Ohio’s bail system is based on someone’s ability to pay. Is that fair?

Reform advocates say Ohio needs a different system for determining bail.

When Dayton native DaJuan Hume was a college student at Ball State University in 2004, he was arrested for a crime he says he did not commit.

By the time the charges were dropped, Hume had spent nearly two years in jail, lost his apartment and couldn’t afford the storage fees to get his vehicle out of the impound lot.

“I lost everything,” Hume said.

Ohio’s jails are filled with people who are there because they can’t afford to post bond or pay court costs. A study conducted by the Ohio Department of Rehabilitation and Correction found 35.4 percent of local jail inmates have not been convicted of a crime, but are awaiting trial. In most cases, the study found, the inmates are being held because they could not afford bond.

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Hume’s experience came more than a decade ago, but it’s a big reason why he’s joined local efforts to reform the criminal justice system in Ohio, focusing first on bail reform. He argues that Ohio’s system of requiring people to produce cash to be released on bail amounts to jailing people for being poor.

The issue has gained traction in recent years because of overcrowded jails and arguments about unfairness. Last year the Dayton Daily News reported on the case of Markcus Brown, who spent nine days in jail after he was arrested after violating an RTA policy against wearing hoodies and saggy pants on the bus system’s property. His mother had to arrange a car title loan to pay for his bail.

Among those advocating for changes is Ohio Supreme Court Chief Justice Maureen O’Connor, who co-chaired a national task force on fines, fees and bail in 2016.

In a written statement issued with release of the group’s findings O’Connor said: “No one in America should be sent to jail, or threatened with jail, solely because they are poor. In too many instances, judges are ignoring fundamental rights guaranteed by the Constitution, while local politicians treat the court system as an ATM for their spending priorities. This must change, and this task force is committed to taking steps to ensure justice for all.”

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Not everyone is on board. Montgomery County Sheriff Phil Plummer cautioned against making dramatic changes.

“Law enforcement officers already think there is not enough consequences for repeat offenders. So, we cannot lessen that. It could be very dangerous just letting people out because of poverty or whatever excuse they want to use,” Plummer said.

Dayton Municipal Court Administrative Judge Deirdre Logan said the current system allows a judge to permit release of a person after arrest while they are awaiting trial. Release could be ordered with a monetary bond, release with conditions or release with no conditions.

“The purpose of any bond determination is to guarantee the defendant’s appearance for the next court date and also to keep the public safe. Those are the two primary factors that must be considered when determining bond,” Logan said.

Plummer questions whether people will show up for trial if they have no financial incentive to do so, which would then lead to law enforcement tracking down those who don’t appear.

“When you just release them, they do not come back,” Plummer said. “We probably have to waste an hour of our time arresting them, bringing them downtown to the jail. Now you have a police officer off the streets who should be patrolling neighborhoods and protecting citizens. So it could bog down the first responders.”

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The same argument comes from bail bondsmen who make money loaning cash to people so they can bond out. If those people do not return for trial, it is the bondsmen who round them up and deliver them to court, according to Charles Miller, president of the Ohio Bail Agents Association.

“We are going to get those people and bring them back to the bar of justice,” Miller said. “What you are doing is putting more strain on the system now with a promise. There’s nothing else there when you go to no money bail.”

But setting a money bail for a defendant that they can’t possibly meet sets up inequities, reform advocates say, leading to a jail population that is determined by a person’s ability to pay.

“The reason why they are in jail is because they are poor,” Montgomery County Public Defender Rudy Wehner said. “They are given a money bond that they cannot possibly make.”

Judges in Dayton have begun to make changes while balancing the constitutional rights of the accused with the rights of victims and safety of the public. The Montgomery County Bail Review Committee initiated a study of local policies and procedures by a consultant, Public Performance Partners, which recommended the use of more assessment tools in deciding bond.

“While individual judges would retain the final say on bond, all judges would receive the same structured risk assessment on each defendant,” the report states. “This consistency would serve to reduce unintentional disparities in the level of bond set.”

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Judge Logan said the court is moving away from a bail schedule based only on the crime that occurred and instead is shifting to the use of a risk assessment that looks at whether the charge is a felony or misdemeanor, a person’s criminal history and whether they are a potential flight risk.

“It should be individualized and the best practices that we are trying to come up with in Montgomery County is to make it consistent and efficient,” Logan said.

The judges also examined the previous bond schedules being used by the different jurisdictions throughout the county and replaced them with one uniform schedule.

“So if you get stopped for a DUI in Vandalia you are going to have the same bond as someone who gets stopped for a DUI in Dayton,” Logan said.

More changes could come from the Statehouse, where critics and proponents of bail reform have squared off over HB 439, proposed by Rep. Jonathan Dever, R-Madeira, and Rep. Timothy Ginty, R-Salem.

The bill allows courts to impose conditions rather than set monetary bail. It also requires courts to use a “validated risk assessment tool” before setting bail. If the bill passes, courts around Ohio would be required to collect data regarding the use of bail.

Much of what is contained in the bill was recommended by the Ad Hoc Committee On Bail and Pre-Trial Services formed by the Ohio Criminal Sentencing Commission. In its March 2017 report, the commission stated that only the accused who “pose the greatest risk to public safety and failure to appear” would be kept behind bars to “effectively utilize jail resources.”

So far the bill has received only a few initial hearings. According to the sponsors, a substitute bill is in the works and will be introduced soon.

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