Category: Uncategorized

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.

            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.

            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 and 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.

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.

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.

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’ 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.

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.

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.