But of the Brown case he said,“This seems like an unfortunate situation for sure.”
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Judges, public defenders and citizen groups say cases like Brown’s illustrate the dire need for bail reform across Ohio.
“I think cases like this happen all the time and not just in Ohio courts but in courts all across the country,” said Cleveland Municipal Court Judge Ronald Adrine, whose court will switch to a new bail system next month. “There has been a wellspring of reform that has taken hold across the country as we’ve come to recognize that the way that we’ve been doing business over all these many years is at its base unconstitutional.”
Bail has two purposes: make sure the accused show up for court and protect the public from harm.
Ohio Supreme Court Chief Justice Maureen O’Connor, a Republican who is working on a national bail reform effort, said the perfect irony is that successful drug dealers facing multiple criminal charges are able to post bail while poor people accused of far less serious crimes aren’t.
”They sit in jail until their case is called. That’s the inequity of the whole thing,” O’Connor said. “Why are they sitting in jail? Because they’re too poor. It’s tied to their economic status and you can’t constitutionally allow that to happen.”
O’Connor and Adrine are pushing for reforms alongside groups such as ACLU of Ohio, Buckeye Institute, Alliance for Safety and Justice and Justice Action Network and local officials including Montgomery County Commissioner Dan Foley, Public Defender Rudy Wehner and others.
Adrine said: “When you have a system that causes people in large measure to have to spend time in jail — maybe up to 50 to 60 percent of folks that are held in local jails are there solely because of the fact that they don’t have the money to make bond, not because they’ve been proven guilty of anything — that just flies in the face of true justice and the American way.”
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The scope of the problem — poor people in jail because they can’t afford bail — is unknown. And O’Connor said courts need better data collection to answer such questions.
A report published in March by the Ohio Criminal Sentencing Commission said 35.4 percent of local jail inmates are there awaiting trial. Adrine and others peg it even higher. The ACLU of Ohio expects to release a study later this year on the bail system.
“The best we know is that on any given day there is just under 500,000 unconvicted people in jail across the country,” said Jenna Moll, deputy director of the Justice Action Network.
Jailing people isn’t cheap. Montgomery County, which has a 900-bed jail, budgeted $17.1 million in 2017 for prisoner housing — or about $52 per day per bed.
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Locking up people too poor to make bail also carries intangible costs. If you’re stuck in jail, you’re likely to lose your job, be evicted and face other disruptions.
Wehner said public defenders routinely see clients anxious to plead guilty in exchange for time served just so they can get out of jail and get on with life.
“The push to get out of jail — get me out, get me out, get me out — and trying to persuade a younger person that the state can’t make the case or you have a good case, you just have to sit a little while longer. The answer is almost always ‘No, just get me out. I’ll plead to anything,’” Wehner said.
Once that happens, Wehner noted, they have a criminal record, which makes it harder to find jobs and housing.
“If you can’t get it expunged, you have to live with it. That is something that will dog you for the rest of your life,” O’Connor said. “So, it’s punitive and it’s punishing people for being poor and that’s what has been the wake up call across the courts and the judiciary on this.”
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The Ohio Criminal Sentencing Commission earlier this year made a number of reform recommendations, including that courts use a risk assessment tool rather than monetary guidelines to determine who should be released pending trial.
Some courts already use risk assessment tools. In Montgomery County Common Pleas Court, employees show up to work at 5:30 a.m. six days a week to run records checks, see defendants by video conference and assess who is at risk for fleeing or committing another crime if they are let out of jail, said Vanessa Carter, deputy court administrator.
They do this for everyone charged with a felony or violent misdemeanor — about 7,500 people each year, Carter said. Her staff plugs in defendant data, such as previous court skips, prior convictions, substance abuse issues, and the risk assessment tool spits out a ranking of low, medium or high. The information is given to the judge, who then sets bail.
But most municipal courts across the state do not use risk assessment tools for people facing non-violent misdemeanors; bail for people like Markcus Brown is typically based on a monetary schedule.
In January 2015, Lucas County began using a risk assessment tool developed by the Laura and John Arnold Foundation and overhauled its pretrial system. The Arnold tool takes in factors such as type of offense, the defendant’s criminal history, age, and previous court skips.
Results reported in August 2016:
- The number of releases without the need for bail nearly doubled from 14 percent to almost 28 percent of all cases;
- Arrests of pretrial defendants for other crimes dropped from 20 percent to 10 percent; and
- The percentage of people skipping their court dates decreased from 41 percent to 29 percent.
Cleveland Municipal Court is expected to start using the same risk assessment tool next month.
“If we can show that we can put the right people in jail and let the right people out of jail, that we can save money doing it and follow the constitution, then this should be a no-brainer to go to different jurisdictions across the state,” Adrine said.
But Woody Fox, vice president of the Ohio Bail Agents Association and a bail bondsman based in Columbus, cast doubt on bail reform and how much money it might save.
Noting he was not speaking on behalf of the association, Fox said jail costs are fixed and have to come from somewhere. Shifting to a risk assessment system too could mean hiring more people.
“I just don’t see how it’s going to work and how they’ll implement this in 88 counties,” said Fox, who added that defendants with no “skin in the game” have no motivation to show up for court.
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New Jersey, Kentucky, New Mexico and Washington, D.C., are among the jurisdictions that have overhauled their bail systems in recent years.
Kentucky in 2011 directed judges to release defendants awaiting trial who receive a low or moderate score on the risk assessment tool, according to the Marshall Project, a nonprofit news organization that monitors the U.S. criminal justice system.
Starting this year, New Jersey judges began holding hearings shortly after arrests to determine whether a defendant should be released. It virtually eliminated money bail and triggered a significant drop in the jail population as well as backlash from police, prosecutors and bail bondsmen.
Five months after the new system started, New Jersey Attorney General Christopher Porrino called the new system a success but also directed prosecutors to push for detention more often.
Legal challenges have been mounted in state after state. According to the National Center for State Courts, 17 states alone have faced litigation over fines, fees and bail practices. And cities in Alabama, Mississippi and Louisiana ended the use of money bail for misdemeanors and traffic offenses, according to the Marshall Project.
Crime victims don’t necessarily support a lock-them-up-and-throw-away-the-key approach, according to a national survey by the Alliance for Safety and Justice. By a 2 to 1 margin, victims said they preferred a system that focuses on rehabilitation over punishment, and 61 percent say they supported investments in education, mental health treatment, drug rehab, and job training to more spending on incarceration, according to the survey released in April 2016.
Shakyra Diaz, managing director for crime survivors for safety and justice at the alliance, said Ohio is moving closer to statewide reforms on pre-trial detention.
“I don’t see it being too much longer before we see Ohio turning the tide,” she said, adding that O’Connor’s leadership on the issue is crucial.
O’Connor said it hasn’t been determined yet exactly what statewide rules and tools should be used when it comes to bail and pre-trial services in municipal and common pleas courts.
But it remains a high priority for her.
“Let’s put it this way,” she said. “I have five-and-a-half years left on this term and I want to see it done well before my last day.”
The Ohio Criminal Sentencing Commission recommendations:
- Use a risk assessment tool, rather than monetary guidelines, to determine who should be released pending trial.
- Collect and analyze data on appearance rates, public safety and violations to ensure a fair, effective system.
- Use other ways to prompt a defendant to show up for court, such as day reporting, instead of jail.
- Mandate that legal counsel appear with defendants at the initial appearance.