Ohio considers altering its bail system

Mary Smith, owner of Smith Bonds & Surety, talks about a bill designed to reform the state's bail system during an interview in her office Wednesday, April 4, 2018, in Toledo.

The United States Constitution outlaws excessive bail along with cruel and unusual punishments, while the Ohio Constitution guarantees almost everyone the right to bail before trial.

But that is not sufficient for Ohio lawmakers who want to reform the state’s bail system because of the costs associated with locking up defendants waiting for trial — and they’re using Lucas County as the model for statewide changes.

“Paying for them to spend time in jail is a cost to our local governments that’s becoming more burdensome,” state Sen. Robert McColley (R., Napoleon) said.

He introduced companion legislation in the Senate that mirrors House Bill 439, which would allow all courts in the state to impose conditions instead of setting monetary bail to ensure defendants will appear in court, and requires courts to use a validated risk assessment tool to guide their bail decisions. 

“We need to find balance in the system,” he said.

Lucas County’s public safety assessment tool came from the Laura and John Arnold Foundation, and it is one of many choices local courts could choose from should this legislation pass.

Lucas County Common Pleas Court Judge Gene Zmuda has been a supporter of reform efforts and uses the county’s safety assessment to get another look at what sorts of risks releasing a defendant might entail.

Based on nine questions, the tool can evaluate how likely a defendant is to show up for court dates, and the likelihood a defendant will commit a crime while out of jail. By weighing those measurements and other factors like employment status and community ties, a judge can decide to grant a recognizance bond — meaning defendants sign a promise saying they will appear in court without paying anything — impose conditions on bond, or require a traditional monetary bond.

“You always have to rely on the particular facts of any case,” Judge Zmuda said. “I like it because we didn’t have this kind of evidence before.”

But the Lucas County experiment has not worked as well as county officials have claimed, said Mary Smith, president of the Ohio Professional Bail Association and owner of Smith Bonds & Surety. 

“I’m not just fighting for my business,” she said. “That’s not the real reason I’m doing this. The cost to the taxpayers is astronomical.”

Pretrial services in Lucas County has a $1.2 million budget for 2018, said Michelle Butts, who oversees the department. Jail costs have continued to increase, from a total of $27.7 million in 2015 to an anticipated $34.2 million in 2018. That does not match the trend officials saw in Summit County, which implemented a comparable program and saw every dollar spent on pretrial services save the county $10 in jail costs. 

Pretrial services screens most defendants who are booked into the Lucas County jail by using the PSA tool, and enforces the conditions set by judges as a term of their bail. Fourteen officers do the screening, and an additional five officers monitor defendants out on a conditional recognizance bond. 

“We knew we weren't giving the judges very good information,” Ms. Butts said, “and over the course of time it turned into our recommendations being charge-based more than risk-based.”

More than half the people screened by the public safety tool are not recommended for release, meaning they are more likely to receive a monetary bail requirement. Since the PSA was implemented in the county, the number of defendants released on their own recognizance nearly doubled, from 14.4 percent from 2012-14, to 27.8 percent in 2015, which is the most recent data made available by the county. A more updated report is expected in the next 30 days.

Since 2015, when Lucas County shifted away from bail schedules, Mrs. Smith said she has 50 percent fewer clients in the county. She said her business, which incurs significant financial penalties when defendants fail to appear, has done and will continue to do a better job monitoring defendants awaiting their day in court than a government bureaucracy can. 

“When somebody fails to appear, we can cross county lines,” she said. “Toledo police can’t cross county lines to bring somebody back.” When a defendant fails to appear, her company also takes on the cost of tracking down the defendant.

Should the pending bills in the General Assembly pass, Ohio would join a group of states across the political spectrum in altering or reforming its bail system. Conservatives may want to cut costs by using pretrial monitoring instead of costly incarceration, while liberals may be more concerned with the harms associated with spending time in jail.

“No matter what you care about, it all leads to the same path,” Rachel Sottile Logvin, vice president of the Pretrial Justice Institute, said. 

Mrs. Logvin is opposed to the bail system as it exists in most states, which by its nature offers advantages to those with greater assets.

“The impoverished are detained and the wealthy are released,” she said. 

Though the bill pending in the statehouse allows the use of monetary bail, American Bail Coalition Executive Director Jeffrey Clayton expects monetary bail would largely be done away with in Ohio if the bill passes. 

“We’re not huge fans of it,” he said of the bill. “It would put a lot of hurdles in place for judges to impose bail.”

Reforms can be introduced that make bail more affordable for the poor, Jonathan Smith, COO of Smith Bonds & Surety and Mrs. Smith’s son, said, and Ohio legislators do not have to look far for options. Michigan allows a bondsman to put up a quarter of the stated bond amount when the defendant has a 10 percent option, meaning that a defendant would only pay  $250 to a bondsman to satisfy a court’s $10,000 bail requirement. 

Both bills will continue moving through the legislative process. More testimony is expected in the House Criminal Justice Committee prior to any vote.

Contact Zack Lemon at zlemon@theblade.com, 419-724-6282 or on Twitter @zack_lemon.