When a defendant first appears before Judge Tim Kuhlman, he weighs a decision affecting lives well beyond the courthouse: what, if any, cash bond to set.
The Toledo Municipal Court judge speaks at length about the “debilitating effects” of keeping someone in jail. Studies show just 72 hours of incarceration threatens personal employment, housing, and treatment programs, he said.
And when a person’s job or home are threatened, those around them can be negatively impacted, too.
“We need to be sensitive to that,” Judge Kuhlman said. “And we need to understand if we're going to put a cash bond on somebody, and we are going to make them stay in jail for a crime they have not been convicted of, there needs to be a good reason to do that.”
Public safety, for example, he said.
Bond has become an increasing focal point for those advocating criminal justice reform across the country. Of 2.3 million people detained nationally in March, 536,000 were held behind bars pre-trial, according to the Prison Policy Initiative.
California last month became the first state to eliminate cash bail, an effort that goes into place late next year. In Ohio, pending Senate and House bills would permit all courts impose conditions, instead of setting cash bail, to ensure defendants appear. If enacted, the legislation requires courts use a validated risk assessment tool in guiding bail decisions.
Those statewide efforts look to Lucas County — which has a public safety assessment tool from the Laura and John Arnold Foundation — as a possible model for wider change.
The tool’s nine questions can evaluate how likely a defendant is to appear in court or possibly commit a new crime. By weighing this as well as factors such as employment status and community ties, judges can order a recognizance bond, impose conditions on bond, or require a traditional monetary bond.
A recognizance bond means defendants commit to appearing in court and do not pay anything.
Since the tool’s local implementation, defendants released on their own recognizance nearly doubled, from 14.4 percent from 2012-14 to 27.8 percent in 2015. This is the most recent data made available.
The Blade also assessed a spreadsheet of roughly 1,400 charges and corresponding bond amounts filed against about 300 people held in the jail as of late June.
In only 7 percent of those cases, a judge set total bond at $15,000 or less. In a plurality of cases, 44 percent, bond was between $15,001 to $75,000, followed by 20 percent at $75,001 to $150,000. Another 13 percent of cases had bonds set $150,001 to $300,000. Six percent of cases had bond set at $300,001 to $750,000.
Finally, in 10 percent of reviewed cases, defendants were held on bonds totaling $750,001 or more.
People detained on bonds under $15,000 were incarcerated 15 days on average, the review found.
This assessed group did not include inmates who, within five days of booking, posted bonds or saw their cases resolved. It also does not include federal court defendants ordered detained.
In reviewing The Blade's findings, Judge Kuhlman said he was encouraged only 7 percent of cases fell into the lowest cash bond category.
Judges are making a greater effort to decide bond not based only on the criminal charge a defendant faces, but instead based on risk: the risk a defendant skips court, harms a victim, or commits a new crime, Judge Kuhlman said.
“That number is smaller today than it was five years ago here in Lucas County, and we're working on making that number even smaller. The goal is to have the smallest number of people incarcerated in the Lucas County jail pre-trial that we can possibly do and still keep the community safe,” Judge Kuhlman said.
There is a tendency among judges, prosecutors, police, and the public to forget “innocent until proven guilty;” he said. All people arrested and charged with a crime deserve benefit of the doubt, and some swept up in the criminal justice system are in fact not guilty.
“That's the system that we as a society for over 200 years have agreed to. I don't want to change it,” Judge Kuhlman said. “We have to protect that, even at the setting of bond.”
A judge releasing defendants on their own recognizance can require check-ins with pre-trial services, electronic monitoring, no-contact orders, and drug testing.
Releasing defendants on their own recognizance also helps lower the inmate population at a county jail struggling with overcrowding. There were 404 people in Lucas County jail’s general population on Aug. 20, one inmate over the total permitted by a federal court order.
State Sen. Robert McColley (R., Napoleon) recently introduced legislation that, if enacted, would allow judges to set conditions instead of cash bonds. He said in many cases, particularly lower-level offenses, judges will ultimately sentence an incarcerated defendant to probation. But often times that defendant was held prior to sentencing not as a matter of risk, but bond, Mr. McColley said.
“Often times these individuals, post-sentencing, are never going to spend another day in jail provided they abide by the terms of their probation,” Mr. McColley said.
Mr. McColley said a risk assessment tool would be useful for judges to consider. This legislation has bipartisan support, but requires a solution that works for all Ohio counties, he said.
Excessive bonds carry another significant problem of restricting defendants’ ability to assist attorneys with their cases, said Carmen Naso, a senior instructor at Case Western Reserve University School of Law.
Incarcerated people fare more poorly on the same charge than those who are not incarcerated, Mr. Naso said. A defendant can help his or her attorney find witnesses, or seek drug and alcohol treatment, he said.
“People who are motivated by getting out of jail will agree to things they didn't do and override their attorneys' advice. All of a sudden you have people pleading to things they shouldn't be pleading to to get out of jail,” Mr. Naso said.
Mr. Naso, a member of the Cuyahoga County Bail Task Force, co-authored a report that reviewed Lucas County and others for their practices.
“We house an awful lot of people in jails before they're ever found guilty,” Mr. Naso said.
Jeff Lingo, chief of the criminal division of the Lucas County Prosecutor's Office, said officials focus on keeping people outside of incarceration whenever possible. He added it is costly to hold an inmate in jail.
Chief public defender Sean McNulty said in an e-mail he expected more inmates would be held at the lowest bond level of $15,000 or less.
The fact that the number is lower in the county may reflect efforts and programs in place to ensure people with low bonds or less-serious charges are not held for long periods with pending cases, Mr. McNulty said.
Mr. McNulty said it's important to consider cash or own-recognizance bonds because these pending cases affect the jail population. In addition, research shows the destabilizing effects of unnecessarily detaining people who are a low and moderate risk. They may be more likely to return to the criminal justice system, he said.
“Basically, a person that can safely reside in the community while a case is pending will be more likely to succeed than a similarly situated person that is held at the jail,” he said.
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