Ohio among States Considering Cash Bail Reform
(Originally appeared in Interrogating Justice)
Cash bail reform is among the many initiatives being considered across the US as it grapples with criminal justice reform. In the wake of the George Floyd murder and subsequent Black Lives Matter protests in the summer of 2020, many states and municipalities began re-examining policies contributing to racial disparities and other inequities.
Cash bail was one of them. Advocates for reform claim that requiring cash for pre-trial release is tantamount to criminalizing the poor.
On any given day, about 65% of people in jail and there awaiting trial. Essentially, they are serving time for a crime for which they have not been convicted.
Blacks and Latinos are more likely than whites to be denied bail, to have higher money bond set, to be detained because they cannot pay their bond and, therefore, more likely to remain incarcerated before trial — even when the crimes they commit are exactly the same as whites.
Seventy percent of pretrial releases require money bond, an especially high hurdle for low-income defendants who are disproportionately people of color.
Also, pretrial detention has been shown to increase the odds of conviction. People who are detained awaiting trial are more likely to accept a less favorable plea deal, more likely to be sentenced to prison, and more likely to receive longer sentences.
Ohio is one state presently debating the pros and cons of eliminating cash bail. House Bill 315 and Senate Bill 182 shift the decisions about whether someone who is arrested is allowed to be at home until trial or must remain in jail based on their level of threat to the community, and/or their flight risk. Not on their ability to come up with money. This starts with a presumption of release, which places the burden on prosecutors to prove the need for detention and limits qualifying offenses for detention to only the most serious offenses.
The problem, of course, is what goes on outside the jail cell while the presumed innocent until proven guilty person awaits trial inside. Too often this includes missing work to the point of getting fired; children who can’t be cared for which results in the involvement of Child Protective Services; and lost wages that soon enough becomes an inability to pay bills, including rent. It’s a snowball effect that exponentially compounds the hardship specifically for the poor. In fact, spending even a few days in jail can result in people losing their job, housing, and even custody of their children. A hardship someone with financial resources charged with the same crime, released on bail, would never encounter.
Studies show that pretrial detention can actually increase a person’s likelihood of rearrest upon release, perpetuating an endless cycle of arrest and incarceration. The cash bail system often leads to the detention of people who do not pose a threat to public safety.
Every year, over 600,000 people enter prison gates, but people go to jail 10.6 million times each year. Most people in jails have not been convicted. Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain behind bars until their trial. Only a small number (about 160,000 on any given day) have been convicted, and are generally serving misdemeanor sentences under a year.
At least 1 in 4 people who go to jail will be arrested again within the same year — often those dealing with poverty, mental illness, and substance use disorders, whose problems only worsen with incarceration.
Defenders of cash bail paint a different picture. According to Joe Deters, the Hamilton County (OH) prosecutor, in a Cincinnati Enquirer article, “well-intentioned people are being deceived.” He believes Ohio’s HB 315 and SB 182 would “…hurt the Black community and put us all in danger” by releasing dangerous criminals pre-trial. Deters points to cities like New York, San Francisco, Chicago, and Philadelphia which are “farther along in the bail reform process” and claims are “descending into chaos.”
Prosecutor Deters prefers diversion programs that help people stay out of the criminal justice system and says he has worked very hard throughout his career to divert first-time offenders out of the system and provide them with services they need to prevent future criminal behavior.
Deters adds, “The only way to cure the problems faced by our high-crime communities is taking the bad guys off the streets for as long as possible. Period.”
Various studies counter Prosecutor Deters’ concerns. New Jersey and Washington, D.C., demonstrate that defendants’ rates of appearance for trial after reforms were implemented are similar or better to rates of appearance before the reforms. Similarly, the rates of rearrest for people who were released pretrial are comparable to those before the reforms were instituted.
Another point of contention for policymakers seeking to end cash bail is the use of actuarial risk assessments, which are formulas, or algorithms, used to predict an individual’s likelihood of appearance at trial, as well as their risk of a pretrial re-offense. These are tools that judges and prosecutors have often relied on to impose harsh pretrial conditions, including exorbitant bail. But risk assessments have been criticized for a lack of transparency and validation as well as for perpetuating and exacerbating racial disparities, in large part by relying on historical, racially-biased data.
Despite detractors by Deters and others, the movement for pretrial reform today is gaining momentum. Many jurisdictions across the United States, in fact, are reimagining the way they use jails and reforming pretrial practices to ensure that the rights of defendants to be presumed innocent and treated equally under the law are preserved, regardless of their income. In ending cash bail, jurisdictions are redesigning their pretrial systems with the goal of reducing the overuse and misuse of jails.
