Get Out of Jail Free

Guest Contributor: Darceny Winston 

           Imagine playing Monopoly, but each player starts with a different amount of funds. You start the game, buy a property, then land on “Go to Jail”. You move your piece to that space then wait until your next turn to pay the $50 to get out of jail. Unfortunately, you started the game with only $50, which you already spent on your property, so you must sit in jail to figure out how to pay the “get out of jail” fee.  While sitting in jail, you cannot collect any payment from that property and in fact, you must sell your property to make enough money to get out of jail. However, the player who started with $100 and gets sent to jail has no issue leaving the jail quickly. Essentially, this is the inequality of monetary bail.

Freedom Should Not Be a Game of Chance

            Judges set bail to ensure people attend trial and to keep the public safe by keeping violent or repeat offenders in jail. However, when a judge sets a bond too high for a person to meet, that person is restrained in jail until his/her trial.  The people affected by monetary bail are awaiting trial; they have yet to go through a trial and be found guilty of the offense they were charged with. Rather, they are forced to wait in jail for their trial solely because they cannot afford to pay bail, all while they are presumed innocent.

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Source: Chris Potter/Flickr/CC BY 2.0

            Nationally, minorities are more likely to be arrested than white individuals because of over-policing in their communities. For example, once arrested, African Americans, particularly those 18 through 29, receive higher bond fees than white individuals. The higher likelihood of African Americans having contact with the justice system blended with the expectation to pay a higher bail fee results in an inequality of minorities being detained. A 2012 study discovered that the rate of African American individuals detained in jail until trial was almost five times higher than detained white individuals.

            According to a 2015 local news report, 51percent of inmates processed in the Hamilton County Justice Center in 2014 were African American. However, the number of arrestees is twice the amount of the African American population as a whole residing in Hamilton County. This implies that the African American community in Hamilton County is disproportionately affected by the justice system. Because African American individuals are more likely to be arrested and detained, their incarceration results in long term suffering for their families and communities. Incarceration leads to job loss, which leads to income loss, which leads to eviction, and even leads to losing custody of children.

            Cincinnati is making great strides in correcting the inequality of monetary bail. In April 2019, the Cincinnati City Council approved a motion eliminating city prosecutors from requesting monetary bail for non-violent misdemeanor offenders. While this was primarily enacted to eliminate wealth as a factor in determining who is detained in jail, there was also motivation to conserve financial resources as the Ohio Justice and Policy Center discovered that incarcerating one person at the Hamilton County Justice Center costs about $69 per day.

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Source: Fandom

            Before the motion was passed, about 75percent of people arrested were forced to wait for their trial in the Hamilton County Justice Center solely because they could not afford to pay bail. City Council, led by Councilmember P.G. Sittenfeld, shifted from monetary bonds by instructing city prosecutors to seek an “own recognizance” bond that allows individuals accused of non-violent misdemeanor offenses to leave jail before trial without being subjected to a bond fee.

One Man’s Low Bail is Another Man’s High Bail

            The reform effort is not without push-back from the Hamilton County Prosecutor’s Office. Hamilton County Prosecutor Joe Deters does not believe there is a need for a bail reform effort in the county court system and is “baffled why people continue to argue that bail reform is an issue in Hamilton County.” The Hamilton County Prosecutor’s Office agrees that non-violent misdemeanor offenders do not always need to be held before trial and releasing these individuals before trial saves taxpayer money. However, the Prosecutor’s Office has discretion in seeking bonds when necessary, such as to ensure the arrestee attends trial or to protect the community. While the Prosecutor’s Office may only suggest high bonds when it is necessary, the Prosecutor’s Office is assuming the low bonds recommended are, in fact, low. By not taking into account an individual’s socio-economic status, the Prosecutor’s Office recommendation of a $1,000 bond with the requirement that $100 must be paid before leaving is effectively the same as a $100,000 bond with a requirement of a payment of $1,000 for members of low-income communities.

            The Hamilton County Public Defender’s Office realizes it is not enough to require the city prosecutor to release non-violent misdemeanor offenders without imposing monetary bail. Rather, there needs to be a complete bail reform extending to the Hamilton County Prosecutor’s Office. Since the county is not currently required to release non-violent misdemeanor offenders on their own recognizance, the Public Defender’s Office is urging the judges setting bail to consider not only the likelihood of an arrestee reoffending, but also the individual’s ability to pay when determining the bail amount. If an individual does not have an income or has a low income, requiring him or her to pay any fee in order to be released would constitute excessive bail under the Eighth Amendment. Therefore, the Hamilton County Prosecutor’s Office should adopt a blanket policy that allows for releasing non-violent misdemeanor offenders.

Goals for the Future

            While Cincinnati as a city is taking steps in improving the bail system to be less centered on a person’s wealth, there are still improvements that can be made in Hamilton County. Leading the way in improving the bail system on a national level is Harris County, Texas. In 2018, Harris County became the first case to question the cash bail system in federal courts. Harris County was using a fee schedule system to set bail based on the charge. A woman filed a lawsuit against Harris County claiming that using a fee schedule in determining her bail amount violated her due process and equal protection rights because this process allowed those who could afford bail to pay and punished those who could not. The court determined the fee schedule was unconstitutional because it discriminated against misdemeanor defendants who could not afford to pay their bail. Harris County is now implementing a policy of automatic release of low-level misdemeanor detainees, as well as providing resources to them while they await their court date, such as reminders of when they must appear in court chance-card-vintage-monopoly-get-out-of-jail-free-design-turnpikeand transportation support services.

The City of Cincinnati is working to make arraignments fair for individuals of all socio-economic backgrounds. However, Hamilton County needs to recognize the inherent discriminatory issues with monetary bail, take a lesson from Harris County, Texas, and allow all non-violent misdemeanor arrestees a “get out of jail free” card, rather than the select few who can afford it.

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Darceny Winston is a 2L at the University of Cincinnati College of Law. She has a passion for criminal defense and is currently a fellow for the Ohio Innocence Project and an executive member of the Criminal Law Society. Though originally from Louisiana, she now resides in Northern Kentucky with her 2 cats.

 

Whiteness and The Benefit of the Doubt

Guest Contributor: Caitlin Cliff-Perbix 

One swampy afternoon in September I made the mistake of convincing myself that I had time during my lunch hour to run a few errands and get a quick, healthy lunch. In the frenzy of grabbing my garment bag filled with thrifted blazers that I had planned to alter (a tip for all you public interest folks) as well as my stack of nearly-overdue library books, I forgot my wallet.

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I was sweating through my jumpsuit when I arrived at Allez —a community bakery in Over-the-Rhine.  I picked out a seltzer (lime) and a veggie sandwich from the fridge but realized my mistake when I reached into my pocket to pay.

“Don’t worry about it! Just get us back the next time you’re here!” chirped a man bustling behind the counter—kindly waving-off my stuttered apologies as he slung fresh, crusty loaves to the lunch crowd.

I am built to worry though. I rummaged through my backpack while I asked for another option to pay.

“Do you have the Cash App? Or Venmo maybe? I really don’t want to walk out of here with a sandwich without paying.”

“It’s really fine! Just come back and pay when you have your wallet on you again.”

Still, I persisted. The idea of not paying a small business for my meal made me uncomfortable.

“Could I write down my order so that when I come back you know that I’m paying for what I took?”

He smiled, shook his head, and reassured me again.

“Really, it’s okay. Just pay us back when you can.”

That week I stewed over the interaction at Allez. I wondered how the interaction would have played out if I had a visible disability, or if I appeared to be experiencing homelessness, or if I had not been white-presenting in a gentrified neighborhood.  How did the man at Allez make the judgment call to give me a free meal and believe that I would pay him back?

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Businesses have no obligation to give away their labor, services or products for free; and as long as they do not refuse a patron service based on a legally protected status, they are not breaking the law. However, what I really wanted to know was if my whiteness was acting as a symbolic promissory note. Did it make me more trustworthy? No. But did it signal to the man at Allez that I was more trustworthy? That was my concern.

The following week I returned to Allez to pay my sandwich-debt when the lunch rush had quieted.

I learned that the man who I had spoken to is the owner of Allez—Tom Mckenna. I thanked him for giving me the benefit of the doubt, then quickly added “but why did you do it? What about me indicated to you that I would come back?

To that, he simply responded “I do it for everyone.”

Tom told me that he came from a background of financial insecurity. When he had the opportunity to become a business owner, he said that he wanted to create a bakery that would feed everyone regardless of their circumstances. It is his practice to always give customers the option to pay later if they don’t have any money and he purposefully does not count his till at the end of each day.

“Most people come back and pay. Some people don’t. The point is that they are getting fed.”

If you’re reading this and thinking “He gave you a free sandwich, and you paid him back. So what?” —then you are asking the right question. What does this seemingly innocuous exchange mean in a broader cultural context?

Tom’s policy is important because instead of making judgment calls based on seconds-long interactions with patrons, he is removing an element of bias from his business practice.

He said that he has a similar blanket policy for his bathroom—the bathroom is for employees only. Although, he added that he has made exceptions for people with children.

Tom’s policy is so significant because when we choose to give people the benefit of the doubt, our biases play a role in determining who is trustworthy, and therefore deserving of our kindness.

What happens when our biases take over and we do not give people of the doubt? In 2018, a Starbucks employee in Philadelphia called the police because an African American patron tried to use the restroom before he bought a coffee. I have personally relieved myself in countless Starbucks, chain restaurants, and miscellaneous gas stations without buying anything.  No one has ever questioned my actions or right to exist in those spaces, and I am willing to bet that no one ever will.

In an even more horrific example, in 2015 a white University of Cincinnati campus police officer shot and killed Samuel Dubose, a 43-year-old African American man. The officer allegedly stopped Dubose because he had a missing front license plate[1]. I once drove my car for five months with a broken taillight. During that time, I drove through the same area where Dubose was shot and killed, and neither my white husband nor I were ever pulled over. We are always given the benefit of the doubt.

This phenomenon is not confined to our daily social interactions. It exists in every facet of American society— even within the professedly “objective” walls of the legal system.

Brock Turner and Amber Guyger are two examples of people who have been given the benefit of the doubt by the legal system because they are white. I am not angry that Brock Turner sat in jail for only three months after he sexually assaulted Chanel Miller while she was unconscious (okay, I am because three months in a county jail is hardly punishment to an affluent Stanford student). I am angry because his judge, Aaron Persky, chose to see Turner’s humanity and potential—however, despite being permitted to use discretion in his position, Judge Persky historically would not give that same benefit of the doubt to the young black and brown men coming before his bench.

I am not angry that Amber Guyger was sentenced to just ten years in prison (which I would argue is substantial, but that is another matter) for murdering Botham Jean. I am angry that it took a majority-black jury to convict a white police officer for the murder of an unarmed black man in his own home. I am angry that black and brown humans are in prison and have been in prison far longer than ten years for non-violent offenses because white judges and juries put those black and brown humans there. This is because judges and juries are given discretion under the guise of “objectivism” while overlooking that we all carry biases.

When we pretend that bias does not exist it creates a ripple effect that may begin with our social interactions but ultimately disrupts our legal system. While policy solutions may exist, what we need is a cultural shift. The United States justice system, despite what some lawyers may believe, does not exist in a vacuum. Confronting our biases is uncomfortable and painful work, but that confrontation is the only route toward creating a society that administers true justice.

I challenge my white-presenting peers to pause and evaluate the mundane social interactions that occur each day and think about how your race, sex, gender identity, gender expression, sexual orientation, age, ability and the combination of these attributes play into how you are being treated.

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I then urge you to pause and observe others. Do you see the same kindnesses being afforded to others? Do you give others the benefit of the doubt indiscriminately? While it is crucial we hold our systems accountable, we must start by looking inward first.

Caitlin Cliff-Perbix is a 2L at the University of Cincinnati College of Law.  She is the offspring of educators, musicians, & immigrants, and is a fellow for the Nathanial R. Jones Center for Race, Gender and Social Justice. She is a native of Licking County and resides in Northside with her husband.

[1] Front-license plates are required by law in Ohio.

Judge Nathaniel R. Jones: A Life of Wisdom, Courage, and Moderation

Guest Contributor: Dean Joseph P. Tomain

Giants do walk the earth. There are heroes among us. And, on January 26, 2020, Judge Nathaniel R. Jones, a legal giant and a hero to many died at the age of 93 after eight decades of fighting for civil rights, of fighting for justice.

Judge Jones was a direct legal descendent of Walter White, William Hastie, Thurgood Marshall, and Robert Carter. As a recipient of the highest awards given by the National Underground Railroad Freedom Center, the Freedom Conductor Award, and by the NAACP, the Spingarn Medal, his name is forever linked with artists such as Marion Anderson, Duke Ellington, and Richard Wright; with historical figures such as Rosa Parks, Dorothy Height, John Lewis, and John Hope Franklin; and with friends such as Leon Higginbotham and Quincy Jones. His life and service have also been recognized by world leaders including Nelson Mandela, Bill Clinton, and Barack Obama. Impressive company, indeed.

Judge Jones with Nelson Mandela
Judge Jones, along with his wife Lillian Jones, speaking with Nelson Mandela. Source — Cincinnati Enquirer.

As a lawyer, he served in private practice, as Assistant U.S. Attorney, as General Counsel of the NAACP, as a Supreme Court litigator, and, after 23 years on the United States Court of Appeals for the Sixth Circuit he was a valued Biglaw partner for two decades. His resume as a lawyer is incomparable. However, being the giant that he was even a field as capacious as law was insufficient to contain his talents and his interests. Does any reader know, for example, that he harbored a desire to captain an Ohio River coal barge? His daughter Stephanie made that happen.

Judge Jones at Fed Courthouse
Judge Jones standing outside of the Nathaniel R. Jones Federal Building and U.S. Courthouse in Youngstown, Ohio.  AP Photo/Ron Schwane

Judge Jones’ life story from his Youngstown youth to the well of the United States Supreme Court and from his membership on the Kerner Commission to serving as an election observer in South Africa is told with great grace in his 2016 memoir Answering the Call: An Autobiography of Modern Struggle to End Racial Discrimination in America. Judge Jones heard the call to fight for justice when he was a 10-year-old and he never wavered, he never ignored racial injustice, he never stopped fighting against it. He was answering the call right up to his last speech on civil rights at the dedication of the Nathaniel R Jones Center on Race, Gender and Social Justice at the University of Cincinnati College of Law on November 14, 2019.

Answering the Call is required reading for anyone who wants to know about the many lives of Judge Nathaniel R. Jones; it is also required reading for anyone who wants to understand the history of civil rights over the last 80 years.

 

One of the lesser-known aspects of Judge Jones’ career is that he was a superb teacher and scholar. His scholarship can be found in law review articles and is manifest in his many public speeches. He was a remarkable teacher in many venues. For over 30 years he served as an adjunct professor at the University of Cincinnati College of Law. He also taught at Harvard, Yale, Stanford, any number of other United States law schools, and in Cincinnati public schools. Even though he was a formidable classroom teacher, his teaching role transcended the classroom and affected every phase of his life. Just ask any of the dozens of law clerks that he has shepherded throughout his 23 years on the bench. Those clerks have become leaders in private practice, law professors, cabinets secretaries, and outstanding public servants.

Judge Jones on the bench
Judge Jones hearing a case at the Sixth Circuit Court of Appeals in 1989. John Curley/Cincinnati Enquirer

Still, his teaching reached beyond his chambers and beyond the court room. He was unstinting in his community service. As a member of corporate and nonprofit boards his teaching continued. Indeed, as a board member he might best be characterized as a CCO – chief conscience officer. His participation in board meetings was always germane and on matters of justice and civil rights indispensable.

What qualities, gave Nathaniel R. Jones such stature as a civil rights voice and leader and as a citizen committed to justice?

 

Judge Jones possessed an abundance of the virtues needed to live an outstanding life; to live the life of a hero. He possessed wisdom; he possessed a piercing intellect. Judge Jones was a principal actor in many of the key civil rights activities over the last half-century and more. He knew everyone. He knew his history, his politics, his society, and his community. He remembered everything. And, he was able to bring all of that intellect and knowledge and all of those experiences together to confront racial discrimination in the United States and in other parts of the world.

He possessed the courage to keep his eyes open and speak his mind when confronted with injustice and he had an extraordinary capacity to focus. He never wavered in his commitment to civil rights; he never lost sight of the need for constant awareness of civil rights violations and the need to recognize them where they existed. No forum was inappropriate for him to acknowledge racial bigotry and discrimination. No audience could prevent him from talking about his passion.

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Judge Jones speaking with former President Clinton, former First Lady Carter, and former President Carter. Glenn Hartong/Cincinnati Enquirer

He also possessed moderation. Politics of any kind can be intense and contentious. Racial politics can draw bloodshed and has been fatal. In the face of such contention his voice was always steady and clear; forceful and persuasive; and never shrill, never false, never expedient. He spoke his mind in the world with dignity, diplomacy, and deep humanity.

In Judge Nathaniel R. Jones, the virtues of wisdom, courage, and moderation that he possessed in such abundance contributed to and advanced the cause of justice for all of us.

Joseph P. Tomain is Dean Emeritus and the Wilbert and Helen Ziegler Professor of Law at the University of Cincinnati College of Law. He served as Dean of the College for 15 years, where he continues to teach now. His areas of expertise include energy law, land use, government regulation, and contracts. He has written numerous books, papers, and articles covering those topics and more. Dean Tomain has presented his scholarship in front of numerous distinguished groups including the Conference of Chief Justices, the Association of American Law Schools, the American Bar Association, the Federal Bar Association, the Cincinnati Bar Association, and the US Sixth Circuit Conference. He also serves on the Boards of a number of professional and civic organizations, including the Ohio Justice and Policy Center.

With Great Discretion Comes Great Responsibility.

Brady Violations in the Story of Michael Sutton’s Wrongful Conviction.

Nikita Srivastava (’19)

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Michael Sutton with his sister, Lucretia Sutton.  

Do you remember the day you finished high school? I want you to go back to that time. Imagine, you’re 17 years old again: You’re hanging out with your friends; you’re excited about the end of high school and the start of a new beginning.  Days before your graduation, you go out with your closest friends and stay out all night. You dance, laugh, and celebrate the first steps to a bright new future. For most of us, that celebration night ends with hugging good-bye, quietly sneaking into our houses without waking up our parents, and sleeping in the next day. For most of us, it’s a great night. And, for most us, the night does not end with us being arrested for an attempted murder we did not commit. Unfortunately, that is what happened to Michael Sutton.

On the night he celebrated finishing high school, Michael found himself with three of his closest friends being arrested. Instead of hugging their friends goodnight and returning to the comforts of their home, Michael and his best friends spent the night in jail for a crime they did not commit. Instead of going off to college and getting his degree in business, Michael was sentenced to 41 years to life in prison.

Continue reading “With Great Discretion Comes Great Responsibility.”

What is the Ohio “Heartbeat Bill,” and How Did it Come to Be?

It appears that the Ohio legislature’s 8-year wish will finally come true. The controversial “heartbeat bill” is poised to go into full effect in Ohio after both chambers of the Ohio legislature passed the resolution for the third time since it was first taken to the Ohio General Assembly floor. First introduced in Ohio in 2011, the bill was twice vetoed by former Ohio governor John Kasich, and failed to garner enough votes to override the veto both times. Now, with first-term governor Mike DeWine at the helm, the bill is sure to survive.

Passed as Ohio House Bill 68 and Senate Bill 23, the “heartbeat bill” makes abortion illegal once a fetal heartbeat is detected, which could be as early as 5-6 weeks after pregnancy. The bill only permits abortion after a heartbeat is detected if a woman is experiencing a medical emergency. The bill does not provide an exception for rape or incest.

The controversial legislation was authored by Janet Porter, a pro-life activist who lobbied for the passage of the country’s first partial-birth abortion ban, and secured passage of the Woman’s Right to Know Law. Porter says she and others “literally crafted [the] legislation to be the arrow in the heart of Roe v. Wade. It is made to come before the United States Supreme Court.” Anticipating the retirement (or worse) of the Court’s aging, liberal justices, Porter is hopeful that challenges to the bill will arrive at the Supreme Court when there are additional conservative justices that will uphold the bill once it is Ohio law and, perhaps, overturn Roe v. Wade.

Continue reading “What is the Ohio “Heartbeat Bill,” and How Did it Come to Be?”

Playing the “Race Card”: A Contradiction in America’s Colorblind Society.

Nikita Srivastava (’19)

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Image from HuffPost.

“You can’t play your race card when discussing this issue. Bringing race into this matter will not get us anywhere. I am telling you now, it won’t be a constructive conversation.” John Doe said this to a woman of color while we were discussing the socio-economic effects of government programs in one of my undergraduate classes. He angrily slammed his hands on the table and began chugging his water. I imagined that he grabbed his water to cool himself down as if there was a fire inside of him that he needed to put out. Another classmate stated that our country was founded on racism and I stated, “these policies are supposedly ‘race-neutral,’ but are not. By not considering race, we are disregarding more than half the people in this country.” (I thought to myself: race is a part of everything in this country, ignoring it only makes it worse.) As silence ensued, my professor quickly turned to another portion of our assigned reading. However, I could not focus on anything else. I called my mother after the class and recalled the event to her. She said, “With each generation, things get better, but then you hear someone say something like that. It makes you think: are we better now?”

Continue reading “Playing the “Race Card”: A Contradiction in America’s Colorblind Society.”

Hot Topics

Politicians and Blackface

Recently, Florida Secretary of State Mike Ertel resigned after photos of him dressed in blackface as a Hurricane Katrina victim surfaced. Ertel was appointed as Florida Secretary of State by first-term governor Ron DeSantis. Governor DeSantis, a Republican, defeated Andrew Gillum – the first African American democratic gubernatorial candidate in Florida – last November in the election. Ironically, (perhaps not), DeSantis is the same man who told Floridians just days before the election: “the last thing we need to do is monkey this up…” This was a clear reference to Mr. Gillum’s race, and a message to Floridians not to elect the state’s first Black governor. Apparently, Governor DeSantis’s Secretary of State shared some of the same racial sentiments as the man who appointed him. 

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Image from Orlando Weekly

Blackface was one of the most notable features of minstrelsy. What, ironically, started off as African American slaves mimicking slave masters and owners turned into white people putting burnt cork or shoe polish on their faces and acting as Black caricatures.

Continue reading “Hot Topics”