Making the Case for Bail Reform: Cuyahoga County

If you were arrested, could you afford a bond of $500?

Three different people could give you three different answers to that question. One person might be able to pay on the spot, another would never be able to afford that much, and a third person could pay it, but only after sitting in jail for a week or so trying to raise the funds.

Cuyahoga County Common Pleas Court Administrative and Presiding Judge John J. Russo thinks about that question almost every morning in his chambers in Cleveland, Ohio, as he looks at the daily incarceration reports for the county jail. Are people detained just because they are poor, while others go home because they have a savings account?

The fairness of America’s bail system is being debated in jurisdictions across the nation. Judge Russo decided that debate was not enough in Cuyahoga County, and he challenged legal experts to take a close look at how the county’s courts treat bail.

The Cuyahoga County Bail Task Force spent more than a year conducting interviews, compiling data, and building a perspective on bail and the potentials that exist for change.

“These are issues that have been talked about for years, but no one has ever put it all on paper for people to read,” says Judge Russo. “Now we have a document that addresses the needs of bail reform. We can use this as a lever to potentially open some doors of change.”

What makes Cuyahoga County unique are the 13 municipal courts managing misdemeanor cases, and binding felony cases over to the common pleas general division trial court and its 34 judges. Each of these municipal courts has its own template for setting bond, meaning there is no consistency. What may be a personal recognizance bond in one municipal court may be a $500 bond in another.

The municipal courts also lack the staff and resources of the common pleas court, which utilizes the verified Ohio Risk Assessment System Pretrial Assessment Tool (ORAS-PAT), along with one-on-one interviews with each defendant. The court’s bond commissioner uses both of these together when making a bond recommendation to a felony arraignment judge.

Written by Cleveland-Marshall College of Law Associate Professor Jonathan Witmer-Rich, the Cuyahoga County Bail Task Force Report, released on March 16, 2018, has a number of recommendations, including the establishment of a “centralized, consistent and comprehensive system of pretrial services initiated immediately after arrest.”

In other words, establish one location for those arrested to be processed, either in-person or by video. This would eliminate the inconsistencies that currently vary from court to court.

If establishment of a centralized system cannot happen quickly, the Task Force recommends deploying a consistent, verified risk assessment tool across the county, moving away from bond schedules whenever possible. Along with the ORAS-PAT in the common pleas court, the Cleveland Municipal Court recently began using the Arnold Foundation Risk Assessment tool instead of a bond schedule. Bond schedules assign bond amounts based on the charge rather than a defendant’s risk of non-appearance or danger to the community.

“This [risk assessment] system would lessen collateral consequences for the accused, such as loss of employment or housing while waiting in jail, and result in significant cost savings to government by reducing unnecessary detention,” the report states.

The report also notes that Ohio’s other major urban counties (Franklin, Hamilton and Summit) already have centralized bail processing, while Cuyahoga County’s 13 municipal courts and common pleas court show considerable inconsistencies in setting bail.

By establishing centralized bail processing and investing in pretrial services, the Bail Task Force believes Cuyahoga County could reduce unnecessary pretrial detention and jail costs.

Another major recommendation of the Bail Task Force is a uniform database containing a defendant’s criminal history and pending cases. All officials involved in bail and pretrial release determinations could then share this information.
In addition, the Task Force recommends holding bail hearings at least 6 or 7 days a week, so a person does not have to spend a weekend in jail on a misdemeanor charge for which they will likely receive a personal bond.

Judge Russo and others know that such changes would initially require a large financial expenditure to produce the anticipated reduced costs in the future. “We can show this report to a thousand people,” Judge Russo admits, “but without financial backing it won’t get very far.”

Judge Russo will be meeting with the other judges in Cuyahoga County to discuss the report, along with Cuyahoga County Executive, Armond Budish. Executive Budish has publicly supported bail reform in the past.

The function of bail serves two purposes: ensuring that a defendant appears in court and protecting the community from a defendant who poses a threat. The Bail Task Force notes that monetary bail should only be required to address the risk of failure to appear. For defendants who pose a threat to the community, the Bail Task Force recommends denying bail rather than setting arbitrarily high bond amounts. The report also recommends that bail be used only for defendants who pose a serious risk of threat to other individuals or the community at large.

Other suggestions in the report include:

  • Improved notice of court dates
  • Individualized bail determinations within 48 hours of arrest
  • Acceptance of bond payments 24 hours a day, 7 days a week
  • Presumptive release for certain, non-jailable offenses
  • No secured bonds (those that are collateralized by an asset) for municipal court offenses
  • A defense attorney present at all bail hearings
  • Implement a specialized risk assessment tool for violent risk offenders
  • Collect data to assess how the bail and pretrial release system functions
  • Appoint a regional coordinator for bail and pretrial release
  • Training for judges on best practices for bail and pretrial release
  • Training for prosecutors, defense attorneys and court staff

“This report is an excellent start and I am so grateful to Jonathan and the others who took the time to research and write this,” Judge Russo expressed. “Now we need to see what it will cost to adopt these recommendations, and what changes can be accomplished relatively quickly.”