From the Judges Desk
By The Honorable Timothy N. O'Connell Montgomery County Court of Common Pleas
O
Common Pleas Court Adopts New Risk Assessment Tool
ver the last several years the subject of bail reform has been a frequently debated and discussed topic in Ohio and the Nation. This writer recalls a conference with Chief Justice O’Connor several years ago in which, among other things, she advocated for some form of bail reform by the courts. Generally speaking, the advocates of bail reform have urged the elimination, or substantial reduction, of cash or monetary bonds. In the January – March 2020 edition of the Ohio Lawyer Magazine, representatives of the Ohio Association of Criminal Defense Lawyers and the Ohio Prosecuting Attorney’s Association submitted articles on the subject of bail reform. This occurred in the context of proposed changes to Rule 46 of the Ohio Rules of Criminal Procedure. The Ohio Association of Criminal Defense Lawyers (“OACDL”) advocated for the provisions that allow pretrial release on condition of expanded participation in alcohol and drug treatment protocols, diversion programs, day reporting and comparable alternatives. From a criminal defense perspective, the proposed changes were supported in that there should be a consideration of the least costly financial condition. Further, OACDL asserts the courts should also consider each defendant’s ability to pay when setting a financial condition of pretrial release. The OACDL was concerned about the amount and type of evidence that might be considered by the court in a Rule 46 hearing. Naturally, the OACDL advocated for a change in wording to prevent the use of evidence derived at a pretrial release hearing in future hearings, i.e. motion to suppress hearing and trials. It should be noted the proposed changes to Rule 46 of the Ohio Rules of Criminal Procedure by the Ohio Supreme Court are designed to improve court appearances and reduce recidivism. There are three standards set forth in the proposal. First, the modifications provide a presumption of a summons or a personal recognizance during pretrial release. Second, the modifications provide that if a financial bond is to be made, the court shall make the bond the least costly to the defendant. Third, the modifications provide that if a person is held in jail, they be 14
Dayton Bar Briefs September 2020
brought before the court within two business days for the purpose of consideration of bond. Some of the circumstances which prompted a ground swell of support for bail reform were that the present system is inconsistent with the presumption of innocence, pretrial detentions are a major destabilizing event for accused persons, and longer pretrial detentions are associated with failure to appear at future hearings1 The Ohio Prosecuting Attorney’s Association (“OPAA”) agrees that a person’s wealth, or lack thereof, should not determine eligibility for pretrial release. The OPAA is concerned that bail reform may lead to a public safety hazard, particularly in domestic violence and felony drug trafficking cases. Prosecutors appear to be concerned, because these are relatively low level felonies, that there would be a tendency to release those accused when there is high likelihood of danger to a victim or the community. The OPAA is concerned with a reliance on a risk assessment tool, more specifically, the ORAS-PAT. They feel the tool would not adequately inform a judge’s decision about the conditions of pretrial release. The OPAA argues a generic risk score cannot replace the individualized assessment of a judge. Finally, the OPAA does not want the algorithms replacing human judgment.2
continued on page 15
ENDNOTES: 1 Christopher T. LowenKamp, Ph.D, Maria VanNostrand, Ph.D and Alexander Holsinger, Ph.D, The Hidden Cost of Pretrial Detention, (Houston, TX: The Laura and John Arnold Foundation, 2013), pg. 3, 4. 2 Balancing Bail Reform: Two Views on Ohio Criminal Rule 46, A Prosecutorial Perspective, by Louis Tobin, Ohio Lawyer Pg. 14, 15 (January – March 2020)
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