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.

 

Innocence March: Recognizing the Wrongfully Convicted

Guest Contributor: Brian Howe

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Attorney Brian Howe with OIP fellow Nikita Srivastava (’19)

On March 24, 2018, more than five hundred men and women marched through Memphis Tennessee.  Most of them had spent a large part of their lives in prison– a combined 3,501 years among them– for crimes they did not commit.

The march was the closing event for the 2018 Innocence Network conference, a gathering of exonorees and lawyers working on behalf of those wrongfully convicted.  Exonorees came from every state in the country and from countries across the globe. They marched with attorneys and advocates and family. They held signs demanding change in the system that had wronged them.  Demanding accountability. Demanding, at least, public recognition that innocent men and women were being arrested and convicted by agents acting on the public’s behalf.

Continue reading “Innocence March: Recognizing the Wrongfully Convicted”

More Questions than Answers

Questions for the University of Cincinnati community in the wake of the Tensing trial.

Guest Contributor: Robin Martin, UC Associate Professor

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Hamilton County Prosecutor Joe Deters has decided to retry Ray Tensing for the murder Samuel DuBose after a mistrial.  As this process unfolds, it is time for UC employees, the city of Cincinnati and universities across this country to revisit the core principles of inquiry and questioning and start blazing a different trail toward justice. Continue reading “More Questions than Answers”

Beyond Policing: “From Re-entry to No Entry”

Experts explain that structural reforms are necessary to stop police killings at Cincinnati Law/Cincinnati Project event.

How can the University of Cincinnati prepare for the trial of Ray Tensing?  That’s the question audience members are contemplating after today’s panel discussion, “DOJ Reports on Policing in Ferguson and Baltimore:  What They Mean for Cincinnati and the Country.”

The Cincinnati Project, UC’s Center for Student Affairs, and Cincinnati Law’s Center for Race, Gender, and Social Justice collaborated to  present five experts to discuss police killings across the nation.  Using the Department of Justice’s reports on Ferguson and Baltimore as a springboard, panelists examined such issues as the root causes of police violence against people of color, challenged the existence of a just criminal justice system, and urged a re-examination of the meaning of “public safety” that includes input from affected communities.   Continue reading “Beyond Policing: “From Re-entry to No Entry””

Ferguson, Baltimore…and Cincinnati: Lessons from DOJ Investigations

Terence Crutcher. Keith Lamont Scott.  Korryn Gaines. These are just some of the most recent additions to the growing roll of people killed by police. Communities across the nation struggle for answers, strategies, and, most importantly, an end to the violence.  On October 4, 2016, the University of Cincinnati will host this important discussion, building upon lessons learned from Department of Justice (DOJ) investigations in Ferguson, Missouri, and Baltimore, Maryland.

DOJ found patterns of racial discrimination in stops, detentions, and use of force in both places.  In Ferguson, DOJ  said the police viewed African Americans “less as constituents to be protected than as potential offenders and sources of revenue.”  In Baltimore, DOJ found that the systemic constitutional violations stemmed from structural failures. What do these findings mean for other cities, including Cincinnati?

To be sure, Cincinnati has been cited as an exemplar for reform for troubled cities because of the collaborative agreement between the police and communities.  What can Cincinnati’s experience add to our understanding of race, class, and policing, particularly when it comes to addressing endemic inequities?

Co-sponsored by the Cincinnati Project of the College of Arts and Sciences and Cincinnati Law’s Center for Race, Gender, and Social Justice,  a panel discussion will address these and other issues. Participants include the following: attorney Alphonse Gerhardstein, law professor Janet Moore, activist Iris Roley, history professor Tracy Teslow, and Africana Studies professor Earl Wright II.

The event begins at 3:30 p.m. in room 450 of the Lindner Center.  Please join us.