Please read update to this post here.

On January 23, 2019, Chief Justice Maureen O’Connor convened a task force to examine the Ohio bail system. Read about that from Court News Ohio here. In light of this initiative, I have asked prominent Cincinnati criminal defense attorney Bill Gallagher to write a guest post on the need for bail reform, which follows.

Commentary: Guest Post on the Need for Bail Reform

By Bill Gallagher

The concept of bail is to ensure the accused will show up for court once he or she is released from jail. But for many defendants, bail bonds are set unreasonably high. Unable to raise bail, they sit in jail for months until their trial date rolls around. The United States’ bail system has evolved from its origin during the Middle Ages to the current practice which keeps people incarcerated pre-trial simply because they cannot afford to pay for their freedom. Although scholars, researchers and practitioners argue the current system is unfair to the poor in particular and detrimental to society in general, few jurisdictions have taken the steps necessary to reform this antiquated system. Ohio has long been studying the issue of bail reform but has been short on action. To date there have been commissions, committees, reports and recommendations but no change in the Ohio bail process.[1]

Over the last 20 years, Ohio judges have increasingly set financial conditions for pretrial release, without taking into consideration whether they are actually needed or, more importantly, if they can afford them.[2] Jails throughout Ohio are bursting with men and women cloaked in the presumption of innocence and awaiting trial, simply because they cannot afford to pay the bail set. The Chief Justice of the Supreme Court of Ohio has urged all Ohio judges to avoid imposing excessive bail, reminding them to follow constitutional standards of fairness, especially if fees create an undue burden on poor defendants.[3] Something has to change.

The Hidden Costs of Pretrial Detention 

There are serious costs and risks associated with being detained pre-trial versus being released. Those detained are more likely to be convicted than their counterparts who are freed on bail.[4] They are less likely to see their cases dismissed. They are more likely to commit crimes in the future.[5] They are more likely to plead guilty if they are detained. They suffer an increased risk of being wrongfully convicted. They pay higher non-bail fees than those released. They generally serve longer sentences.[6] The financial costs associated with pretrial detention, increased convictions and longer sentences is borne by the public. However, these are not the only costs associated with holding presumptively innocent people in jail awaiting trial. Arrestees detained longer than 24 hours have an increased risk of failing to appear at future court dates. This is in addition to the loss of employment, housing and destabilization of the family resulting from detention exceeding 24 hours.[7]  This economic and family destabilization affects not only the person accused but the community in which he resides.

Pretrial Bail Imposed Disproportionately Against Blacks

Race also plays a role in whether a court imposes bail. The results of studies involving Ohio are alarming. Blacks represent 35% of the total jail population in Ohio, despite comprising only 12% of the state’s population.[8] Controlling for all other factors, people of color receive higher bail amounts than whites and also longer stays in pretrial detention.[9] This disparate treatment could be reduced or eliminated if bail practices and rules are reformed to require the review of objective factors.

Evidence Does Not Support Maintaining the Status Quo

Those who argue for keeping bail practices unchanged claim money bail and conditions are necessary to ensure the accused appears at all future court appearances. They also assert bail is also required to keep society safe from future offenses committed by the person. These arguments are not supported by evidence. First, secured money bail is no more effective in assuring future appearances than unsecured release.[10] Second, secured money bail is no more effective in assuring public safety than unsecured bail or non-monetary conditions. Studies have found no significant differences in the persons charged with new crimes during pretrial release.[11] On average, judges who more frequently imposed bail conditions did not have a lower arrest or the filing of new charges than judges who did not.[12] Another study shows longer pretrial detention is associated with a greater risk of new criminal offenses while awaiting trial. Those detained 2-3 days were 39% more likely to be engaged in “new criminal activity” than those released in fewer than 24 hours.[13] For those detained over a month, the risk increases to 79% greater than those released within a day.[14] These findings are consistent with the results of another study, where Kentucky significantly increased the numbers of arrestees released on non-monetary bail conditions. They saw a decrease in the number of crimes committed by those released pending trial.[15]

Suggested Reforms

The goal of any bail reform should be to create a system which maximizes appearance, release and appropriate placement, preserves public safety, protects the presumption of innocence, while decreasing the reliance on money bail as the primary release mechanism.  A system in which there is a strong presumption for release on limited or no conditions will place the burden on the prosecutors to justify why bail conditions are necessary.

There should be a presumption in favor of release and against bail conditions. As the late Chief Justice William Rehnquist noted, “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v Salerno, 481 U.S. 739, 755 (1987). A judicial officer should be required to use the least restrictive means to assure appearances in court and protect the public. This should include a presumption against money bail. The burden should be on the prosecutor to establish by clear and convincing evidence the accused is a flight risk defined as likely to flee the jurisdiction to avoid prosecution.

The rule should require an “ability to pay hearing”. If a judicial officer determines a financial bond is to be set, it should be set in an amount the accused can afford to post. If this is not required, then the constitutionally mandated protections outlined in Salerno (detention reserved only for those for whom the government demonstrates there are no conditions available which will assure appearance and protect the public) go unmet. If the courts are not required to consider the ability to pay, then an accused will likely remain in jail simply because she did not have the money to afford bail.

Financial conditions should only be considered when trying to assure an accused’s future appearance in court. Too often judges claim money bail helps protect the public. There is no relationship between the amount of bail and future risk of new offenses. In Ohio the law is bail cannot be forfeited for committing a crime while free on bail.  As a result there is no financial incentive for good behavior. Instead, bail is too often used to detain someone pre-trial who is a perceived, but not proven risk, based solely on the crime alleged.

Judges should be required to state the basis for their bail decisions. The rule should require a recorded explanation for why a financial condition or non-financial condition was considered the least restrictive condition necessary to reasonably assure appearance or public safety. Currently, a judge is not required to do so. Many times, courts simply accept the recommendations of a prosecutor or pretrial services employee. The absence of such findings prevents a meaningful appellate review when excessive bail is claimed by a person detained. Factual bases for the imposition of bail will ensure a bail decision is the product of individual consideration and a record exists upon which the decision can be reviewed.

Ohio must eliminate the practice of having the accused bear the costs of non-monetary conditions. Asking the person released to bear the costs of monitoring, testing, and supervision is problematic. Many times this is an expense a defendant cannot afford. The results? Staying in jail unable to avoid the financial burden of the conditions or taking on unsustainable debt, which can interfere with successful re-entry following completion of the criminal case. If the charges are dismissed or the defendant acquitted, the fees paid are not refunded. Further, if the costs are borne by the courts, their use will be limited to those cases where the need is truly evident. It also helps make sure the legally or factually innocent/acquitted are not punished in advance of a trial by having to pay or be detained for not being able to afford the conditions.

Conclusion

Bail reform will not put the public at greater risk. It will reduce jail populations. It will result in reduced costs to taxpayers. It will help ensure an accused is treated fairly and not punished pre-trial simply because the accused is poor and cannot afford the money necessary to be released. It will reduce the risk of wrongful convictions, coerced guilty pleas, and unreasonable bail decisions. It will help ensure equal treatment while increasing the public’s confidence the Ohio courts are fair.

Endnotes

[1]Ohio Sentencing Commission Ad Hoc Committee on Bail issued a report in June 2017. https://www.sc.ohio.gov/Boards/Sentencing/resources/commReports/bailPretrialSvcs.pdf Ohio Supreme Court Chief Justice O’Connor has now formed another committee to study bail.  https://www.usnews.com/news/best-states/ohio/articles/2019-01-24/ohio-chief-justice-announces-review-of-state-bail-system.

[2]https://www.prisonpolicy.org/profiles/OH.html.

[3]https://www.usnews.com/news/best-states/ohio/articles/2018-01-31/ohio-justice-urges-judges-to-avoid-excessive-fines-bail.

[4] Dobbie, W., Goldin, J., Yang, C.S., The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges (2018) American Economic Review, 108(2), 201-40, available at https://pubs.aeaweb.org/doi/pdfplus/10.1257/aer.20161503

[5] See, e.g., Arpit Gupta, Christopher Hansman, Ethan Frenchman, The Heavy Cost of High Bail: Evidence from Judge Randomization, at 1, available at http://www.columbia.edu/~cjh2182/GfuptaHansmanFrenchman.pdf

[6] Stevenson, M. (2017). Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes. Available at SSRN: https://ssrn.com/abstract=2777615 or http://dx.doi.org/10.2139/ssrn.2777615.

[7] Heaton, P., Mayson, S., & Stevenson, M. (2017). The Downstream Consequences of Misdemeanor Pretrial Detention. Stanford Law Review, Vol. 69, p 711.

[8]Vera Institute, Incarceration Trends (2017) http://trends.vera.org/rates/ohio?incarceration=rate&similar=jailpopulation; U.S. Census Bureau, “Annual Estimates of the Resident Population by Sex, Age, Race, and Hispanic Origin for the United States and States,” 2015 population estimates.

[9]See, e.g., Will Dobbie, Jacob Goldin, and Crystal Yang, Racial Bias in Bail Decisions, available at  https://www.princeton.edu/~wdobbie/files/racialbias.pdf.

[10] Brooker, C. M. B., Jones, M. R., & Schnacke, T. R. (2014). The Jefferson County Bail Project: Impact Study Found Better Cost Effectiveness for Unsecured Recognizance Bonds Over Cash and Surety Bonds. Rockville, MD: Pretrial Justice Institute. see also; Jones, M. R. (2013). Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option. Rockville, MD: Pretrial Justice Institute; Lowenkamp, C. T., VanNostrand, M., & Holsinger, A. (2013). The Hidden Costs of Pretrial Detention. Houston, TX: Laura And John Arnold Foundation.

[11] See Brooke and Jones, supra.

[12] Brooker, supra.

[13] Lowenkamp, supra.

[14] Id.

[15] Heyerly, M. (2013). Pretrial Reform in Kentucky. Frankfort, KY: Pretrial Services, Administrative Office of the Courts of Kentucky Court of Justice