Policy Analysis | June 2017
Bail and Pretrial Reforms in Southern States
Lawmakers in several SLC member states have enacted legislation aimed at reducing correctional populations and curtailing costs by addressing bail and pretrial options. According to the Vera Institute of Justice, 62 percent of people in jail are not serving sentences but, rather, waiting for their cases to be heard. While there are limited examples of extensive bail reform in SLC states, other pretrial options, such as court notification systems, supervision services, and other community-based programs, have been implemented. State lawmakers also have sought to increase felony theft thresholds: the monetary value that prosecutors use to categorize stolen money or property as a felony. Multiple SLC states have enacted legislation detailing methods for collecting fines and fees from indigent defendants, for example, through individualized payment plans, reduced and/or deferred fines, or community service in lieu of owed payments. The information below reflects the trends in policies relating to bail reform and pretrial processes in SLC states.
Jail population by conviction status
Source: Prison Policy Initiative (accessed June 22, 2017)
Median annual pre-incarceration incomes for people in local jails unable to post a bail bond, ages 23-39, in $USD (2015), by race/ethnicity and gender.
Note: The median bail bond amount nationally is almost a full year’s income for the average person unable to post a bail bond.
Source: Prison Policy Initiative (accessed June 22, 2017)
Of the SLC member states, the most comprehensive bail reform has been in Kentucky, in the form of centralized pretrial programs (of note, the District of Columbia and New Jersey also have authorized similar programs). In 2011, Kentucky lawmakers passed the Public Safety and Offender Accountability Act, or House Bill 463. The legislation implements several pretrial reforms including: a deferred prosecution program for first or second offenders, pretrial risk assessment in determining conditions for bail, and evidence-based practices for contractors providing intervention services. Further, the bill directs the state Department of Corrections to develop an online system of state statistics on offenders to provide courts, attorneys and other relevant parties with objective information to be used in plea negotiations and sentencing. The language in House Bill 463 also directs the state Supreme Court to establish guidelines for the release of moderate- and high-risk defendants with supervision in lieu of cash bail or pretrial detention. Kentucky is one of several states that has received technical assistance and support from The Council of State Governments’ Justice Center through the Justice Reinvestment Initiative, a public-private partnership that includes the U.S. Department of Justice’s Bureau of Justice Assistance, The Pew Charitable Trusts, Crime and Justice Institute, Vera Institute of Justice and other organizations.
(See pages 15-18, 25-30, 37, 48 and 65 of bill text)
"2011 Kentucky Reforms Cut Recidivism, Costs," The Pew Center on the States, July 2011
"Lessons from the States: Reducing Recidivism and Curbing Corrections Costs Through Justice Reinvestment," The Council of State Governments' Justice Center, April 2013
Arkansas lawmakers passed the Public Safety Improvement Act in 2011, which requires the Department of Corrections to conduct a risk-needs assessment — a report that measures an offender’s criminal risk factors and individual needs — intake and use the results to assign pretrial programming or conditions for supervision. The bill also strengthens reporting requirements and administrative processes for discharge from probation or parole.
(See pages 83 and 95 of bill text)
Alabama House Bill 494 (2013) allows the district attorney to delegate authority and discretion for recommendation and enrollment in pretrial intervention programs to the presiding judge. All discretionary powers over any acceptance, denial, dismissal, and completion of any pretrial intervention program candidate or enrollee reside with the district attorney and presiding judge of the court. With regard to probations, if the court finds that the defendant is unable to pay the supervision fee, it may, in lieu of a monthly probation supervision fee, require the defendant to perform community service. The legislation also establishes additional criteria that may allow an offender to enter a pretrial diversion program.
Louisiana House Bill 249 (2017), signed into law by Governor John Edwards on June 15, 2017, allows judges to reduce or waive fines when offenders cannot afford the payment or when it presents a financial burden on an offender’s dependents. The law also allows for the creation of monthly payment plans for defendants, based on their ability to pay. Judges also are prohibited from extending the probation period of a convicted offender even if they have unpaid fines and fees.
Texas Senate Bill 1913 (2017) , signed into law by Governor Greg Abbot on June 15, 2017, includes numerous provisions relating to court administration and defendants, including: payment of fines and costs by indigent defendants, performance of community service in lieu of paying fines, and repeal of certain fees. The legislation requires courts to inquire whether the defendant has sufficient resources or income to pay all or part of the fine and court costs. If the court determines that the defendant cannot pay immediately, the legislation provides alternatives to detainment. The bill also restricts the usage of “capias pro” fines: warrants issued when a person misses a payment deadline or community service obligations.
Mississippi approved comprehensive sentencing and corrections legislation in 2014 that enhances clarity in sentencing and prioritizes prison space for violent and career offenders. House Bill 585 expands judicial discretion by authorizing alternatives to incarceration for non-violent offenders, strengthens supervision and programs to reduce recidivism, and establishes performance objectives and measures. The legislation also made changes to felony threshold amounts.
(See pages 4, 12, 48 and 52 of bill text)
West Virginia lawmakers, in 2014, passed Senate Bill 307, which authorizes community corrections programs to operate pretrial release programs. Senate Bill 307 was crafted with recommendations from The Council of State Governments’ Justice Center report, Analyses and Policy Options to Reduce Spending on Corrections and Reinvest in Strategies to Increase Public Safety.