Bail and Banishment

Mar 23

Some courts have started adding a “do not return to Kentucky” requirement for non-Kentucky residents as a condition of their bail. The court allows the defendant to meet with legal representatives and to meet all required court dates. Whether one views this as a type of interstate banishment or merely a small travel restriction depends on one’s point of view. This does bring up several questions for legal analysis. Is such a requirement properly within a judge’s discretion? What would likely happen if a defendant violated this travel restriction? These are not merely academic questions because judges are actively making these restrictions as a part of bail in Kentucky.

The Kentucky Constitution limits excessive bail[i] and grants the right of bail secured by sufficient securities to all criminal defendants except for capital offenses.[ii] This state constitutional right for bail only applies prior to trial; after conviction, statutes strictly control bail.[iii] While the defendant has an interest in obtaining bail, the commonwealth has a strong interest in ensuring the defendant will appear to resolve the charges before the court.[iv]

A series of statutes and rules of criminal procedures lay out the bail process for judges. Under KRS § 431.066, the court considers whether a defendant is a flight risk, likely to appear for trial, or likely to be a danger to the public if released.[v] Pretrial services will interview and assess the defendant using the Kentucky Pretrial Risk Assessment Tool.[vi] The court will then use this assessment along with a list of charges and the incident description to set bail for a defendant.[vii] The court has discretion to determine if a defendant is likely to appear if released.[viii] The court should release defendants who are likely to reappear on their own recognizance or an unsecured bond.[ix] All conditions for pretrial release will be in writing and signed by the defendant who will receive a copy.[x] The overall goal is to impose the least onerous conditions needed to ensure the defendant’s appearance as required.[xi]

Kentucky distinguishes between bail and pretrial release.[xii] Bail involves some type of monetary security and may have additional conditions.[xiii] The court at the time of releasing a defendant from custody is required to note whether it is a bail situation or a pretrial release.[xiv] The importance is related to whether time on home incarceration counts as time served for any subsequent sentence.[xv] The Kentucky State Supreme Court ruled the General Assembly intended this distinction in Weaver v. Commonwealth.[xvi] The Court stated that constraint incidental to release on bail would include restrictions on travel, dwelling locations, or with whom the defendant could associate with.[xvii]

The Kentucky process described above shows the judge has broad discretion on whether to release a defendant from jail. This discretion includes the possibility of travel and dwelling restrictions, while the case is adjudicated. The judge must balance the Kentucky Constitutional right of bail against assurance the defendant will return to court. To understand if banishment from the state remains within this discretion, we turn to the case law.

The first case of interest comes from Weigand v. Commonwealth, where Mr. Weigand pled guilty to passing bad checks.[xviii] The trial court suspended his two-year sentence provided the defendant “remain out of the country.”[xix] Mr. Weigand was a German national who at the time of his conviction had a pending issue on his immigration status.[xx] The appellate case arose when he did not leave the country and argued to the court that banishment from the country was void from the beginning.[xxi] The appellate court noted this problem had never before arisen in the state.[xxii]

There were two important court rulings in this case. First, the court noted the analogous situation between when a defendant’s sentence is suspended and the defendant is banished from the state.[xxiii] Second, the commonwealth conceded and the appellate court noted it is beyond the power of the court to “inflict banishment as an alternative to imprisonment.”[xxiv] However, even though a condition of probation was invalid, this does not mean the conviction and sentence were void.[xxv] The defendant could have appealed the original order but instead accepted and then subsequently violated the condition.[xxvi] The defendant had counsel who presumedly knew the limitations of the authority of the trial court.[xxvii] Based on this reasoning, the Kentucky Appellate Court upheld the probation violation and affirmed the decision to send Weigand to prison to serve out his sentence.[xxviii]

The most recent case on Kentucky travel restrictions is Roberts v. Neace, where citizens challenged among others, COVID quarantine requirements for out-of-state travelers.[xxix] The district court noted that to restrict a fundamental right, such as interstate travel, the government must show the restriction is narrowly tailored to serve a compelling government interest.[xxx] The right to travel freely from one state to another is “virtually unconditional” and is fundamental to our concept of the Federal Union.[xxxi] The court found the travel restriction unconstitutional and entered a preliminary injunction against the practice.[xxxii]

The case most on point occurred in 2010 with Butler v. Commonwealth, where the court reviewed banishment from the state as a condition of probation.[xxxiii] Lakinda Butler pled guilty to possession of marijuana and received a twelve month sentence probated for two years.[xxxiv] When she informed the court she lived in Memphis, Tennessee, the court, as part of her probation, banished her from Fayette County except to pay fines.[xxxv] The Defendant acknowledged to the court that she discussed this with her attorney and understood the condition.[xxxvi]

Less than a year later, Butler was arrested at a preliminary hearing for a friend in Fayette County.[xxxvii] Because she violated her terms of probation, she was ordered to serve her twelve-month sentence.[xxxviii] Butler appealed the decision claiming the banishment requirement violated her fundamental right of free travel.[xxxix]

The Kentucky Court of Appeals made several important observations on this case, relevant to the discussion at hand. First, that a court grant of probation in lieu of prison time is a privilege, not a right.[xl] A person may remain a probationer; but only as long as the trial court is satisfied, she has not violated the terms of the probation.[xli] The court noted Kentucky courts have no authority to impose banishment on someone as a condition of probation instead of imprisonment.[xlii] However, because Butler did not challenge the invalid banishment condition at the time she accepted probation, she must serve her sentence.[xliii] Butler effectively waived her right of free travel.

The case law is consistent on two points. The judge does not have authority to place interstate travel restrictions on defendants as a part of probation. Secondly, the defendant must register an objection at the time the judge imposes the condition. A defendant who benefits from and accepts this improper condition waives their right to future objections.

The lesson here seems obvious. There is an obvious analogy between banishment as a condition of probation and banishment as a part of bail. The onus is on the defense attorney to object at the time the court imposes banishment as a condition of bail. Clearly, no defendant would prefer to stay in jail to appeal a banishment bail requirement. Yet to protect the defendant’s right, the attorney must register the objection when the banishment is imposed. Perhaps the best approach is to object on the record and ask the judge to release the defendant with the condition remaining in place, pending resolution of that single condition of bail.

Until challenged in court, there is no incentive for judges to stop. Based on the above precedents, the successful challenge will require an on-the-record objection at the time the judge imposes banishment, but before the defendant accepts bail. The difficulty will be in convincing the court to allow the defendant to conditionally accept the banishment as a part of the bail release. At that point, the appeal will likely succeed.

[i] Ky. Const. § 17.

[ii] Ky. Const. § 16.

[iii] Braden v. Lady, 276 S.W.2d 664, 666 (Ky. Ct. App. 1955).

[iv] Commonwealth v Carmen, 455 S.W.3d 916, 926 (Ky. 2015).

[v] Ky. Rev. Stat. Ann. § 431.066 (West 2012).

[vi] Alex Albright, If You Give a Judge a Risk Score: Evidence from Kentucky Bail Decisions, 85 Harvard John M. Olin Fellow's Discussion Paper, 10 (Mar. 4, 2019).

[vii] Id. at 9.

[viii] Ky. R. Crim. P. 4.10.

[ix] Id.

[x] Ky. R. Crim. P. 4.14; Ky. Rev. Stat. Ann. § 431.520 (West 2014).

[xi] Ky. R. Crim. P. 4.12.

[xii] Ky. Rev. Stat. Ann. § 27A.360 (West 2022).

[xiii] Id.

[xiv] Id.

[xv] Weaver v. Commonwealth., 156 S.W.3d 270, 271-72 (Ky. 2005).

[xvi] Id.

[xvii] Id. at 272.

[xviii] Weigand v. Commonwealth, 397 S.W.2d 780 (Ky. 1965).