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Kansas Judicial Center, 301 SW 10th Ave., Topeka

Story updated at 3:17 p.m. Thursday, Sept. 10:

On the one hand, defendants in criminal cases — who are presumed innocent — shouldn’t be detained in jail just because they can’t pay to get out; on the other, those who are dangerous but wealthy can be held without bond only if they’re suspected of capital crimes.

Those were two of the key viewpoints that the Kansas Supreme Court’s ad hoc pretrial justice task force highlighted during a virtual public forum Wednesday afternoon.

The task force of 15, created in November 2018, is to examine current pretrial detention practices statewide, compare them to other courts and study alternatives that ensure public safety and encourage defendants to come to court. It recently released a 150-page draft of its report, which is due in final form in November, along with multiple appendices.

Karen Arnold-Burger, chief judge of the Kansas Court of Appeals, largely facilitated the meeting. She said the task force has been doing a deep dive into the subject for two years but could probably continue for another two years.

Much of the discussion Wednesday focused on the issues judges face regarding setting defendants’ bail bond. Task force members noted guiding principles: “Liberty is the norm and detention should be the exception.” The report and appendices also note that judges should consider whether nonmonetary conditions of release are sufficient without requiring a monetary bond, and that conditions should be the least restrictive necessary to ensure public safety and court attendance.

Arnold-Burger said a vast majority of defendants don’t reoffend or commit violent offenses while they’re on bond as their cases are pending. Judges must weigh the risk, but they also must consider the risk of keeping defendants in jail and depriving them of their freedom when they’re presumed innocent.

However, the rare occurrences do tend to make national headlines, Arnold-Burger said.

That’s one reason that the 19th and final task force recommendation is a suggestion that the Kansas Legislature gather stakeholders to consider amending the Kansas Bill of Rights to “allow a judge to preventatively detain a defendant who has been determined — after a full due process hearing — to be a danger to self or others or presents such a serious risk of flight that no condition of release could adequately address either risk.”

The task force members did not mention a particular case, but one that the Journal-World covered ended in tragedy in May. A defendant charged with burglarizing the same Lawrence cigar shop on three occasions bonded out of jail multiple times despite the ever-increasing bail amounts the judge set — ultimately, a total of nearly $450,000 in surety bonds.

Despite pleas from the man’s family members, who said he had serious substance use problems and was a threat to their safety and others’, the judge could not hold him without bond because he had not been charged with a capital crime, meaning a crime that carries the possibility of a death sentence. The defendant was killed during a shootout with an Overland Park police officer, Mike Mosher, who later died at a hospital from injuries he suffered.

Shane Rolf, executive vice president of the Kansas Bail Agents Association, said Wednesday that his group’s position on a constitutional amendment has not changed — they oppose it, and they don’t think that the task force or Kansas judges “should get into the business of calling for changes to the Kansas Constitution,” according to written comments in the report.

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Task force members raised other concerns and cited other barriers to improving functions of the criminal justice system. Some of those included a lack of funding for mental health services; extensive wait times — nearly a year, in many cases — for defendants to receive competency evaluations at state hospitals; and a lack of measurable data for tracking things such as failures to appear.

The Douglas County Criminal Justice Coordinating Council on Tuesday heard a presentation on failures to appear, or FTAs. Arrests for FTAs alone, with no other offenses, constitute 21% of bookings into the Douglas County Jail, according to the report. However, there’s no single method of tracking FTAs used statewide that would allow the task force to compare effectiveness of programs that aim to boost court attendance.

A few other recommendations in the task force’s report include:

• Law enforcement should be encouraged to adopt uniform standards for issuing notices to appear or citations in lieu of making arrests.

• People in diversion programs, which can allow usually first-time offenders to avoid prosecution for some offenses, should be allowed state funds for treatment programs. One task force member commented that some defendants will plead guilty to drug offenses so that they can access the funds.

• Courts should provide opportunities for defendants to voluntarily report after a missed court date before issuing a bench warrant.

• The courts should implement text message reminders of court dates.

The task force will hold another public forum from 5 to 7 p.m. Sept. 24. Register to attend at bit.ly/09242020forum. The draft reports are available via kscourts.org.

Douglas County District Attorney Charles Branson is a member of the task force. He said he had a prior engagement and could not attend Wednesday’s public forum, but he will participate in the second one.

Related coverage

• May 5, 2020: Douglas County court had issued warrant for suspect who died in shootout that also killed Overland Park police officer