FROM THE JUDGES DESK

Common Pleas Court Adopts New Risk By The Honorable Timothy N. O'Connell Montgomery County Court of Common Pleas Assessment Tool

Over 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 advo cated 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 par ticipation 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. mo tion 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 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 sup port 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 hearings 1

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 as sessment 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)

FROM THE JUDGES DESK: Common Pleas Court Adopts New Risk Assessment Tool continued from page 14 DAILY COURT REPORTER

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With those ideas in mind, the Montgomery County Common Pleas Court has been working toward reforming our bail construct. The court examined the Arnold Public Safety Assessment Tool and found it preferable to the ORAS-PAT. On July 27, 2020 the pretrial screening officers of our Case Management Department will utilize the Arnold Safety Assessment as the pretrial risk assessment tool for all bond recommendation reports in Montgomery County. This is done in conjunc tion with the pretrial screening section of the case management department going to a new offender case management system – the Ohio Community Supervision System.

The Arnold Public Safety Assessment (“Ar nold PSA”) is a risk assessment tool developed by the Arnold Foundation. It has been adopted by courts around Ohio and is used in place of the ORAS-PAT. The Arnold PSA relies on three key measures in providing a risk assess ment score: new violent criminal activity, new criminal activity, and failure to appear. Further, the risk assessment score is based on nine in dividual factors that help determine a specific supervision strategy for an offender.

The nine risk factors are: 1) age at current arrest; 2) current violent offense; 3) pending charge at the time of the offense; 4) prior misdemeanor conviction; 5) prior felony con viction; 6) prior violent conviction; 7) prior failure to appear in the past two years; 8) prior failure to appear older than two years; and 9) prior sentence of incarceration.

The Arnold PSA score considerations are: first, new violent criminal activity; second, new criminal activity scale (low 1-6 high); and last, failure to appear scale (low 1-6 high).

The judge will receive two files. The first is the public safety assessment report and bond recommendation. It provides the Arnold PSA score based on the three measures and nine factors. The second file is a supplemental information report that contains a listing of the offender’s personal information, criminal his tory and a summary of the offense(s) charged for an offender arrested on a felony or violent misdemeanor.

The judge can also receive a pretrial supervi sion matrix which sets out the conditions for release that apply relative to the release level. For instance, if the recommended release level is a 2, as set out in the public safety assessment report and bond recommendation, then the conditions for release will include manda tory statutory conditions, court reminders and criminal history checks every month.

There are four pretrial release levels. The highest is 4 and the lowest is 1. At the high est level, the accused would have mandatory statutory conditions, receive court reminders and have criminal history checks every month. The offender would also have to check in twice a month. Other case specific conditions could be added if court ordered.

The writer is of the view there is a consen sus among Montgomery County Common Pleas Court Judges to, in effect, move to the presumption set forth in the three methods of the proposed change to Rule 46 of the Ohio Rules of Criminal Procedure by the Ohio Supreme Court. The Arnold PSA and the use of the Ohio Community Supervision System should aid in this goal. The judges are certainly mindful of the purposes of Rule 46 to ensure appearances in court and public safety.

The judges are not adverse to holding Rule 46 hearings in individual cases to allow pros ecutors and defense attorneys to be heard if the advocates believe some modification of the court’s bond decision is needed.