The Buckeye Institute Declares Victory On Bail Reform Amid Clear Defeat
The Buckeye Institute has done everything possible in their push to “end cash bail” in Ohio the last few years by advocating for the statewide mandate of pretrial risk assessments and the expansion of risk-based preventative detention. Recent changes to Rule 46 of the Ohio Rules of Criminal Procedure that took effect July 1, 2020 fell short of the recommendations for which the Institute advocated, but that hasn't stopped the Institute from claiming victory for their efforts.
Despite the Buckeye Institute consistently missing the mark on bail reform, they continue to stand by the use of pretrial risk assessments that have been heavily scrutinized by academia and other social justice groups and risk-based preventative detention that has been shown to actually increase mass incarceration. Ultimately when the Institute did not get what it want, it came out hard against the Ohio Supreme Court who, promptly, completely ignored the recommendations of the Institute.
The Institute recently issued a statement declaring victory. In the statement, the Institute proclaims that the system is no longer based on “access to cash” to be the primary determiner for release but instead the “primary determiner will be an assessment of whether the person is a danger to our communities.” Actually, that is not the case. If you read Rule 46, you’ll see the same factors to consider for setting bail that were in the old rule with one new change: a judge may now consider a pretrial risk assessment if the risk assessment is presented to the judge. That is not exactly the “primary consideration” and frankly it may be no consideration at all.
Further, the old factors did not include “access to cash” as a factor as alleged. Financial resources of the defendant was a consideration, although far from a “primary determiner.” Instead, judges consider the factors under the new rule that were the same factors that were settled-law under the old rules: “(1) The nature and circumstances of the crime charged, and specifically whether the defendant used or had access to a weapon; (2) The weight of the evidence against the defendant; (3) The confirmation of the defendant’s identity; (4) The defendant’s family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, record of appearance at court proceedings or of flight to avoid prosecution; (5) Whether the defendant is on probation, a community control sanction, parole, post release control, bail, or under a court protection order.”
The Buckeye Institute was pushing for a mandatory statewide consideration of pretrial risk assessments within the court rule, and they didn’t get what they wanted. Of course, this was a worthless fight anyway because Ohio has had a statewide risk assessment tool, the so-called ORAS, copied by many other states, that has been in operation for more than a decade. So, in effect, the Buckeye Institute fought for further codification of the status quo and lost.
Now, let’s get to where the Institute completely lost credibility: comparing Ohio’s bail system to New York and claiming that the rule, based on the advocacy of efforts of the Institute, fixed the public safety problem of New York.
Ohio’s prior rule, along with that of at least 45 other states, has always allowed for consideration of public safety for purposes of setting bail and conditions of release via weighing the factors in the rule, which include things like record of previous convictions or access to a weapon. In New York, public safety considerations have never been a consideration for purposes of bail either pre- or post-bail reform—only risk of appearance may be considered. The Institute proclaims the new Ohio rule allows for considerations of public safety and that it will be “ensuring Ohio courts make pretrial release decisions properly based upon public safety and the likelihood a defendant will appear in court.” Ohio Courts have already been doing that for decades, and nothing in the new rule changes that.
The Institute then wrongly claims that Ohio law allows all felons to be held without bail. Not so: Aggravated Murder, Murder, 1st and 2nd degree felonies, Aggravated Vehicular Homicide, and Felony OVI are offenses for which a judge can deny bail under Ohio law. In addition, there are other requirements in the law that make getting preventative detention difficult, like the standard of “proof evident and presumption great.” In fact, we believe, although there are no numbers to back it up, that preventative detention and the denial of bail altogether is used hardly at all in Ohio. Certainly, it is not allowed in “all” felonies, as the Buckeye Institute falsely asserts.
Now, if we want to get down to brass tacks, the Institute specifically opposed consideration of public safety for purposes of setting bail. Said the Institute: “Unfortunately, an amended version of the rule…allows courts to also consider the seriousness of the defendant’s alleged offense and previous criminal record when imposing cash bail.” Of course, that is what became law. The Institute then called for the legislature to fix the problem by expanding preventative detention, including specifically in the felony cases that the Institute falsely claimed judges already have the power to detain in addition to some misdemeanor cases.
Misguided or not, the pats on the back continue at the Institute. The Buckeye Institute proclaims that the Institute was “instrumental in securing these new reforms to Ohio’s cash bail system.” The Institute refers to the “cash bail” system in the past tense, as if the Buckeye Institute ended money bail in Ohio. They did no such thing. In fact, the ACLU of Ohio penned a letter to the Supreme Court to the opposite, criticizing the court for not going to the no-money bail system. Said the ACLU: “The Supreme Court of Ohio has the opportunity to enact critically needed bail reform, but the current version of Criminal Rule 46 falls quite short.” The ACLU pointed out that “the most recent version of Criminal Rule 46 now provides that financial conditions of bail be related to a defendant’s ‘risk of non-appearance, the seriousness of the offense, and the previous criminal record of the defendant.”
Judges can currently consider danger to the community in Ohio and an existing pretrial risk assessment that has been operational for over a decade. In short, the Buckeye Institute achieved no victory—the cashless system of risk-based preventative detention for which the Institute advocated was specifically rejected by the Ohio Supreme Court. If this is “a crucial step” toward reform then advocates for the status quo might want to contact the Buckeye Institute on how to take a page from their playbook.
At the end of the day, what did the Buckeye Institute achieve as part of bail reform? We’re not sure, but next to nothing is pretty close.