Ohio Supreme Court Did Not Disallow Risk Assessments In Ohio—They Were Made Mandatory By Legislative Edict A Decade Ago
Recently, the Ohio Supreme Court sent over bail reform rules to the legislature that did not include, in the body of the rules, the mandatory use of a pretrial risk assessment as part of the Supreme Court’s multi-year bail reform effort in Ohio. Now, bail reformers have taken to the media to criticize this move, proclaiming that we actually do need risk assessments and the Court should have made them mandatory.
In a recent opinion on Cleveland.com, Northeast Ohio Police Supervisor Michael Fuduric went so far as to say, “Risk assessments should be required, and conducted using information from the specific set of circumstances related to the suspect and the crime committed.” Fuderic went on to say, “The state legislature needs to refine the court’s recommendation, because more balance is needed – a balance that will not keep people jailed simply because they are impoverished, but at the same time will protect the public from risk.”
This view is both erroneous and mistaken.
This view is erroneous because the ACLU and NAACP along with hundreds of other civil rights groups and academics have called for an end to the use of pretrial risk assessments because they are both racially biased and ineffective.
The prevailing view is also mistaken because Ohio already has a statewide criminal risk assessment process. In 2006, the ORAS-PAT (“Ohio Risk Assessment System Pretrial Assessment Tool) was created. In 2011, the Ohio legislature mandated that the Ohio Department of Rehabilitation and Corrections adopt a single statewide pretrial risk assessment tool for use by all courts by virtue of the passage of House Bill 86. The Department then adopted the ORAS-PAT, which was developed by Dr. Edward Latessa of the University of Cincinnati. So, when Mr. Fuderic states, “Risk assessments should be required,” they already have been required for nearly ten years.
Commentators now unfortunately want to blame the Supreme Court for not adopting risk assessments and making them mandatory. One commentator said specifically that, “the court’s proposed language does not prohibit risk assessments during the bail process. But it does not specifically require them, either.” That is a true but also an incomplete statement—the Ohio Supreme Court decided not to overrule House Bill 86 from 2011. If the Court did so, the Court then would be tasked with approving risk assessments themselves, or the decision, under one version of the proposed rules, would have been left to local judges. Statewide consistency would have been lost or, in the alternative, the court of last resort, who may ultimately decide constitutional challenges to the risk assessment regime, would be tasked with ruling if they themselves acted constitutionally in approving a risk assessment – something that would have created an impermissible appearance of impropriety.
At bottom, the Ohio Supreme Court did not disallow risk assessments—to the contrary, the Court left the mandatory language in the ORAS statute from House Bill 86 completely intact. And, that makes sense, because the Court made the sound and appropriate decision from the perspective of the doctrine of separation of power to let the executive and legislative branch handle this, which we think was completely appropriate. To criticize the Court, as some have done, is a completely misguided and ill-informed position.