“It is expensive to maintain defendants in jail,” Ohio Supreme Court Justice Maureen O’Connor told county judges this month. “If they are not a flight risk or a public safety risk, why are they in jail?”
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The 17-member bail committee met six times last year, studied other Ohio counties’ systems and other states’ bail reforms.
“Recognizing the challenges to the constitutionality and general ineffectiveness of our current bail practices, a growing list of jurisdictions are blazing a new trail for the deployment of evidence-based bail practices that work,” said the report prepared by Public Performance Partners (P3), Inc.
“In fact, there is a growing national consensus around the belief that citizens are being detained before trial based on their ability to pay rather than an objective assessment of their risk to the community or likelihood to appear for their court date.”
‘So that everyone gets a fair shot’
The report calls for expanding bond recommendations for all misdemeanors, consolidating pretrial operations under common pleas court and creating an umbrella organization for all eight of the county’s municipal court systems.
Montgomery County Common Pleas Court administrator James Dare was one of three committee co-chairs. He said the county has an outstanding pretrial services division relied on for recommendations when charges include violence.
“We need to expand that to other types of charges so that everyone gets a fair shot and is able to have the information they need as far as judges need to make good decisions regarding bail,” Dare said. “It is a topic we want to be on the cutting edge of.”
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An example of inmates being held on non-serious charges was previously reported by the Dayton Daily News.
In May 2017, Markcus D. Brown was stopped by Dayton police at the RTA bus hub because he and his friends wore hoodies and saggy pants — a violation of RTA policy.
Brown, who had no criminal history, refused to provide ID so police took him to Montgomery County Jail. He was there for nine days until his mother got a car title loan to pay the $150 bail.
Brown, who missed a job interview during his jail stay, pleaded guilty to misdemeanor criminal trespass.
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“What sense is it to put somebody (in jail), pretrial, have them sit in a detention facility, the jail, because they can’t make a bond that they really shouldn’t have to make because, No. 1, they will show up for their hearings, and No. 2, they’re not a danger to the community,” O’Connor said, adding that the practice is unconstitutional. “You can’t jail them just for being poor. There has to be another sanction.
“That just is one of the problems that you see with our system — is that the wrong people are needlessly sitting in jail waiting for their cases to be resolved. And that’s a burden on the taxpayers.”
$14 billion per year
The committee’s report quoted a Pretrial Justice Institute estimate that more than 63 percent of the national daily jail population are awaiting trial and cost taxpayers $38 million per day:
“Annualized, that is $14 billion expended to detain citizens not yet convicted of a crime, some whose charges may be dropped, and, in most cases, pose very little risk to the community,” the report noted.
The report said few of the county’s municipal court judges “expressed significant concern about how bail bonds are utilized in court across Montgomery County,” and that judges “feel that the use of money to secure a defendant’s appearance at court hearings generally works well.”
Montgomery County Common Pleas Court Judge Steven Dankof disagrees and wrote a letter to colleagues about bail changes after he and Dayton Municipal Court Judge Deirdre Logan attended a best practices presentation by the Ohio Supreme Court’s Judicial College.
“We in Montgomery County can get on board the Bail/Bond Reform train, or be run over by it,” Dankof wrote in a Nov. 13, 2017 letter. “If we choose the former, we can collaborate and develop a Bail/Bond program that is actually constitutional and of which we can be proud.”
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The report shows law enforcement has pause about changing current practices. Montgomery County Sheriff’s Office Major Matt Haines, the jail commander, was reportedly concerned about non-jail detainment alternatives for mental health and drug offenders.
The committee’s report also referenced a Dayton Daily News article that settlement of county jail lawsuits passed $1.2 million in 2017.
The report said that cost “should provide further incentive to utilize technology, better data, and better aligned criminal justice systems to make sure that only defendants that need to be in jail are held in custody.”
The report also reference what it termed success stories in Lucas, Cuyahoga and Summit counties in Ohio plus massive bail reform in New Jersey, among other places.
In Lucas County, where officials switched to the Arnold Foundation Public Safety Assessment (PSA), their regional court services team reported that the total incarceration population dropped 18.2 percent, failures to appear dropped 30 percent, pretrial recidivism was reduced 50 percent and 4,158 “bed days” were saved.
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That PSA said the factors to consider are a defendant’s history of violence, pending charges, felony or misdemeanor convictions, their age, if they appeared in court as scheduled and if they’ve been sentenced to incarceration.
The Arnold Foundation reports factors like race, gender, level of education, socioeconomic status and neighborhood — typically considered in bond recommendations — were not in the PSA because they weren’t “statistically relevant.”
In New Jersey, the committee’s report said, voters in 2014 approved changes to their constitution that nearly eliminates cash bail for non-violent offenders.
‘Court should not operate as an ATM’
In her remarks to county judges, O’Connor said another effect of higher fines, fees and bail is the erosion of public trust in judicial institutions.
She cited the U.S. Dept. of Justice report in the aftermath of the Ferguson, Mo. riots, which detailed the underlying reason for angst against law enforcement.
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“Revenue was down and the city fathers, you know, decided with the police chief and the police, we need to increase revenue so we’re going to ticket more people and we’re going to bring those people into court and then the court is going to levy these fines,” O’Connor said. “It was described as a collusive arrangement on the back of the poor of the community.”
O’Connor said she always tells judges that their legislative body has the responsibility to fund the judiciary, not the other way around.
“Depending upon where your court’s located, you may come under pressure from your local government to place revenue before justice,” O’Connor said. “And you will not be alone. But a court should not operate as an ATM for your city council, your county council, your funding source.”
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