Ohio’s flawed justice system allows some to buy freedom, others to wait in jailMay 15, 2021
This opinion piece was first published in The Columbus Dispatch.
Individuals accused of crimes are presumed innocent until proven guilty. But Ohio’s overreliance on cash bail means this bedrock principle of our criminal justice system all too often is more theory than practice.
The Ohio Supreme Court’s recent updates to the state’s criminal rule on pretrial practices took a huge step forward by presuming a defendant’s release pretrial, unless that defendant poses a flight risk or is a risk to the community. But work remains to be done to reform Ohio’s pretrial system.
Policymakers can codify the Supreme Court’s presumption of release rule and take additional steps to ensure that state courts treat all defendants fairly in the pretrial decision.
Unfortunately, Ohio’s two-tiered criminal justice system still allows some to buy their freedom through cash bail while leaving others waiting in jail before trial because they cannot afford even nominal bail.
It is time to change the failed system. And Ohioans agree. Recent polling shows 67% of Ohioans favor “reforming Ohio’s bail system so that release decisions are based on individual circumstances and cases and not how much money someone has.”
Even as bail systems fail to protect fundamental constitutional rights, they offer no guarantee of public safety and too often invite tragedy.
Dragan Sekulic, for example, used his car in 2015 as a battering ram in an attempt to kill his ex-wife. Sekulic had previously faced a domestic violence charged, but still posted a $100,000 bond after being charged with felonious assault, domestic violence, and operating a vehicle while intoxicated.
So the court released him to await trial. His ex-wife survived the car crash, but two weeks after he posted bail and walked out of jail, Sekulic shot and killed her.
Ohio’s current bail regime allows cash bail to serve as an illegitimate proxy for public safety, allowing dangerous defendants to pay cash to offset their threat to public safety. But the public’s safety should not depend on a defendant’s deep pockets. Judges should only impose cash bail to ensure that the accused appears for trial.
Defendants posing a threat to the community can and should have pretrial restrictions, including pretrial detention or supervised release for more serious crimes, and less restrictive release conditions for less serious crimes, as appropriate. And detaining defendants who pose safety risks to the community, while releasing those who do not will enhance public safety and improve criminal case outcomes.
A recent study by the ACLU of Ohio revealed that “those who remain in jail pretrial — compared with those who are released or…purchase their pretrial release [with bail] —are more likely to be convicted, more likely to be sentenced to jail or prison, and their sentences are longer. This is due not only to the increased likelihood of those held behind bars feeling coerced into taking plea deals, but also because it is harder to build successful cases from behind bars.”
Beyond improving criminal justice in Ohio, bail reform will save the state — and Ohio taxpayers — money. With the average Ohio jail bed costing communities around $65 per day and a defendant’s supervised release only $5 per day, The Buckeye Institute estimates that bail reform will save Ohio more than $67 million a year.
Our criminal justice system rests on the bedrock of innocence until proven guilty, and the ancillary principle that “liberty is the norm” and detention “without a trial is the carefully limited exception.” That carefully limited exception should be based on concerns for public safety, not the accused’s financial resources. Justice demands it and the people of Ohio agree.
Andrew J. Geisler is a legal fellow at The Buckeye Institute and an expert in criminal justice reform.