Kansas Supreme Court again strives to build momentum for pretrial detention reform

Chief justice appoints panel to devise plan for implementing 2020 recommendations

TOPEKA — The Kansas Supreme Court moved to jumpstart implementation of recommendations for reforming pretrial supervision and detention practices to better balance the rights of people charged with a crime and the imperative of public safety.

The order creating a 15-member advisory committee of judges, court services officers, prosecution and defense attorneys, and law enforcement and community corrections officers was signed Wednesday by Supreme Court Chief Justice Marla Luckert.

The panel was directed to advise the judicial system on advancing 19 proposals formulated by a task force in November 2020, just before the catastrophic COVID-19 pandemic swept the nation.

“We want to ensure defendants appear in court, but we must operate from a presumption of innocence and liberty, not from a presumption of guilt and preventive detention,” Luckert said.

The original task force that issued the recommendations was created in 2018 in response to concern that more than half of local jail inmates in Kansas hadn’t been convicted of a crime, but were incarcerated because they couldn’t post a monetary bond. Motivation for change in the state’s district courts was driven by the perception pretrial practices discriminated against the poor.

The task force acknowledged pretrial detention could be devastating for defendants who risked losing jobs, homes and families. The task force said most Americans favored limits on pretrial incarceration, especially for individuals accused of nonviolent or misdemeanor offenses.

Karen Arnold-Burger, chief justice of the Kansas Court of Appeals, chaired the task force and was appointed by Luckert to lead the newly formed advisory committee.

“We must consider other options that respect defendants’ freedom and financial situation while also upholding public safety and ensuring they show up for court,” Arnold-Burger said.

The committee was directed to devise for the Supreme Court a plan for creating a system for educating judges, lawyers and others about best practices on pretrial release. Their agenda included development of an assessment tool for guiding pretrial supervision. The committee was asked to figure out how to collect data on pretrial releases, revocation of release orders and failures to appear in court.

In addition to Arnold-Burger and Court of Appeals Judge Jacy Hurst, the committee’s membership included District Judges Amy Hanley, of Douglas County, and Jennifer Brunetti, of the 11th Judicial District; District Magistrate Judges John McEntee and Ron Sylvester; and court services officers Spence Koehn, Bree Gibson, Stephanie Springer and Kevin McGuffin.

Other members: Thomas County defense lawyer Justin Barrett; Kansas State Board of Indigents’ Defense Services executive director Heather Cessna; Leavenworth County Attorney Todd Thompson; Sedgwick County Sheriff Jeff Easter; and Robert Sullivan, director of Johnson County Community Corrections.

In the report forwarded to the Supreme Court in 2020, the task force said district and municipal courts should strive to view pretrial release as the norm and detention a “carefully limited exception.” The report suggested Kansas law should be amended to make use of uniform notices to appear rather than arrest people for nonviolent misdemeanor offenses.

“It is estimated that less than 5% of arrests made in the United States are for violent offenses,” the task force said. “By diverting defendants charged with nonviolent crimes from the arrest and jail process, law enforcement and courts can spend more time dealing with the defendants charged with violent offenses.”

The task force report encouraged law enforcement agencies to work with community mental health organizations to identify and refer offenders with mental health or substance abuse issues. As many as 80% of defendants in the Kansas criminal justice system were there because their crime was directly or indirectly related to illegal drugs, the report said.

“State funds earmarked for drug treatment and evaluation should be available for use by persons in diversion programs for drug-related offenses,” the report said.

The task force proposed Kansas increase access to appointed defense counsel after arrest. The task force said there were anecdotal reports some Kansas judicial districts kept people in jail pending the filing of formal charges “longer than necessary or constitutionally allowed” due to lack of adequate staff in local prosecutor offices.

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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