Bail reform needs to be more than words on paper

December 19, 2019 12:30 am
gavel stock photo

File photo from Wikimedia Commons

The Supreme Court of Ohio is still in the process of amending Criminal Rule 46, the rule that governs bail-setting practices for all state courts in Ohio. This is a big deal, because through these changes, the Supreme Court of Ohio could choose to implement bail reform. Or, it could dodge the responsibility and allow the status quo to continue.

Unfortunately, based on the updated language (proposed amendments begin on page 35) the Supreme Court of Ohio proposed on Dec. 12, it looks like the court has chosen the latter option.

This is a devastating development. Currently in Ohio, we have a two-tiered system of justice in which wealthier individuals accused of a crime go home, and those without deep pockets are unnecessarily held behind bars — often forced to endure other significant harms such as losing one’s job, home, or even custody of one’s children. This is wealth-based detention that offends the fundamental liberties of accused Ohioans and disproportionately harms people of color. 

Pretrial, wealth-based detention does not even make financial sense. Ohio spends, on average, $65 per jail bed per day. The average total cost of pretrial detention is $728,816 per day. That’s an annual cost of $266 million. Comparatively, pretrial supervision costs between $1 and $5.10 per person per day.  Furthermore, the overuse of cash bail isn’t even effective.

Financial conditions of release — secured bonds, surety bonds, property bonds, etc. — are not more effective than other forms of release — unsecured bonds, release on one’s own recognizance — at ensuring speedy release, preventing the failure to appear at future hearings and protecting public safety.

We cannot allow this harmful, fiscally irresponsible and ineffective system to continue. While the Supreme Court of Ohio has promised reform, we’ve yet to see proposed amendments for Criminal Rule 46 that would create real change. 

In November, the ACLU of Ohio submitted a public comment, asking the court to adopt bold bail reform. While the court’s initially proposed amendments to Criminal Rule 46 included some positive language choices, they failed to provide the procedural safeguards necessary to make a difference. 

The ACLU of Ohio’s comment called for: a presumption of release on personal recognizance, and against the imposition of financial conditions; ability-to-pay determinations; counsel to be available at all stages during which bail is set; and for the cost of conditions not to be borne by legally innocent individuals. 

Over 50 organizations, faith groups, and coalitions signed on to our comment. Since our submission, 646 individuals have written to the court encouraging them to adopt our changes and promulgate bold bail reform. 

On Dec. 12, the Supreme Court of Ohio published revised amendments to Criminal Rule 46 — some of which are highly problematic — for additional comment. 

For example, one of our biggest points of opposition, risk assessments, found its way back into the revised text. While the new language does maintain the requirement that judges “release defendant[s] on the least restrictive conditions,” and when setting cash bail, the requirement that judges set an “amount and type which are least costly,” the court still does not require procedural safeguards that would ensure these important changes are actually implemented. 

The court’s proposed amendments do not require judges to make written findings on the record regarding why a specific condition is the least restrictive or why it is necessary. They also do not require judges to make an ability to pay determination, so how will a judge know what is least costly versus what will lead to unnecessary detention? The Supreme Court of Ohio is telling judges they don’t have to show their work, and by doing so, it is allowing the status quo to continue.

Ohioans are paying attention and our patience is wearing thin: The Supreme Court of Ohio has put forward amendments that look like bail reform but will not change current practice. While the court could still change Criminal Rule 46 for the better and push for reform, they are running out of time. Their proposed language is due to the General Assembly on or before Jan. 15.

While the updates from the Supreme Court of Ohio are disappointing, there are many other avenues through which we can and will make bail reform a reality in Ohio. The stakes are too high to stop fighting, and Ohio legislators can step up to the plate to help Ohioans succeed. 

The General Assembly can and should pass real bail reform that would actually have a positive impact on Ohioans. We need true bail reform that ends our unconstitutional wealth-based system of detention, and the legislature should take this opportunity to champion reform.

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Claire Chevrier
Claire Chevrier

Claire Chevrier is Policy Counsel at the ACLU of Ohio where she is responsible for leading their statewide advocacy on bail reform. Before joining the ACLU of Ohio, Claire worked for a nonprofit in Washington, D.C. where she represented youth with special education needs who were in the juvenile and/or criminal justice systems. Working in the D.C.-Maryland-Virginia area provided Claire with the frustrating experience of navigating different pretrial systems. Washington, D.C. has eliminated cash bail, while Maryland and Virginia still heavily rely on it. Depending on where clients were arrested, they’d either likely go home to their families, or suffer in jail for weeks if not months. Claire is dedicated to bringing bail reform to Ohio and tearing down its unconstitutional wealth-based detention system. Claire is a graduate of Georgetown University Law Center.