Is Bail Reform Legislation Quietly Gaining Steam? Judges, Law Enforcement, and Local Officials Need to Engage Before it is Too Late

Bail reform is happening in Ohio, even though for some reason no one seems to be watching.  Perhaps other issues have risen to the top – vaccine mandates, the supply chain issue, the cheer and promise of the Holidays.  Nonetheless, it is time for officials in Ohio to engage and understand what’s at stake with Senate Bill 182[1] and House Bill 315[2].

Buried in these 268-page companion bills are all the ingredients for a New York style bail reform bill.  Micah Derry, Bail Reform Campaign Director of powerhouse advocate Arnold Ventures described the bill an “unheard of” coalition of over 50 legislators, Arnold Ventures, Americans for Prosperity, and the ACLU of Ohio that would “overhaul the money bail system.”  The goal of the legislation, said Derry is to go to a system that has “extremely limited use of pretrial detention.”  What percentage of the 12,000 defendants a day will get out of jail for free?  It will be quite a large number, that is for sure.

On the merits, the legislation absolutely ties the hands of judges and prosecutors and will turn the criminal justice system in Ohio into a font of the New York or Houston Bail experiments that have failed so miserably.  In particular, the legislation:

Creates an absolute right to an affordable bail in Ohio, mandating the release of all defendants on whatever they can afford, and reserving detention for the extremely narrow category of defendants where bail can be denied (lines 4978-79 and 5050-51).  This is the original New York bail reform with much narrower exceptions.  We forecast 80-90% of defendants currently held pending trial will be released under this legislation.

 

Will create a very strong presumption of release on own recognizance unless a prosecutor puts on a mini trial within days of arrest and proves a flight risk or danger to the community by clear and convincing evidence and that there is no lease restrictive alternative (lines 4844-51).[3]

 

Eliminates consideration of public safety for purposes of setting bail, making Ohio only one of a handful of states (New York, for example) that disallow consideration of public safety (lines 4972-4975, public safety eliminated as a factor).  On top of that, consideration of prior criminal history is eliminated (lines 4866-4873, prior criminal history eliminated as a factor in favor of these new factors).

 

Creates a rebuttable presumption of a release on own recognizance (lines 4852-55) and the presumption also applies to all non-monetary conditions of release (interlock devices, drug testing, pretrial supervision, GPS monitors, etc.).

 

Defendants cannot be charged for pretrial supervision or any other pretrial services regardless of whether they can afford it or not (lines 4938 and 4948, line 5018 allows for collection post-conviction, but local officials will have to go to court and compete with all other criminal assessments).

 

The ability to pay inquiry will restrict judges’ ability to impose bail (starting on line 5032).

In short, this legislation creates such a strong presumption of release on recognizance with no other conditions of release, it will be nearly impossible to get over the presumption to impose a bail.  To the extent prosecutors can get over the presumption, it will take a mini trial within days of arrest, written orders by the court, and a tremendous amount of work for prosecutors, judges, staff, and public defenders not funded by this legislation.

On the merits, these experiments have failed.  If you read one letter on this topic, read District Attorney Kim Ogg’s letter[4] explaining what happened with bail reform in Houston, Texas after they went down this exact road.  The letter explains that bail reform, such as being proposed in Ohio Senate Bill 182 and House Bill 315, was the key reason why a crime wave is now gripping the community.

Other states going the opposite direction of Ohio, including: (1) Utah, which repealed a similar law in March, 2021 after only a few months in effect[5]; (2) Colorado this spring rejected further bail reforms of the misdemeanor and felony system due largely to the crime wave[6]; (3) Texas passed legislation to restrict the availability of personal or recognizance bonds[7]; (4) Delaware passed legislation to restrict the availability of personal or recognizance bonds in light of the problems caused by HB 204 from a few years ago[8]; (4) Washington State in the 2021 session rejected the Uniform Laws Commission model bail legislation, upon which Ohio SB 182 is based; and, (5) New York partially rolled back legislation that is less expansive than SB 182, with the Mayor, Mayor-Elect and many other officials calling for further roll backs[9].

Finally, one thing is abundantly clear.  We are in the middle of a crime wave.  Hate crimes in Columbus, which will get an affordable bail, increased by 55% last year.  Homicides in Columbus increased by 63% over Chicago’s mere 34%.  Recidivism is the key problem, which is not difficult to figure out.  This legislation will do nothing to crack down on recidivism or make the public more safe.  The only impact of this bill is to make the public less safe.  That is so because such repeat and violent defendants will be emboldened, getting PR bonds instead of jail and getting PR bonds instead of a surety bond (which will increase failures to appear in court and increase long term fugitive rates).

Instead, Ohio may want to take a look at another bipartisan approach to this problem—that both Texas and Delaware are going in the exact opposite direction and passing restrictions on who gets a free bond, such as if you have already failed to show up you do not get another free pass.

Sensible legislation is out there—Senate Bill 182 and House Bill 315 is not that.  It’s time for local officials to tell the legislature in Columbus: We don’t need your New York-style bail reforms.

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[1] https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA134-SB-182

[2] https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA134-HB-315

[3] The fiscal analysis makes clear this is an unfunded mandate to local governments: “Common pleas, municipal, and county courts generally will incur significant annual costs related to hearing timelines, hearing reminder notifications, pretrial supervision, and generally to comply with the provisions of the bill. These costs include the potential need to hire additional staff and to purchase technology.”  In addition: “Local prosecutors’ offices may incur additional administrative and staffing expenses to be available for hearings on additional days outside of current practice.”

[4] https://ambailcoalition.org/download/52/texas/6014/hcdao-bail-crime-public-safety-report-09-02-21_0.pdf

[5] https://www.kuer.org/politics-government/2021-03-30/utahs-bail-reform-law-will-be-repealed-in-may-what-happens-next

[6] https://www.thedenverchannel.com/news/360/colorado-jail-reform-bill-would-significantly-change-arrests-and-bail-bonds-but-faces-major-pushback

[7] https://spectrumlocalnews.com/tx/south-texas-el-paso/news/2021/09/13/gov--abbott-signs-texas-bail-reform-bill-into-law-

[8] https://legis.delaware.gov/BillDetail?LegislationId=68643

[9] https://www.politico.com/news/magazine/2020/04/23/bail-reform-coronavirus-new-york-backlash-148299