In winter and spring of 2014, Jennifer Roth testified before Kansas House and Senate committees against a bill that would redefine a defendant’s right to a speedy trial from 90 to 150 days.
A Lawrence resident who is a practicing defense attorney in Shawnee County, Roth is also the volunteer lobbyist for Kansas defense attorneys. Roth said she testified against the proposed bill because it would force defendants awaiting trials and unable to afford bond to spend more time in jail cells. Although that concern for defendants was the primary point she made to lawmakers, she also testified it would increase the costs for Kansas counties as defendants spent more time in cells waiting for their cases to be resolved.
Perhaps you are surprised that a defense attorney was arguing against a change that could make the court process longer. You know, bill by the hour and all. But Roth was the lone voice of opposition at committee hearings, while a multitude of groups filed in to support the bill.
The Kansas Attorney General, the Kansas County & District Attorneys Association, the Kansas Sheriffs' Association, the Kansas Association of Police Chiefs and the Kansas Peace Officers Association all testified in support of the bill. The Kansas Association of Counties took a neutral stance on the bill, but did note it would increase jail costs.
Thus far, Roth’s testimony has been on the mark for Douglas County, where the jail population started to rise in the wake of the bill becoming law July 1, 2014.
Douglas County Sheriff Ken McGovern and his office have been some of the loudest voices calling for a $44 million jail expansion to combat the rising inmate population. McGovern, however, also is a member of the Kansas Sheriffs' Association, although he did not directly testify about the bill in 2014. Attempts to get a comment from McGovern about what stance he took on the bill in 2014 were unsuccessful.
Although McGovern and Undersheriff Gary Bunting say there are other factors to the jail’s population now exceeding its 186 beds — such as an increase in more serious felony crimes that tend to take longer to prosecute, as well as the county’s overall population growth — they do point to the speedy-trial redefinition as a factor.
“I was right,” Roth said. “People shouldn’t sit in jail longer. People who can’t bond out are sitting in jail now twice as long.”
Former Kansas Sen. Jeff King, an Independence Republican who chose not to seek re-election in 2016, said he wrote and introduced the bill in the Senate. Roth gave testimony before the Senate Corrections and Juvenile Justice Committee he chaired. The bill was in response to what he said was a situation unique to the state that was putting prosecutors in an impossible situation.
“The 90-day speedy trial requirement in Kansas was the shortest in the nation,” he said. “Constitutionally, the U.S. Supreme Court has said 150 days meets the standard of a speedy trial.”
The bill was written after a review of speedy trial standards in other states, King said. It was also written to address what he was hearing from law enforcement officials and prosecutors, whose statewide associations would later testify before his committee, he said.
The goal was to produce a bill that would move trials along in a speedy manner, while assure law enforcement that prosecutors had the time needed to process evidence, King said.
“It was just a way to ensure crime lab delays or other inevitable delays didn’t prevent people from being brought to justice,” he said. “It was especially an issue with crime lab delays, and in smaller counties with just one prosecutor who had to deal with multiple cases.”
As a result of the delays, criminal cases were being dismissed because prosecutors missed the 90-day speedy trial deadline, King said.
“That was an argument we heard over and over again,” he said.
He never received any negative feedback regarding the bill, King said, other than Roth’s testimony. The first critical comments that ever came to his attention were those he read in the Journal-World from Douglas County Sheriff’s Office officials concerning the bill’s effect on the county jail population, he said.
Roth said the bill passed out of the Senate and was sent to a House committee of Olathe Rep. Lance Kinzer, who left the Legislature in 2014. It died in Kinzer’s committee without making it to the House floor. It was salvaged when a conference committee of King and Kinzer’s committees attached it to another bill late in the 2014 legislative session, Roth said. Its passage received little public attention at that point.
Nothing in the law requires court systems to use the full 150 days, but as the deadline has expanded, the number of long pending cases has increased in Douglas County District Court. So, too, has the jail’s population.
According to statistics from the Douglas County Sheriff’s Office's annual report, in 2013 — the year before the speedy trail change began — the average daily population of the Douglas County Jail was 138 people. That’s well below the 186-bed capacity.
That average increased to 171 in 2014 and to 194 in 2015. In 2016, the average daily population soared to 238. The jail’s average daily population has exceeded its number of beds every month since June 2015.
Statistics from the Kansas Judicial Branch — which oversees all the district courts in the state — show the number of cases taking more than a year to dispose of has grown.
In fiscal year 2014, which ended June 30, 2014 — or just one day before the new speedy trial definitions became effective — there were 500 felony cases filed in Douglas County District Court. At the end of the year, of the felony cases still pending, 4.6 percent of them were filed more than 12 months earlier.
Fast forward to fiscal year 2017 and 590 felony cases were filed in Douglas County District Court. The percentage of felony cases pending for more than a year had grown to 12.8 percent. That marked the third consecutive year the percentage of felony cases pending for more than a year had increased.
Worth noting is that the number of felony cases filed in the county has grown two out of the last three years — totaling 538 in 2015, 625 in 2016 and 590 in 2017.
Undersheriff Bunting said those serving increased pretrial time in the county jail tend to be those awaiting trial on felony charges that take longer to prosecute.
Douglas County is not alone in having large numbers of felony cases. However, the statewide numbers show that Douglas County District Court does have one of the higher percentages of felony cases that are pending for more than a year.
Of the 31 judicial districts in the state, Douglas County District Court had the sixth highest percentage of felony cases that have been pending for more than year; however, Douglas County had the highest percentage among the five urban counties in the state. In several instances, Douglas County’s rate was significantly higher than many other urban counties. Here’s a look at the largest counties in the state:
• Shawnee County: 3.9 percent more than 12 months;
• Johnson County: 8.6 percent more than 12 months;
• Sedgwick County: 11 percent more than 12 months;
• Wyandotte County: 6.5 percent more than 12 months
County voters soon may be asked how much they want to spend, and raise their taxes, to address the jail issue. County commissioners later this month will consider putting on the ballot a half-cent sales tax increase to partially pay for a $44 million jail expansion.
Roth said she wishes state legislators would have been more thoughtful with the votes they took in 2014 to increase the speedy trial time. She takes no pleasure in being proven right.
“This happens all the time, where I go and say, 'This is what is going to happen if you do this.' They know it, and I know it, but they go ahead anyway,” she said.