Commentary

01.30.20

Our thoughts on Criminal Rule 46 and why it is NOT enough

By

Ohio Supreme Court

Ohio needs REAL bail reform. Every day in Ohio, thousands of people are kept behind bars, not because of what they have done, but because of what they don’t have. Our state’s overreliance on cash bail sets up a two-tiered system of justice in which those who can afford to buy their freedom go home, and those without deep pockets are pointlessly forced to languish behind bars. The Supreme Court of Ohio (SCO) has the opportunity to change this system by amending Criminal Rule 46, the Rule of Practice and Procedure that governs bail-setting procedures for all state courts in Ohio. Instead, SCO seems poised to allow current practices to go unchanged. While the language the SCO filed with the Ohio General Assembly (OGA) includes some improvements, these changes are simply words on paper. The SCO has chosen not to include procedural safeguards, which all but guarantees that these amendments will not change current bail-setting practices. Therefore, we unenthusiastically support these amendmentsthey do no harm, but they fall short of implementing true bail reform in Ohio.

What we mean by “some improvements” and why they won’t help Ohioans

The proposed amendments include positive language choices that we support. However, the current language is also void of the procedural safeguards necessary to actually implement these language changes.

For example, the proposed amendments require that all conditions of release be “least restrictive” and that financial conditions of release—such as cash bail—be “least costly.” These are, hypothetically, great changes. But the SCO failed to require that judges make written findings on the record about why a condition is least restrictive and what makes it is necessary. Similarly, judges are not required to undergo an ability to pay determination, so how will a judge know what is least costly versus what will lead to unnecessary detention?

Another example of a change we support is that, for the first time, the SCO specified that judges can only set financial conditions of release if doing so is “related to the defendant’s risk of non-appearance.” This is indicative of a huge understanding shift regarding cash bail. The ACLU of Ohio and many other organizations across the state often repeat and explain that cash bail does not promote public safety; it simply allows a wealthier person to purchase their release, while leaving those without deep pockets behind bars. We are thrilled that this limiting language was added to the rules, but again, judges don’t have to make written findings on the record which would show the reason they are setting cash bail is due to the defendant’s risk of failing to appear. This means that current bail-setting practices could continue.

Think about these changes in terms of what actually occurs in courtrooms. Currently, judges have broad discretion to set a financial bond for an amount they choose. Let’s say today a judge would choose to set a $10,000 bond for a defendant, and would do so without considering whether it is the least restrictive condition, whether it is connected to a risk of failing to appear, or whether it is in an amount that is least costly or instead will lead to unnecessary detention. Although this practice unconstitutionally allows wealth-based detention, it is the reality that exists in courtrooms across Ohio. However, even if these amendments take effect, a judge could still set the same $10,000 bond and ignore the new requirements. That’s because, as we said in the Ohio Capital Journal, “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.”  Not only will judges not be forced to follow the new requirements, but also, without a written record which outlines why specific conditions were set, it is very difficult for a defendant to appeal a judge’s conditions decision.

What We Need Instead                                

Many of our proposals, which are necessary to create the bail reform Ohioans need, did not make it into the SCO’s proposed amendments at all. For example, there remains no presumption of release, the linchpin of true bail reform. There isn’t even a presumption against the use of financial conditions of release.  Defendants still do not have a right to counsel at their first appearances during which conditions of release are set. And the SCO chose not to require that the cost of conditions of release not be borne by defendants. Therefore, legally innocent defendants may continue to be forced into debt or jail because they cannot afford conditions of release such as pretrial services or GPS monitors.

Where we are now in the amendment process?

The SCO was required to file their proposed amendments with the OGA on or before January 15th. They did so. The next deadline is May 1st, when the SCO is required, if they choose to move forward with amending the rules, to re-file the final version of their amendments with the OGA. The purpose of the timeframe between January 15th and May 1st is for the OGA to engage with these proposed amendments. They could open up the rules for their own public comment, hold committee hearings, or even submit their own amendment suggestions back to the SCO. However, it looks unlikely that the OGA will take any of these steps. Instead, it seems likely that the SCO will re-file the same or altered amendments with the OGA on May 1st, without there having been any further formalized process by which the public can offer support or opposition. After May 1st, the OGA has the opportunity, through a joint resolution, to reject the amendments. No affirmative action by the OGA is necessary. If the OGA does not successfully pass a resolution rejecting the amendments, the updated rule will take effect on July 1st and it will carry the weight of law. And the harmful, predatory status quo will be able to continue.

So what can we do to push for real bail reform?                                        

The ball is in the OGA’s court. Ohio legislators could choose to request the SCO add the procedural safeguards necessary for these amendments to actually create change in courtrooms. Or, the OGA could choose to introduce legislation that would, on its own, create bail reform. While the SCO’s proposed amendments are disappointing, they do indicate the SCO’s desire for change. The OGA is in the best position to make sure the desires of the SCO and Ohioans are actually realized in courtrooms across our state. We need bail reform, and Ohio legislators should introduce legislation to make it a reality!

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