Ohio Court Rule 46 changes to upend the criminal procedure in Ohio…ABC take a deep dive into the proposal.
September 21, 2018
Chief Justice Maureen O’Connor and the Ohio Supreme Court are looking to change the court rules in Ohio by installing the computerized justice mechanism we’ve seen fail in other states. The proposed changes include implementing dangerous risk tools and preventive detention.
The American Bail Coalition‘s Executive Director, Jeff Clayton takes a closer look…
An in-depth analysis of proposed changes to Ohio Court Rule 46…
by Jeff Clayton
As licensed insurance corporations who underwrite bail agents in Ohio, we work every day as criminal justice professionals in Ohio’s criminal justice system to ensure the integrity and accountability of the process.
One key change to Rule 46 is an attempt to implement the New Mexico, New Jersey and Washington D.C. systems of pretrial release or preventative detention, eliminating the use of financial conditions of bail as a condition precedent from being released from jail. Not only are such changes substantive law and therefore the province of the political branches of the government, the practical problems and expense associated with implementing such a system have not been thought through and will require substantial government commitment and resources at the state and local level to even attempt to implement.
While there are some changes in the rule that comport with national best practices which we believe should in fact be adopted, we think the overall move to the so-called no money bail system is a mistake for Ohio. We note with particularly the sections concerning which we have objections and which sections we specifically endorse.
The System of “Pretrial Release” and Preventative Detention is Created in This Rule and is the Wrong Move for the State of Ohio
The rule itself is retitled to remove “bail” entirely from the rule. This is inconsistent with the Ohio Constitution and criminal code. The Ohio constitution prohibits “excessive bail,” not excessive “conditions of release.” The rule appears to be renamed to create the architecture of the system of pretrial release or preventative detention, the bi-polar system of bail first created in Washington, D.C., adopted in the federal system in 1984, adopted in New Jersey January 1, 2017, and in New Mexico July 1, 2017. This appears to be the reason to rename the rule.
Section (A) notes that prosecutors may seek preventative detention, which is the first half of the system of pretrial release or preventative detention. It must be noted in those jurisdictions that preventative detention serves as the only reason someone will remain in jail pending trial. An unposted bond cannot serve to detain, although in some limited cases in those jurisdictions (47 bonds were posted in New Jersey in 2017, for example) judges will use a “financial condition.” However, if a judge imposes a bond that would otherwise pass muster under the excessive bail clause, that bond cannot ever serve to detain in those jurisdictions that have gone to the system of pretrial release or preventative detention.
Subsection (B)(3) enacts this very system of pretrial release or preventative detention in Ohio by requiring that all persons not preventatively detained by prosecutors filing motions and proving detention by clear and convincing evidence “shall” instead be “released” on the least restrictive conditions. Ostensibly those could include financial conditions, but because someone can easily argue they are indigent, and imposing a financial condition that is not met cannot serve to detain, judges will have straight release on recognizance or piling on a litany of non-monetary conditions as their only true options in practice
This rule clearly sets up the architecture of the no-money bail systems in New Mexico, New Jersey and Washington, D.C. in Ohio. These systems have backfired in any number of ways. In the case of Ohio, unless prosecutors get additional funds to do the preventative detention hearings, this rule will mean the release of nearly all criminal defendants in nearly all cases in Ohio. Preventative detention is quite limited in Ohio, so the range of persons getting guaranteed releases will include all of those crimes for which preventative detention can never be sought, and all of those crimes for which preventative detention is sought and not granted for whatever reason. Every person who is in jail beyond first appearance will be there because a prosecutor met the high bar of proving by clear and convincing evidence that the defendant is a flight risk or danger to the community or the process. Contrast that to today where a high bail that is otherwise not excessive may be imposed when probable cause to believe the crime has been committed has been established.
While the federal system incarcerates pending trial well over 70% of defendants using a system of preventative detention (up from 24% when the Bail Reform Act of 1984 was passed) and New Jersey is filing for preventative detention in 44% of all cases, preventative detention is granted in only 18% of total cases, meaning those are the persons detained the entire pendency of the case. This is consistent with Washington, D.C., which has a 15% rate of preventative detention. This could be an eventuality in Ohio if Ohio goes in this direction, and how much detention there is will depend strongly on whether there are adequate alternatives to bail at the county level, which will be costly. Otherwise, the example of Maryland, where financial bails were also removed by court rule, left judges the choice of detention and supervision by pretrial services. Judges chose detention, increasing pretrial detention by over 23% in Baltimore the first full year after the rule was implemented. So, there could quite likely be a potential explosion in incarceration.
In Ohio, however, this move appears instead much more likely to turn into New Mexico. In New Mexico, which did a similar change by court rule very similar to what is being proposed here, no funding was provided to the system to take on the load of preventative detention or pretrial release, and as a result, nearly 95% of all defendants are released on their own recognizance most without supervision and all without having to post bail. We would expect a similar result in Ohio because of how limited preventative detention is in terms of its availability due to the various exclusions, and then based on the lack of resources to allow for a motion, defense of that motion by a criminal defense attorney, and hearing in every single case where a defendant is detained beyond first appearance in every criminal case in Ohio. That figure would most certainly be in the hundreds of millions of dollars range and stretch court budgets, police budgets, and prosecutor and public defender budgets.
Plus, a key missing component to those no money bail systems in Washington, D.C. and New Jersey is that statewide pretrial services were funded to supervise and monitor those persons who were previously monitored by a bail agents who were financially liable for their return. Washington D.C. spends around $65 million for their pretrial services program. Ohio’s population is roughly 17 times the size of Washington, D.C., which on a per capita basis would put the price tag for Ohio to adopt such a system at well over $1 billion.
This proposed rule also allows judges to impose a litany of non-monetary conditions, but leaves out one other key issue: who is going to pay for that? Of course, defendants who are too indigent to post bail cannot be required to pay, and ultimately this burden will fall on local counties and the State. The same bail reform legal non-profits have already begun their next campaign, which is against counties and local governments for the charging of fees for supervision and other pretrial services as unfair and unjust. A court rule cannot create the architecture needed to do the no money bail system of pretrial release and preventative detention in Ohio, and for that reason alone this rule change should be rejected. Counties will ultimately be saddled with the burden of paying for all of this if this rule change and preventative detention or pretrial release system is adopted.
In addition, we do not believe the section on bail schedules that purports to allow them can be read consistently with the changes to (B)(3) which require least restrictive conditions and do not permit a bail to be imposed unless it is the “least costly” to the defendant. At a minimum, we think that needs greater clarity. If bail schedules are allowed, it would create the bizarre situation where everyone who posts bail gets out prior to first appearance and everyone for whom a detention motion is not filed by a prosecutor gets out after the first appearance.
Further, while the standard of “least restrictive” or “least onerous” has been used for centuries on this continent, it has always been understood to mean the least restrictive bail and conditions of release, not the least restrictive conditions. This rule in that respect could be corrected to say that the standard is the “least restrictive bail and conditions of release.” This would put bail and conditions of release all on a sort of level playing field for consideration by judges of what the least restrictive choice from the basket of options will meet the purposes for which a bail is set in the first place.
“Least costly” to the defendant is not a standard that we have seen before. Obviously, the least costly bail is no bail at all. This standard also ignores the fact that third-party indemnitors are by and large the persons who take on liability and arrange for the posting of a bond for a defendant. This is also a question of restrictiveness as well since a third-party provided benefit can meet the purposes of bail and have little restriction on the defendant. It is unclear how the rule would take that consideration into account. We would encourage adhering instead to the least restrictive bail and conditions of release.
One other problem with this rule draft in section (B)(3) is the status of bail—is it “bail” or is it a “condition of release.” We would argue it is a condition of release in this draft because everyone not preventative detained “shall be released.” (C) deals with conditions of release, and yet (B)(3) discusses conditions in a section pertaining to bail. Bail is either bail, or it is a condition of conduct and not a condition precedent to release, and therefore it should be moved to (C) if it is the latter.
For these reasons, we believe that creating the system of preventative detention and pretrial release in Ohio similar to New Mexico, New Jersey and Washington, D.C. is wrong on the merits, is too costly for Ohio, and is such a large shift in law and public policy that it belongs to the political branches of the government.
That said, we would submit that the committee could easily redraft the rule to harmonize it with what we consider best practices, in particular section (B)(3), so that it says: “In setting bail and conditions of release, the court shall impose the least restrictive bail and conditions of release that, in the judgment of the court, will reasonably ensure the defendant’s appearance in court, the protection of the safety of any person or the community, and that the defendant will not obstruct the criminal justice process.” This amendment would recognize that there is bail and also other conditions, and that the judge would select from the basket of possibilities the least restrictive bail and conditions of release. We would also title Rule 46 “Bail and Conditions of Release.”
The No Money Bail System Will Overwhelm Public Defenders, Judges and Prosecutors
Every defendant, under the new no money bail system, will have to see a judge and be represented by counsel prior to getting bail. In addition, for every defendant who is to be preventatively detained under the new system, that defendant must be afforded a right to counsel where a prosecutor will have to prove the elements of preventative detention within days of arrest. In addition, all persons detained via preventative detention will have to be tried within 90 days, which is the rule adopted in U.S. v. Salerno, which held preventative detention constitutional premised on the various safeguards in the law including the statutory speedy trial requirement.
This will completely overwhelm the system in Ohio. Ohio criminal courts will be focused on trying custody in jail cases rather than criminal cases. In New Jersey, this burden was hundreds of millions of dollars. This will trade off with other funding desperately needed to improve criminal defense and the courts in Ohio.
Ohio Already Has a Statewide Risk Assessment Process—This Rule Change Will Lead to Inconsistency and Chaos
The Ohio Risk Assessment System is a suite of ten risk assessments tools that were specifically authorized by the Legislature. In 2011, the Ohio Department of Rehabilitation and Correction was tasked by state statute to designate a single risk assessment system that would be uniform and be used statewide in what we might term the cradle-to-grave of the criminal justice process, from arrest to probation or parole. By regulation, the ODRC then specifically adopted the ORAS system and its suite of ten tools as the single risk assessment system that would be designated by law for use in Ohio. The suite of ten tools were validated in 2009 by Professor Edward Latessa of the University of Cincinnati.
This rule change would conflict with and over-rule the ORAS enabling legislation by instead allowing individual judges to: (1) use risk assessments that have not been properly validated (this rule change requires judges to simply find that the assessments are “objective” without any further clarification of what that might mean. “Objective” is not a term of art within risk assessment science, and thus it is a meaningless standard.); and, (2) would allow judges to use whatever risk assessments they want and not be required to use the ODRC’s ORAS system and the Pretrial Risk Assessment tool.
Unfortunately, no revalidation study to our knowledge has occurred since 2009 on any of the tools within ORAS. Certainly, in contacting the ODRC, we have received correspondence and confirmed that no revalidation or report on the ORAS tools exists other than the original 2009 report. We understand that in using an invalid tool today, trial judges across Ohio may want the authority to use tools other than ORAS since every decision in which ORAS is used could easily be challenged.
The answer to that, however, is that judges should simply be allowed to, within their discretion, consider the results of a validated risk assessment. The proprietors and users of the assessment should be in the position of advocating before the court that the assessment is valid, works, and is race and gender neutral with advocates on the other side arguing against the use and results of the algorithm. To require otherwise puts judges in an impermissible appearance of impropriety—a judge would approve the use of an algorithm and bless the science of that algorithm only to potentially have the decision to use the algorithm or the effectiveness or results of the algorithm challenged by the parties within a criminal case. A judge in that instance becomes a witness in the case either for or against a party in a criminal case, and for that reason we absolutely do not think the judiciary in the State of Ohio should get into the business of deciding whether algorithms will be used at all, much less getting into being the gatekeeper of what is essentially scientific evidence in favor of or against a defendant in a criminal matter.
In addition, judges have the option to employ or not employ the risk assessment, and the decision then to employ could be applied unevenly or in a discriminatory fashion that may be later subject to challenge.
While the ORAS system is currently invalid and being used anyway, that should not take away from the fact that the architecture for statewide consistency is already in place, and this rule change would take an absolute sledgehammer to that regime and any hope of consistency or validity of risk assessments in Ohio.
The Current Trend is To Move Away from Risk Algorithms In Criminal Justice
One-hundred-fifteen national civil rights groups announced last month that pretrial risk assessments should no longer be used in the criminal justice system. Of course, the groups want to see an end to monetary bail as well, but nonetheless the significance of this should not be lost on policymakers. The central argument is that these assessments lock in inherent bias and prevent long-term change. The signers included the ACLU, NAACP, MoveOn, and many others who have been central figures in the movement to reform America’s bail system.
Other voluminous recent scholarship has called into question whether the risk regime works, with one author going as far as saying that the risk-responsivity principle with embedded algorithms has functioned to become one of the central causes of the generational increase in incarceration we have witnessed since 1970.
In addition, this rule suffers from all of the defects that made the civil rights groups call for an end to risk assessments in the first place. While ORAS suffers largely from the same defects, there is at least some hope for validation and eventual testing for racial and gender bias. Of course, this rule change does not require testing for racial bias whatsoever. ORAS has never been tested for racial bias, and if it has, no validation reports to that effect have been issues by the ODRC. This rule would similarly doesn’t require that the instrument is valid in the first place, which should major cause for concern. In addition, the heavy use of demographic factors, already used in ORAS, could be used at greater pace if there is no regulation of these risk assessments, which could have the effect of magnifying the inherent biases in the system.
For these reasons, we think the draft of section (D)(6) should be stricken, and the language changed to harmonize it with the existing statutory regime which presumes that the discretion to select the single statewide risk assessment that will be used belongs within the discretion of the ODRC.
The Change to Subsection (F) Appears to Prevent Bond Surrenders and Changes the Forfeiture Practices Significantly in Ohio
Judges under this draft change will be unable to release a bail company from bond liability until the case concludes, even when a fleeing felon is presented to a judge in open court by a bail agent. This means that bail agents will not be able to surrender a defendant and have the bond released during the pendency of the case. In addition, if a defendant flees during a case, and then voluntarily returned, this language would automatically continue the bond through the end of the case even though bail companies have discretion to manage risk that this proposed rule draft purports to over-rule, which are matters of contract. This is inconsistent with current law and practice, and would make the bail bond business in Ohio no longer economically viable due to inability to mitigate risk and be released from liability by following through on our obligations. Obviously, this would cause chaos in the criminal justice system because no one would be there to return to defendants to court. Bail agents must be financially incentivized to do their jobs, and this would remove that incentive and make agents take on absolute liability no matter what the defendant does during the pendency of the case or the wishes of the third-party indemnitor who is also ultimately liable.
Yet, aside from that, this proposed language would make such radical changes to the laws of bail in Ohio that would be a wrecking ball on the bail business and similarly to the rights of defendants to be able to post bail and be released from jail in the State of Ohio. For third parties, they also would suffer the same detriment and would likely not post bail if there was no reasonable way to cure a failure prior to disposition.
Subsection (H) of the Proposed Rule Change is an Improvement and Comports with National Best Practices
While the U.S. Court of Appeals for the Eleventh Circuit recently joined the U.S. Court of Appeals for the Fifth Circuit in holding that bail schedules are constitutional presuming that there is review that comports with the due process clause, many jurisdictions are unfortunately not changing their laws and practice to implement the required due process.
The new subsection (H) in the proposed rule change does just that. It sets up a procedure where bail schedules are to be used up until first appearance. Then, judges would be required to then set bail essentially de novo under this standard because the presumptive bail under the schedule is not a consideration at a bail hearing when bail is being set by a judge. We think that is a good rule—in the Humphrey case in California and even in the Brown case in New Mexico the key common issues were giving weight, undue and perhaps even conclusive weight, to the bails set by the schedule rather than considering the evidence presented by the parties to make the necessary findings in order to set bail and the conditions of release. The procedure set up in this rule cures that issue.
In addition, while the outward limit of how long a bail review hearing from a bail set by a schedule and not posted has not been resolved, the two recent federal court of appeals decisions have affirmed that 48 hours is for sure constitutional. We would posit the two court business day rule is constitutional, and is a needed change. We do feel that courts should strive to meet the 48-hour rule to the extent they can. Unfortunately, we have heard of cases in Ohio where these hearings can take upwards of ten days, which we for sure know is unconstitutional.
We would make some suggestion, however, in regard to subsection (5). We do not believe reviewing a bond schedule to find that it “does not result in the unnecessary detention of defendants due to inability to pay” is a standard that has any particular meaning. Instead, we would suggest that prior to the setting of the schedule, judges responsible for setting the schedule be provided specific data about the charges, bails, results (appearance or new crime), trends in outstanding warrants, and jail population data or information (who’s in jail and why, i.e., preventatively detained, detained on bond, other holds, etc.), rather than mandating a particular standard. For example, if bails set in a particular class of cases are resulting in too much detention, then perhaps that is something judges should take into consideration. On the counter, if bails set in a particular class of cases are resulting in exploding levels of failures to appear in court and a rash of new crimes while on bail, then perhaps that is something judges should also take into consideration.
Local Ohio judges are tasked with crafting a careful balance of many constitutional interests when setting a bail schedule. They should have the discretion to continue to do that, unconstrained by any particular standard. That said, we think requiring that local discretion to be informed by specific local data and information would be an important move forward, and we would request the drafters of this rule consider going in that very direction. This may also be an avenue to look at greater transparency in that process.
We believe that the move to the no-money bail system as encapsulated in this rule change is a significant change in public policy and moves Ohio’s bail system in the wrong direction. That said, we noted some important parts of the rule that cure due process deficiencies in the current rule and practice should be moved forward, in addition to the other rule changes we did not discuss here.
We therefore believe that the following sections should be stricken from the proposed rule change or modified as suggested herein: title, (B)(3), (D)(6), and (F).
 Despite arguments from bail reformers that eliminating bail is necessary to protect the presumption of innocence, the Supreme Court has rejected that analysis: “’The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.’ Coffin v. United States, 156 U. S. 432, 156 U. S. 453 (1895). But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.” https://supreme.justia.com/cases/federal/us/441/520/
 https://www.theguardian.com/technology/2018/aug/28/digital-shackles-the-unexpected-cruelty-of-ankle-monitors The Equal Justice Under Law Foundation, now suing on the grounds of illegal pretrial supervision fees, is responsible for nearly all of the legal cases that have been brought arguing that bail schedules and bail impermissibly discriminates against the poor.
 Said Professor Robert Werth of Rice University: ““It has been argued that risk assessment tools could help stem the tide of mass incarceration. However, the evidence suggests that thus far, risk assessment instruments have contributed to expanding the number of people enmeshed in the criminal justice system – encompassing imprisonment, probation and parole.” The article is here: http://news.rice.edu/2018/06/06/study-risk-assessment-tools-may-increase-incarcerations-rates/ The study is here: