If you get picked up on suspicion that you committed a misdemeanor, whether you get out of county jail while you await trial may depend on how much is in your bank account. And if you can’t pay up, you may find yourself sitting in a cell, risking your job, your housing — even custody of your children.
At least, that’s how some candidates and current judges running for seats on the Hamilton County Municipal Court frame the issue of bail reform.
But some, including other current judges, say the issue of bail is more complex. They cite multiple considerations judges must weigh when thinking about setting bail, and also about middle ground between traditional cash bail and simply being let out on your own recognizance while you await your day in court.
Municipal court judges hear misdemeanor cases and also set bail for all felony cases coming before the county courts. Hamilton County Municipal Court Judge Tyrone Yates has been on that bench since 2010. He says it’s the busiest court in the county — and the most vital.
“The municipal court is one of the most important in our country, because it’s the court that is closest to the people,” he told attendees at an Oct. 17 panel discussion for court candidates hosted by the Urban League of Greater Cincinnati, the Cincinnati Bar Association, the Cincinnati League of Women Voters and other groups. “It’s the court where most citizens will interact with the justice system.”
Yates says that judges in the court often set bail higher than is necessary for low-level nonviolent offenders.
“From time to time, I’ve actually received calls from other judges asking me not to lower the bail they’ve set,” he says. “But the constitutional rights of the defendant are higher than my duty to my colleagues.”
Yates, like a number of other judges this election season, is vying for another term in the county’s 2nd Judicial District. During this election season, bail reform has become a big issue in the important — but often overlooked — set of municipal court races.
Yates’ challenger, Hamilton County Juvenile Court Magistrate John Coleman, agrees that bail should be kept low or non-existent for nonviolent offenders. Coleman has been endorsed by the county Republican Party, while Yates has gotten the nod from county Democrats.
Other judges looking to keep their seats, though, say the issue is more complex.
Municipal Judge John Berkowitz, a Republican-endorsed incumbent running in the 4th Judicial District on the east side of the county, says that many factors come into play when it comes to setting bail, even for nonviolent charges.
“When it comes to setting bond, we have to follow the law,” he said at the Oct. 17 forum. “The law in Ohio controls bond and requires a judge in setting bond on a felony or misdemeanor to primarily consider securing a defendant’s appearance in court and to protect the public.”
The public safety element is crucial, fellow Republican-endorsed municipal court Judge Gwen Bender says. Bender was an assistant Hamilton County prosecutor before she was appointed to the municipal court in 2017. She’s running unopposed for a full term this year in the West Side's 7th Judicial District.
“The greatest nightmare you have as a judge is to hear a defendant out on bond committed a violent offense,” she says. “And it happens. It’s one of the hardest things you live with when you’re trying to set those bonds. It’s almost like you have to have a crystal ball.”
Bender acknowledges, however, the challenges presented by the bail question. She says there is middle ground — using electronic monitoring and other newer technology to keep a defendant out of jail, but not totally unsupervised.
Berkowitz says the criteria he looks at closest is whether someone has a history of skipping court dates and whether they live in the community.
“We have people coming into Cincinnati and Hamilton County from an hour south in Kentucky, west in Indiana, north and east to buy drugs and then overdosing and getting arrested,” he says. “I’m setting bond on that, and I have to decide if they’re likely to appear in court.”
He also says that so-called “own recognizance” or “OR” bond is often used by judges or law enforcement "every day" to keep a defendant from having to pay cash bail, either formally by the court or informally by officers who cite someone to a court date rather than arresting them.
But Berkowitz’s challenger, Hamilton County Public Defender’s Office Common Pleas Division Director John Kennedy, says that’s not the whole story.
Before his time working in common pleas court, which handles more serious cases, Kennedy worked for the public defender in municipal court. He says he saw many people in a tough situation due to high bails that weren’t necessary.
“When you tell a client that a judge is going to place a monetary bond on them, you hear that they’re going to lose their housing or they have no one to watch their children or that they’re going to lose their job because of $100,” he said at the judicial forum. “If you had one of those conversations, it might be easy to forget. But I’ve had hundreds, and that injustice happens every day in our court system. We need judges who understand that locking those people up pretrial does nothing.”
Kennedy recounted a case earlier this month in which a man was arrested for stealing $50 worth of items from a Kroger, including a medical cream.
“The person didn’t have a bad record,” Kennedy says. “But they were given a bond of $1,000 at 10 percent. That individual stayed locked up in the Justice Center.”
Just because some defendants get to wait for their court date outside a jail cell without paying bond doesn’t mean there isn’t a problem, he says.
“It’s easy to point to the people who are out and given OR bonds and say, ‘Look, the system works,’ while ignoring the people in the Justice Center on nonviolent offenses who show that the system doesn’t work.”
For Janaya Trotter Bratton, the issue is even more fundamental. Bratton, a civil rights attorney who has been endorsed by county Democrats, is challenging Republican-endorsed municipal court Judge Elisa Murphy, who was appointed last month by Ohio Gov. Mike DeWine to fill a seat vacated by former Judge Fanon Rucker.
“Bail reform is not just protecting the public and getting people to return to court,” Bratton says. “You should not stay in jail just because you’re poor when someone else with the same score (in the court’s risk assessment system) gets out.”
While the two may have differences on other issues, Murphy says she’s on board with that.
“No one should sit in jail because they can’t afford to give $125,” Murphy says.
Bratton, along with Kennedy, says that one way to make the court fairer when it comes to bail — and other issues throughout the judicial process — is to keep better data. That data could reveal racial and other disparities in the way bail and sentencing is administered in the county, advocates say.
“We need the public at large and the judges themselves to know how they’re treating different people on the same or similar cases,” Kennedy said. “That’s not a searchable thing I’ve been able to find. I know some from experience, but I haven’t been able to find those statistics. Until we have transparency, there won’t be any accountability.”
Information about how often judges let defendants out on their own recognizance versus when cash bail is required in Hamilton County isn’t readily available. CityBeat has requested data on bail practices from the Hamilton County Clerk of Courts.
Advocates for bail reform say that 65 percent of those in the Hamilton County Justice Center are there awaiting trial, though some are facing charges on more serious violent offenses rather than minor crimes.
The issue of bail reform has become a hot topic of late.
In April, Cincinnati City Council passed a motion asking city prosecutors not to pursue cash bail for low-level nonviolent offenses for cases they work. Councilmember P.G. Sittenfeld, who sponsored that motion, also called for the Hamilton County Prosecutor’s Office to do the same.
Hamilton County Prosecutor Joe Deters, however, shot back that the county doesn’t lock up those suspected of low-level offenses — something others dispute.
Meanwhile, State Rep. Catherine Ingram and State Sen. Cecil Thomas, both Democrats who sit on a task force on criminal justice reform, have said efforts are underway in the Ohio General Assembly to enact similar reforms on the state level.
Bail reform has also been the topic of debate in other states. In Harris County, Texas (where Houston is located), officials this summer settled a lawsuit around the county’s bail practices that advocates for bail reform call “a watershed moment” for more equitable pretrial treatment of defendants.
In Hamilton County, even those who generally defend bail practices acknowledge there is still room for improvement.
“We are out of room at the Justice Center,” Bender says. “We can’t lock up nonviolent offenders in the numbers that we’ve seen in the past. We are changing… but there still are elements we need to change.”
