Please accept this letter in opposition to the proposed changes in Criminal Rule 46 ORC.
The proposal has an ill-conceived language which will hamper the bail process, increase costs to defendants and local courts. Additionally, the processes laid out may endanger victims. Clearly, the intent of the proposed changes is to assist all citizens with a fair, easy to understand and cost-effective system. We have consulted with a highly experienced criminal defense lawyer, and our findings are quite worrisome. Currently, the Legislature has a bill under consideration which will address a number of the issues related to Criminal Rule 46. is not in the Courts best interest to interfere and create confusion with rule changes when legislative changes are in process.
It is my supposition, as an expert working at the best Chicago dui defense firm, that the proposed changes are costly, complicated and wholly unnecessary at this time. To support the claim, consider the following:
The first and second sentences in the proposed change may be in opposition to one another. A long-standing common law is the “least restrictive conditions are always applied”. The court has choices on how to reasonably ensure appearance, safety, and justice. In sentence two there the phrase “least costly to the defendant” is not necessary if the rule in sentence one is followed. It appears the sentence was added to provide clarity but in reality, it would be more ambiguous and could lead the situations where individual jurisdictions would create rules, fees, and requirements that could be in conflict in sentence one and be found unconstitutional.
As currently proposed, ambiguity could result in delays for the release of defendants, not speed up the process nor reduce costs as one would hope is the goal.
The rule change is not necessary as the Legislature revised the rules a few years ago and judicial intervention now when updated legislation is being considered, would create ambiguity and unnecessary expense.
Improving technology and improved software capabilities should streamline implementation and lower cost options for monitoring defendants prior to trial. However, the practical reality is that the software algorithms will not always address unique community realities. Current ankle bracelets and GPS monitoring are still a work in progress. Recent high-profile cases such as the Brian Goolsby case in Columbus point out these systems can fail with horrific consequences.
The Legislature defines parameters and implementation in law. Money, bail and other forms of encumberments are tried and true ways to ensure appearance and should not be replaced by a single “risk management software” approach. Research from other states who have moved from practical cash in hand bail to a software risk management process has not seen good results. Luckily in Ohio, we can look to outcomes and data from other states and see implementation difficulties that the risk management software never took into consideration.
New Mexico and California have seen costs skyrocket as the court (the state treasury) are bearing the costs for indigent defendants. What sounds like a great idea just is not quite there yet.
In an attempt to help people with the least resources, rule 46 sounds great but can have dire consequences for defendants, who cannot pay the fees, or run into availability issues for the technology A defendant may sit in jail while monitoring devices or other technologies become available. The Bail system may need improvement but to discard the entire system in hope that technology will save the day is problematic. Is a government managed system being better than outsourcing it to businesses who have a proven record meeting the needs of society? The system may need reform, but to remove the livelihood of businesses with a long track record of increasing the probability of court appearances and replacing it with a government-mandated system with proven flaws is not in the best interest of the citizens of the State of Ohio.
It all comes down to “skin in the game”, financial or possibly personal debt motivates defendants to appear. To rely solely on a new technology which is still a work in progress seems to be a risk that the Supreme Court would not want to undertake.
To illustrate the point please consider the following scenario
A defendant is arrested on a low-level felony assault or a DUI defense, and is brought to a bail or risk assessment hearing. The defendant hires the representation of a dwi lawyer, is employed, and so determined to be able to pay and is found to be a small risk and ordered an ankle bracelet for tracking. To secure release the Jail levies a fee for the bracelet, installation, and monitoring; the defendant gives up right to a speedy trial, but no bracelets are available. The defendant could have posted the $1000 bond but must be incarcerated in a local jail until a device becomes available. The defendant loses their job and incurs the massive expenses of jail time, installation of the bracelet and the monitoring fee. The new risk management process causes the defendant to lose their job, now is unemployed and unable to pay the fees so they leave the jurisdiction. The bracelet is removed and destroyed so the defendant is now free to go anywhere as the original jurisdiction law enforcement is not able to trace the defendant. The local jurisdiction issues warrant. Had the bail/bond system been in place the defendant would have kept their job, appeared in court and be adjudicated. Others entities have provided side-by-side comparisons for costs so that is not necessary to be included here. When comparing differing scenarios to remove the bail bond option is not in the best interest of the defendant, the victim, or the governmental entity
All the platitudes in the world about helping the least among us do not hold up in this case. Courts are not receiving enough funding, so levy fees; the State is taking over what has been a functioning system and will now collect a risk assessment fee. Businesses who offer the needed bail/bond service are going to be put out of business. Having a government entity replace a functioning, if flawed system brings into question why the Supreme Court is entering a process with an overriding desire to impose more government. Historically has shown government taking over where a business be can do the job, is not be incredibly effective. No one is saying that the system does not need reform, but it is the job of the Legislature to enable the courts to do their job. The Supreme Court should not create rules which may cause more hardships to all involved for the sake of trying a new technology that may not the panacea hoped for in this situation.