Pretrial task force takes steps in the right direction

Daniel J. Dew Sep 02, 2019

This opinion piece appeared in The Columbus Dispatch.

Earlier this year, Ohio Supreme Court Chief Justice Maureen O’Connor convened a task force of practitioners and experts to examine Ohio’s pretrial bail practices, on which I had the privilege of serving. The task force has rightly recommended improving Ohio’s cash bail system with common-sense reforms that will help focus pretrial criminal justice on public safety and due process of law.

Because criminal defendants are always “innocent until proved guilty,” and because weeks, months or even years may elapse between arrest and criminal trial, those accused of crimes may be released from police custody pending trial. That’s not a bug, it’s a feature of our constitutional system that protects the individual rights and freedoms even of the accused.

But that constitutional feature must be balanced with the community’s safety and the state’s right to prosecute defendants. To balance those competing interests, criminal jurisprudence for centuries has granted judges the discretion to allow some defendants to await trial “free on bond” — that is, to post cash bail that the court returns only after the defendant has appeared for trial — and to incarcerate other defendants who judges determine may pose a significant risk to the public’s safety.

Pretrial incarceration ought to be the exception rather than the rule, so sayeth the United States Supreme Court. Unfortunately, however, the supposed exception too often becomes the default rule as states like Ohio rely awfully heavily on a fixed “bail schedule” that routinely incarcerates defendants who pose no serious threat to the community, while (at the same time) allowing more serious offenders to roam free simply because they have the financial means to post bail.

Public safety and due process are increasingly sacrificed on the altar of administrative convenience.

More than half of the men and women currently sitting in Ohio jails are not serving a sentence. Many defendants accused of public intoxication, misdemeanor trespasses or unpaid traffic tickets, for example, sit in cells awaiting trial simply because they cannot afford the court-set bail.

Meanwhile, other defendants accused of rape, armed robbery and felonious assault walk through our neighborhoods because they managed to pony up relatively significant sums for bail.

The chief justice’s task force has offered common-sense recommendations that will go a long way toward righting some of what’s wrong with Ohio’s pretrial criminal justice system. For starters, the task force calls for a broader use of verified risk assessment tools, like the public safety assessment used in Lucas County, to give judges better information when making pretrial decisions. Since implementing the PSA in Lucas County, defendants appear for court at the same rate and commit less crime even as more defendants are released pending their trials.

The task force also recommends that courts look at alternatives to pretrial detention — such as regular check-ins with court staff during release — so that courts do not face “detention or nothing” as their only options. And the task force suggests that courts can better employ cheap technology like text and email reminders that research shows can dramatically raise court-appearance rates.

These suggestions, of course, mark the beginning, not the end of Ohio’s journey toward a fairer, safer criminal justice system. Lawmakers can and should do more by changing Ohio law to specify that the ability to access money — cash bail — cannot be used to address public safety concerns. If a court determines that it is too dangerous to release a person before their trial, the court should have to meet the necessary legal burden to detain that person and not use money bail as an end-around to due process.

The amount of money a defendant can post with a court or a bondsman does not make him or her any more or less of a threat to public safety. While these additional reforms are certainly needed, the chief justice and her task force are to be commended for taking solid first steps in the right direction to focus Ohio’s pretrial criminal justice system on safety and fundamental fairness.

Daniel J. Dew is a legal fellow at the Buckeye Institute’s Legal Center.