In 2018, something unusual happened amidst the political trench warfare in Washington, D.C., Congress passed, and President Donald Trump signed into law, the First Step Act, which aimed, among other things, to reduce the federal prison population and recidivism by changing sentencing laws.
The bill caught many off guard, partly because it was bipartisan, a rarity in D.C. And since when was criminal justice reform a priority? Why worry about criminals when law-abiding citizens were voicing their own needs and concerns?
Actually, the criminal justice system and its flaws affect everyday people more than they realize. For example, under the bail system, those charged with crimes aren’t released from jail before trial based on the seriousness of their offenses, but on their ability to pay a fee. That can leave violent defendants with money walking the streets while low-level poor offenders sit in jail.
And if those addicted to drugs, instead of receiving treatment, are sentenced to prison, they can’t learn how to face life sober and are more likely to end up incarcerated again. That doesn’t make society better or safer.
“If people are concerned about public safety, they should be concerned about a criminal justice system in which we’re warehousing people, some for a good chunk of their lives, then throwing them unprepared back into the world,” says Marais Jacon-Duffy, spokesperson for Ohio Justice and Policy Center, a nonprofit that pushes for criminal justice reform and helps those in the system.
“The vast majority of people in prison or jail will get out and be our neighbors,” Jacon-Duffy says. “I, for one, don’t want them coming out with additional problems and difficulties, feeling like they have no options to live their lives.”
Jacon-Duffy says most people want to believe that the criminal justice system will never intersect with their lives. But according to a 2019 report by Cornell University, about 45% of Americans at one time have seen an immediate family member incarcerated.
Also, a 2017 study by the Annie E. Casey Foundation found that nearly 6 million children in the United States have at some time in their lives lost a parent to prison or jail.
With those numbers, one would hope the criminal justice center is fair and works like it should. Not so, says Charles Rittgers, an Ohio criminal defense lawyer with the Lebanon-based firm Rittgers & Rittgers.
“When you’re on the ground, you see the disparities that can occur between the folks that have the resources, who can hire good defense counsel, and those who don’t,” Rittgers says. “Two individuals can get two vastly different outcomes.”
The Ohio General Assembly has recognized the problem and has acted to improve the state’s criminal justice system. Just recently the legislature passed a law making it more likely that drug users and addicts, but not traffickers, are sent to treatment instead of prison. Also, state legislators have made it easier for offenders to seal their criminal records so they can land a job after serving time, and eliminated the death penalty for those with severe mental illnesses.
Reformers say it’s not enough. They want to amend or scrap the bail system, eliminate the death penalty for all offenders and allow well-behaved prison inmates to reduce a larger percentage of their sentences.
It’s not just Ohio progressives calling for reform. The Buckeye Institute — a conservative Columbus-based think tank that advances free-market policies and limited government — has recommended many of the same reforms as Ohio Justice and Policy Center.
“We recognize a need to get addicts into treatment, not into prisons, which are already overcrowded,” says Andrew Geisler, legal fellow at Buckeye Institute. “Prison is not an effective way to rehabilitate someone and only makes it harder for them to get a job and financial help.”
Treatment vs. prison
Sending addicts to treatment instead of prison not only provides them the help they need, it also reduces the populations of overcrowded prisons. Today in Ohio, more than 50,000 inmates are housed in prisons built for 38,000, according to Ohio Justice and Policy Center.
Geisler says prisons became overpopulated in large part because the number of drug violations in the Ohio Revised Code rose from 146 in the mid-1970s to 752 in 2020.
“We were looking to be tough and harsh on crime,” Geisler says. “Hopefully by now, most people realize that the talk should be about treatment, not harsh criminal penalties, except for drug trafficking.”
According to the Buckeye Institute website, a Journal of the American Medical Association study determined that prison didn’t deter nonviolent addicts from using drugs again, and that treatment was more effective in getting them to stop.
Also, a 2017 study by the nonpartisan Pew Research Center found no correlation between imprisonment and resolution of drug problems, including frequency of drug use, overdose deaths and drug-related arrests. This study also recommended treatment.
Redirecting addicts from prison to treatment, and differentiating them from drug traffickers, was one recommendation of the Ohio Criminal Justice Recodification Committee, appointed in 2014 by state legislatures to update the entire criminal code. The committee consisted of judges, prosecutors, defense attorneys, police, and prison officials.
A result of the committee’s work was Ohio House Bill 1, passed by the general assembly in December, which makes drug treatment in lieu of prison more readily available to criminal defendants.
A similar proposal, Senate Bill 3, would have gone even further but died in the legislature, to the disappointment of reformers. It would have reclassified fourth- and fifth-degree felony drug possession charges to misdemeanors.
SB3 was opposed by judges, prosecutors and police. They argued that sometimes the only way to win cooperation from drug users in identifying traffickers is to threaten them with a felony conviction. Nevertheless, Geisler says additional sentencing reform is needed for drug users.
Sealing criminal records
Both HB1 and SB3 addressed another criminal justice issue: the sealing of criminal records. HB1 has expanded eligibility for record sealing.
When a criminal record is sealed, it’s no longer available to the public or employers for background checks — although some employers, like schools and medical institutions — can still see the record. Sealing is different from expungement, in which the record is destroyed.
Not all records, including those involving sex and violent offenses, can be sealed. Expungement is even more limited and is available, for example, to victims of human trafficking who were forced into prostitution. Depending on the offense, records can be sealed one-five years after a sentence is completed.
Record sealing helps former inmates find a job and avoid re-offending. That’s important because, according to a 2018 study by Ohio Justice and Policy Center and Policy Matters Ohio, convicted felons typically are blocked from acquiring housing and jobs after they’re released from prison, due to state laws and administrative rules. Limiting the prospects of former inmates, instead of making society safer, can have the opposite effect.
“We (at Ohio Justice and Policy Center) help people seal records because it can open a ton of doors for them,” Jacon-Duffy says.
HB1 shortens the length of time some offenders must wait before applying for record sealing. It also eliminates a cap on the number of convictions that are eligible for record sealing for fourth- and fifth-degree felonies and raises the cap for other felonies and misdemeanor violations.
Reformers, however, were frustrated that SB3 didn’t pass. In addition to reclassifying some felony drug-possession offenses to misdemeanors, it would have allowed drug offenders to seal their records immediately after completing a court-ordered treatment plan.
“As long as returning citizens who have paid their legal debt to society are unable to find a job and earn a living wage in Ohio, then we still have work to do on this front,” Jacon-Duffy says.
Nearly everyone believes that the bail system is unfair, and even unconstitutional, but neither the state nor any of Ohio’s 88 counties have reformed or eliminated it yet. Reform advocates like Ohio Justice and Policy Center say the system has led to overcrowding in regional and local jails.
The purpose of bail is to ensure that offenders show up for court dates. They pay the court a fee, then they’re set free. If they make all the required court appearances, the court refunds their money, even if they’re found guilty.
Defendants can also seek financial assistance from a bail bondsman, paying the bondsman 10% of the bail amount. The bondsman then pays the court the total fee.
The problem is that poor people can’t afford bail or a bondsman, so they sit in jail until their court dates, even for low-level crimes. Meanwhile, better-resourced offenders can walk free for more serious offenses.
“We need a system geared around public safety,” Geisler says. “If a serious crime is alleged or someone has a history of crime, keep them detained. If they’re nonviolent, there’s no reason to keep them in jail before trail.
“We’ve shown that if an offender gets a text message reminding them about a court appearance, that’s more effective than cash bail,” Geisler says.
Ohio Supreme Court Chief Justice Maureen O’Connor, in a July 3 speech last year, said advocates for bail reform have demonstrated that detention based on the inability to pay bail devastates poor and minority communities.
“If cash bail is required, it should be set in an amount that the defendant actually has the ability to post,” O’Connor said. “The purpose of bail is not to keep people in jail but allow release pending resolution of their case.
“The Constitution demands release without bond unless there is a proven risk of flight or danger to the community, including victims and witnesses,” O’Connor said.
“The justice system all too frequently fails to uphold just bail practices.”
Geisler says algorithmic tools, like one created by the University of Cincinnati
, can determine who should and should not be released from jail pending trail, based on several risk factors.
Death penalty debate
In January, Gov. Mike DeWine signed House Bill 136, which exempts from the death penalty those with four debilitating mental conditions: bipolar, schizoaffective and delusional disorders, and schizophrenia.
But criminal justice reformers, including Ohio Justice and Policy Center and the Buckeye Institute, want to eliminate the death penalty entirely, as do nearly 60 percent of Ohioans, according to an ACLU Ohio/Ohioans to Stop Executions poll done earlier this year.
That’s at least partly because innocent people are sometimes placed on death row, something The Innocence Project, a New York City nonprofit that helps overturn wrongful convictions across the United States, has proven.
In February, a bipartisan bill ending the death penalty in Ohio was introduced in the state Senate. Legislators supporting the bill say the long legal process involved in the death penalty is more expensive than keeping someone in prison for life.
However, not all legislators support the bill. House Speaker Robert Cupp, a Republican, says the death penalty should be reserved for the most horrific crimes.
Here’s a rundown of a few other changes proposed by reform advocates. They want to:
Increase the amount of time off a sentence for good behavior.
Geisler says inmates in Ohio can earn back 8% of their prison time through good behavior and by obtaining education and training. In comparison, Indiana and Kentucky inmates can earn back 33% and 72%, respectively. The national average is 15%. “We want to give people good incentives to leave prison instead of joining gangs while they’re there,” Geisler says.
Collect more data on criminal justice practices.
Geisler said studies and surveys show whether policies and laws are working as intended. They would show, for example, whether and why courts in certain counties are handing down stiffer sentences, and if minorities are treated more harshly. In her July 3 speech, O’Connor, the Supreme Court chief justice, said, “Without data, we are proceeding blindly, and that is contrary to acting in the best interest of the people of Ohio.”
Phase out private, for-profit prisons.
Earlier this year, President Joe Biden asked the Justice Department to end the nation’s reliance on private prisons. He said corporations are profiting off incarceration. “Anytime you have a group that can benefit from the incarceration of other human beings, you will have a higher likelihood of injustice,” says Rittgers, the Ohio criminal defense lawyer. “We all know some people are willing to do unethical things in the name of money.”
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Editor’s note: In March 2021, the Ohio Supreme Court made two rule changes in the bail system. First, the court will require that county courts, as their first choice, release individuals on personal recognizance without paying a fee before resorting to formal bail. Second, the court is calling on counties with more than one municipal or county court to adopt a uniform bail schedule, so that everyone in the court system receives equal treatment. The changes are scheduled to take effect July 1.
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The views expressed herein do not necessarily represent those of the Ohio State Bar Foundation.