Detractors of tools say they can be racially based, expensive to smaller courts
By Andrew Welsh-Huggins
Associated Press
COLUMBUS, Ohio (AP) — The Ohio Supreme Court has rejected a recommendation that tools used to measure offenders’ suitability for being released after an arrest be made available to all judges as they make bail decisions.
Requiring the availability of so-called “risk assessment tools” was the top recommendation of a task force commissioned by the court last year to examine Ohio’s bail system.
The tools — there are several nationally — look at a variety of factors, including defendants’ age, criminal history and past failures to appear when analyzing what type of bond conditions should be set. More than 70 courts in Ohio already use them.
Supporters say the tools are a more accurate way to examine the two most important factors that judges consider when setting bond: Will the offender skip out, and will they pose a public safety risk if released?
Detractors say the tools can be racially biased, costly to smaller courts, and improperly override judges’ own experiences in setting bond.
Despite the task force’s recommendation, the court voted 5-2 against including the requirement, according to minutes of the vote obtained by The Associated Press through an open records request.
Chief Justice Maureen O’Connor and Justice Michael Donnelly voted in favor of the assessment tools. Justices Judi French, Sharon Kennedy, Pat Fischer, Pat DeWine, and Melody Stewart voted against.
The vote doesn’t preclude judges from using the tools, O’Connor, a strong supporter of the tools, said in an interview.
“There’s many courts in our state that do that, and will continue to that, because they have seen purpose and usefulness in it,” O’Connor said. O’Connor has been pushing to reduce the use of cash bail for years. In 2018, she sent a letter to more than 650 judges urging them to avoid imposing excessive fines, fees or bail simply to raise money.
Support on the bail task force was not unanimous for the assessment tools but was overwhelming, said Judge Mary Katherine Huffman, a Montgomery County Common Pleas Court judge and the chairwoman of the task force. She said she was disappointed by the Supreme Court’s decision but respected it.
Some opponents mistakenly believe such tools take decisions completely out of judges’ hands by forcing reliance on a calculation, which is not true, Huffman said.
“It is one more tool in the judge’s toolbox in terms of information in helping the judge make the decision,” Huffman said. “It does not make the decision for the judge.”
Lucas County courts adopted a public safety assessment tool in 2015. Since then, the court has seen drops in crimes committed by those out on bail and a drop in defendants on bail skipping court appearances, even as the number of defendants released without cash bail has doubled.
Judges recognize the potential for racial bias since minorities are overrepresented in corrections facilities in general, and take steps to keep it as racially neutral as possible, said Toledo Municipal Court Judge Timothy Kuhlman.
Combining a risk assessment tool and judicial discretion “gives us the greatest possibility of accurately predicting and letting the right people out of jail and keeping the right people in jail,” Kuhlman said.
Though the court rejected the assessment tool recommendation, it did send another recommendation to lawmakers, that judges set bail at the lowest amount possible that ensures a defendant will return to court but without imposing a financial burden on the offender.
Roughly 57% of inmates in Ohio jails are not there serving a sentence, but instead are awaiting trial, locked up because they can’t afford bail, according to Ohio Department of Rehabilitation and Correction data cited by the bail task force.
Jail in Ohio is more expensive than supervised release, with the average jail bed costing almost $65 per day, compared to $5 per day for maximum supervised release, the report said.
In New York state, a law took effect this year that does away with cash bail for the wide majority of misdemeanor and nonviolent felony cases. In California, the nation’s first law eliminating bail for suspects awaiting trial is on hold until California voters decide whether to overturn it.
