Ohio lawmakers set sights improving
bail system

Q: Should Ohio’s bail system be overhauled to treat suspects more uniformly regardless of income level?

By Sarah Sidlow

Fifty-seven percent: the amount of inmates in Ohio jails who are not serving
a sentence.

You read that right. According to Dayton Daily News, just over half of the people overnighting in Ohio jails are there because they’re awaiting trial—not because they’ve been convicted. That’s because in Ohio, bail amounts are assigned using pre-determined bail schedules, which means that a person’s bank account largely decides whether they can be released on bond.

What that means: “Ohio’s cash bail system leads to absurd results where a drunken jaywalker spends time in jail,” said Daniel Dew, legal fellow with the Buckeye Institute, in a written statement, “while a child rapist is released on bond only to murder the child set to testify against him.”

But State Representatives Jonathan Dever (R-Madeira) and Tim Ginter (R-Salem) are working to change that. Enter House Bill 439, which effectively overhauls Ohio’s entire bail system, laying the foundation for Ohio courts to use threat assessment tools (examining a person’s threat to society and the risk that a person will fail to appear in court) to determine bail.

Ohio’s current bail system is schizophrenic at best—left up to the counties to determine whether threat assessment tools are employed.

In Dayton, where the money-bail system is still in effect, Markcus D. Brown spent nine days in jail last May after being stopped by Dayton police at the RTA bus hub for wearing a hoodie and saggy pants. He couldn’t pay his $150 cash bail until his mother arranged for a car title loan, according to Dayton Daily News.

To many, stories like this are not only examples of grave injustice that serve to deepen a community’s financial and social divide, it’s also just an unnecessary waste of taxpayer dollars. According to Dever, it costs anywhere from $60 to $80 a day to keep a suspect in jail while awaiting trial, far less than the cost of risk assessment and supervision of freed suspects.

Dever and Ginter, who have enjoyed significant bipartisan support for their efforts, still face a long and complicated road to reform. In Ohio, municipal courts are scattered across 88 different counties (many of them containing multiple courts per county), each with slightly different approaches to the judicial process. And then there’s this ever-present elephant (no Republican jokes intended): who’s going to pay for it?

Folks in the bail bonds industry—which essentially lends bail money in exchange for a 10-percent fee, are also hesitant to get on board. And many argue the risk assessment tools on which this reform hinge are both time-consuming and subjective—not exactly high praise for the lynchpin of a paradigm shift.

Incredibly, there are also others who argue the bill doesn’t go far enough—citing that the bill would only subject suspects of misdemeanors to pretrial risk assessment, and not those charged with felonies.

Municipal courts in Montgomery and Lucas Counties have already begun experimenting with the threat assessment tools that HB 439 would make standard. In Montgomery County, the Court of Common Pleas recorded an overall 26 percent improvement in appearance rate after implementing the Ohio Risk Assessment System (ORAS). In Lucas County, which has employed the Public Safety Assessment (PSA) tool, crime committed by defendants awaiting trial has been cut in half.



Debtor’s Prison

The bail process punishes the poor for
being poor

By Don Hurst

Ohio should move away from a financial based bail system that rewards deep pockets. The bail process unduly disfavors the poor and is overly antagonistic towards minor crimes. A defendant’s bank account bears little relevance to public safety and the accused’s likelihood of returning to court.

Anyone who has read my previous articles knows I’m not soft on crime. I’m all for tougher sentences on those found guilty. But for a democratic, free society founded on the principles of liberty, we have become too comfortable with locking people up. According to the International Center for Prison Studies’ World Prison Population List the United States has the highest per capita incarceration rate in the world. I’m not sure if North Korea provided accurate numbers, but still, that statistic doesn’t do us
any favors.

We can’t call ourselves a free society with a straight face while keeping over two million people in cages on any given day. Incarceration is necessary to preserve order and protect the public, but the legal system should act mindfully. We should never shrug off the trauma of captivity or the responsibility to do it right.

I’ve arrested a lot of people and in all honesty I never thought much about it. That was until I went through a captivity training exercise with the military. “Foreign law enforcement” handcuffed me, dragged me into a cell, isolated me from friends and family and controlled everything about my existence, when I ate, when I slept, when I used the bathroom. It sucked. By the end of the week, the captivity warped our minds.

It hit me that I did that to people every day. Out of the thousands of Americans I have arrested not one failed to have a reaction. When the metal teeth of the cuffs click into place everyone changes. Some weep as if marching to their deaths, some rage and fight like caged animals, most sag in resignation. That one act strips away the freedom that makes us American. It only gets worse from there.

Zoo animals enjoy a better standard of living than pre-trial prisoners in county lock up. Privacy is gone. You crap in plain view of everyone else. You take showers with people who might want to stab you or worse. Life as you know it is over.

Don’t get me wrong. Some prisoners are animals and deserve the treatment. Accused of a violent felony? You are innocent until proven guilty but good faith probable cause means you probably are a rapist or a murderer. In the interests of public safety those people need to stay behind bars.

Can we really say the same about the guy arrested at the RTA station for wearing droopy pants and stayed in jail for nine days until his family could scrape up the bail money? How is public safety served by locking up petty, non-violent offenders
awaiting trial?

The answer is it’s not.

The bail system proves that pretrial incarceration is not about public safety. A violent felon can enjoy freedom as long as they wrangle enough cash. That defendant is still just as dangerous. It’s not like we should trust a suspected child molester hanging out at the park with bags of candy and a van full of puppies just because they paid thousands of dollars to get out of jail. That’s crazy, but that’s what our current
system says.

But if we don’t take their money how do we know they will return to face trial? You don’t and many times they won’t. Bail jumpers with Failure to Appear warrants were my bread and butter as a cop, pretty much one a day. Cops love these warrants. They are the easiest arrests because they require no paperwork. Where are these people going to run? They’re poor. They don’t have the resources to live a life running from the law. They don’t show up to court, that’s fine. We’ll catch them eventually and keep them locked up until their new court date since they’ve shown they can’t be trusted to return.

All this talk of emotional trauma and social justice might be too touchy-feely. I understand, so let’s look at the financial cost to taxpayers. According to a May 12, 2014, article in the Columbus Dispatch, each prisoner costs Ohio $22,836 a year. In Dayton, the total is between $60 to $80 a day.

Imprisoning the droopy pants guy for nine days cost taxpayers more than his $150 bail. The taxpayers would have been on the hook for more money if the guy’s mom didn’t get a car title loan to post the bond. That is a stupid amount of money, considering over half of our inmates are just awaiting trial. Reducing the prisoner population would save us millions of dollars that we could divert to public safety programs that would hopefully further reduce the inmate population, which would save us even more money that we could divert to social programs and you can see how the math adds up.

A system where a suspected child rapist can enjoy freedom because he has money and a bus station trespasser remains locked up until trial because he is poor is broken. That is not equal treatment under the law. Our criminal justice system loses legitimacy when it plays favorites.



Incognizant Release

Pay or stay

By Ben Tomkins

It’s not every day that I find myself having a debate against an opponent as well as the forum center, but I’m happy to take up the challenge as it stands anyway. There are many problems with a bail system that is driven by dollar signs. However, arguing that supervised release is an improvement over the current bail system in Ohio is, at best, a casually popular opinion.
Montgomery County standardized its bail schedule as recently as 2017, meaning that all the courts in the county would levy similar bail amounts for similar criminal accusations. There are two problems with this system. First, people who can’t afford bail have to sit in a cell because of a legally arbitrary condition of indigence. Second, the ability to pay doesn’t equate to a level of threat to the public.

On the first count, the Supreme Court just spoke up on this two years ago in Harris County, TX, and had to go over it again in June of 2017 because Harris County—in the grand tradition of Southern social progression—made no effort to fix the problem. The eponymous defendant in O’Donnell v. Harris County was cited for driving with a suspended license and had bail set at $2,500 in accordance with Harris County’s bail schedule. There was no chance she could get the money and was given no hearing to plead her “indigence.” The court identified correctly that poverty creates an unequal situation under the law. If you are poor, you could easily find yourself sitting in jail waiting for trial longer than the maximum sentence for the crime you’re accused of. This is not hypothetical, it’s exactly why the 8th Amendment exists. Throwing people in jail for several years before they get a trial is one of Putin’s favorite pastimes.

The court didn’t say that bail schedules were inherently unconstitutional, only that it was necessary to exhaust all other subjective means before imposing bail. If you can pay, they have no problem with it.

Why a few Republicans in the Ohio Assembly are choosing to ignore that fact brings us to the second point. The premier example being cited of unfair bail is a man in Ohio who was arrested with his buddy for drunken jaywalking (probably some stranger calligraphy than the letter J, actually). His friend could pay, he could not, so he sat in jail for
four days.

I agree that sucks. I agree with the Supreme Court that someone who does not have the money should receive special consideration. I agree that form of consideration should come by way of a special hearing to determine if he’s actually poor or if his wife just needs a vacation from him as badly as the people driving through that intersection did.

It is an absolutely terrible idea to substitute a subjective system for people who can afford an objective one. According to Montgomery County’s own study, the two major points of concern are failure to appear, and bail recidivism (being released and then committing a crime). The hard data says that people who are subjectively analyzed and released appear in court more frequently than people released on their own recognizance (OR) or post bail. They also have a rate of recidivism equal to that of people who post bail, but better than OR.

That’s not the whole story. The document they produced immediately qualifies the results by saying that the main reasons people in municipal court fail to appear are “transient nature of housing and employment, combined with limited access to transportation, can often be an impediment to court appearance.”
In other words, “being poor.” If you have the money to post bail, this isn’t about you. It was never about you. It’s about exactly what the Supreme Courts said it was: poverty.
And speaking of money, the Montgomery County study lists as the biggest problem of supervised release is that it is “resource-intensive.” It’s expensive to put a tracking bracelet on someone, drug test them and check in periodically, particularly given that it costs about $80 a day to keep someone in jail. It should come as no surprise that spending ten times as much to supervise people produces different results, but does it produce better outcomes?
This is the question of recidivism. The facts they present are stone cold: whether people are released on an objective bail schedule or are meticulously scrutinized by a subjective analysis, the recidivism rate is equal to a tenth of a percent at 23.1%. So if it costs a lot more, takes more time and introduces subjectivity to a legal process,
why do it?

I think I know. I took a look at Montgomery County’s pretrial screening document. It wants to know things like prior legal issues and determine if you have stable housing and a job. Great. That’s actually worth knowing. However, below that it lists a series of reasons the analyst might recommend overriding a release recommendation.

This is true. Go look it up. These forms are publically available. One of those reasons is: Ethnicity.

I’m out. Go talk to the Republicans.

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Reach DCP editor Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

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