Avoiding Bail: Inside Franklin County's Pre-Trial Release Efforts

Jan 21, 2019

It’s noisy and bustling in courtroom 4D. Six days a week, defendants held in the Franklin County Jail are marched in for arraignment.

A prosecutor reads their charges one by one, and public defenders walk up and down the line holding hushed conversations with their new clients. Then the judge makes the decision.

“Bond is going to be a recog—you’re going to get out of jail,” Judge Mark Hummer tells one defendant. "Recog" or ROR means release on recognizance—essentially a promise to return for your court date.

“The conditions are no acts and threats of violence and stay away from the prosecuting witness,” Hummer goes on. “If she calls you, hang up. If she texts you, show it to your attorney. If you see her on the street, run away. Do you understand that?”

“Yes sir,” the defendant says.

The point of bond is to ensure people show up for court and don’t commit other crimes before they get there. Holding defendants is expensive and it can cost suspects their jobs, leave them behind on rent or bills, and put their children in limbo.

Judge Mark Hummer.
Credit Nick Evans / WOSU

An ROR is good news for the defendant; he’ll be waiting for trial from home. But there’s a lot of work behind the scenes to help make that happen.

At about 5 a.m. the same morning, Erin Duning was at the Franklin County Jail interviewing suspects ahead of their arraignment. Those hearings start at 9 a.m., so she and the pre-trial services team show up early to compile information about residence, employment and criminal history.

“Then I’ll use those interviews to compile a report for the judge in hopes that each of you can potentially get an ROR today and be released,” Duning tells a pair of inmates. “That’s our goal, we want to avoid the likelihood that you have to post any kind of bond to get out of jail.”

The team started in 2015, and they work to encourage pre-trial release. With low risk cases, they’ll recommend a simple ROR, and as the risk escalates, they’ll propose conditions like checking in with a supervision officer, or entering drug or mental health treatment if it’s needed.

But judges still often demand bail as an incentive to make sure a defendant stays on track. The problem is many people can’t afford to pay. A recent study of Franklin County’s jail found on average, 69 percent of inmates were awaiting trial or other decisions in their case.

Erin Duning working on pretrial reports.
Credit Nick Evans / WOSU

ACLU of Ohio Executive Director Ben Guess calls those figures shocking. He says bail reform is the group’s top priority, and notes the number of people awaiting trial in Franklin County’s jail is higher than the national average. But he sees a silver lining.

“I think the most encouraging thing about the study is the study itself,” he says, “The fact that Franklin County is taking seriously efforts at bail reform, which is a concern nationally. So people in Franklin County should be proud of that fact.”

Duning and her colleagues develop their recommendations for the judge by running those early morning jail interviews through risk assessment tools. It’s a kind of scored checklist including questions like age at first arrest and how often someone has failed to appear in court. But Guess says there’s a problem with those tools.

“We know that African-Americans are arrested at far greater rates than white people are, and so if you apply a risk assessment that is based on prior arrest, that doesn’t tell the whole story,” he says.

Those disparities play out in Franklin County and the study notes some judges expressed skepticism about risk assessment that fails to consider inherent bias. According to the results, people of color are less likely to get an ROR, even when controlling for the severity of the charge.

Ronald Fowler oversees the pretrial services team.
Credit Nick Evans / WOSU

It’s a problem Ronald Fowler, head of the pre-trial services team, acknowledges. He’s African American, and over nearly 30 years he’s watched how tough-on-crime policies have disproportionately impacted people of color. He has faith in the county’s judges, but as one person, he’s not sure how to fix the problem.

“Except to participate in this process,” he says. “Be even more mindful of what I’m trying to do. That’s how we combat it—that’s what this whole resurgence in bail investigation is about: trying to make sure that the field gets more level.”

Right now, many offenses lie outside the scope of pretrial services, and some days there are simply too many cases to complete interviews. The study recommends increasing how many cases get reviewed, and conducting those reviews earlier as part of the booking process. County officials say they’re looking for ways to do both.