other high-profile incidents.
In November 2018, the Kansas Supreme Court created the Ad Hoc Pretrial Justice Task Force (Task Force) charged to “review current pretrial detention practices in Kansas and elsewhere; review alternatives to detentions; and determine what lessons can be learned from other jurisdictions that have already tackled these issues.”
Members of the Task Force consisted of judges, prosecutors, members of the court administrative staff and criminal defense attorneys.
After six months, the Task Force created a list of recommendations of “best practices” for judges to use.
According to the summary of recommendations, the best approach to remind judges, prosecutors and defense attorneys of “the core constitutional principles at the heart” of the criminal justice system is thorough education.
The Task Force also recommended collecting criminal case data related to different types of pretrial release and design reports to help understand the impact changes to the pretrial system have made and where more change can be made.
About five percent of arrests made nationwide are for violent offenses; by diverting defendants charged with nonviolent crimes from jail, courts and law enforcement can focus more time and energy on defendants charged with violent offenses, the study noted.
The Task Force stated that while its role was not to make recommendations on what crimes should be prosecuted, it believes that amending statues concerned with nonviolent crimes such as marijuana possession and driving without a license “would facilitate discretionary use of notices to appear in situations in which they are not currently allowed.”
When it comes to mental health identification, the Task Force encouraged law enforcement to work with mental health organizations to “refer offenders” to the appropriate mental health or substance abuse resources.
In order to help support better treatment of those with mental health issues and substance abuse problems, the Kansas Legislature adopted the Crisis Intervention Act in 2017 that allowed officers to take offenders to a crisis intervention center instead of a jail. Unfortunately, there has yet to be draft regulations so there are no licensed crisis intervention centers to date.
The Task Force strongly recommended to issue regulations so that crisis centers are licensed and can “assist in diverting those with mental illness or substance abuse issues from detention to treatment.”
Additionally, the Task Force stated that there needs to be increased funding of the Larned State Hospital (LSH). LSH is a hospital that determines the competency of a defendant to see if they are fit to stand trial.
This process has a “very long wait time” resulting in the “unnecessary detention of defendants who require mental health treatment.” With more funding, the Task Force stated there would be more timely admission for competency decisions.
The Task Force also included recommendations specifically to pretrial release including a launch of a pilot program to assess pretrial risk. The program would consist of “a representative cross-section of jurisdictions across the state, with some jurisdictions utilizing a scored and validated pretrial risk assessment tool, and others using a form with the same information but no algorithm-based score.”
As for missed court appearances, the Task Force recommended that the courts implement a text message reminder system to help combat failures to appear. They also said courts should give defendants a chance to voluntarily report after missing a court date before judges issue a bench warrant.
Lastly, The Task Force suggested an amendment to the Kansas Constitution. The Kansas Legislature should consider amending the Kansas Bill of Rights by exploring whether or not judges should be allowed to detain people who are not accused of capital offenses with bond until trial.
The Full Task Force report can be found here.
Lauren Smith is a fourth year student at UC Davis, double majoring in Political Science and Psychology. She is from San Diego, California.
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