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Justice Speeches

2019 Legislative Preview for Ohio Journalists
Retired Chief Justice Maureen O'Connor
February 19, 2019

Chief Justice Maureen O'Connor
2019 Legislative Preview for Ohio Journalists
Feb. 19, 2019

Thank you, Julie (Carr Smyth), for the introduction - and for the invitation.

Good afternoon, everyone.

On behalf of our newly constituted Court, with two new justices, I welcome you to the Thomas J. Moyer Ohio Judicial Center.

It\'s been a couple of years since I\'ve addressed this gathering. Last year, I had a scheduling conflict as president of the national Conference of Chief Justices, and missed being here by a few hours.

Now that I AM here, I want to say thanks.

Thanks to all of you, and to all of the journalists in our state for doing what you do every day.

I believe that a free press is essential to our way of life...our institutions...and our future. This holds true not only here in the US but across the globe.

This event is unique. It brings together the three government branches on the same day - along with the Fourth Estate, which you represent.

I realize that these past two decades have been hard on journalists and journalism.

There should be more, not less of you working all the beats that keep our citizenry informed. The Courts are obviously important but so too are all government institutions.

Criticism of the press is at an all-time high. Nobody gets it right all of the time, but this criticism is not about getting it's because the free press does get it right. And 'telling it like it is' is unflattering, and exposes things that some would prefer to bury.

Yet, you and your colleagues still manage to cover an enormous amount of public affairs territory.

I saw this first-hand last fall when I traveled the state to discuss Issue One.

Julie asked that I deliver an interim "State of the Judiciary" address.

So, let me declare that the state of the judiciary in Ohio is strong.

It is also very busy.

And the judiciary is changing - quickly and constantly - as our justices, judges and magistrates adapt to societal changes.

Had I given this address a few months ago, I would have added that the judiciary was also very nervous.

We were on edge across our entire court system about Issue One.

Nearly all of you in this room either cover courts or have covered courts in the past.

So, you will understand that had Issue One passed, it would have forced a wholesale upheaval in the structure of our court system.

It would have been a mess.

One of several angles you did write about was the way Issue One would have devastated our drug courts by removing incentives for offenders to seek help.

You also explored the effects this proposed constitutional amendment would have had on sentencing.

Thank you for taking the time to study those aspects of the issue, and for clarifying them for your readers, listeners and viewers.

Issue One failed in 86 of our 88 counties and by a spread of 63 percent to 37 percent. That 2-to-1 margin reflects an informed electorate.

Our judges explained the drug court and incarceration situations very well on the local level.

I asked them to speak out, and they did.

Pulling back on drug courts at this point in our drug crisis would have been a disaster.

Helping our fellow citizens recover from their drug problems with programs like Medication-Assisted Treatment gets them back on track to becoming contributing citizens. This is our Number One goal.

Issue One is behind us, but I bring it up for two reasons:

One, we need to move forward from this ballot issue that was defeated three months ago and work on the problems of drug abuse and sentencing.

Secondly, there is a tremendous need for all sides on this debate to work together and work transparently.

What we need are serious discussions about criminal justice, and carry them out in a non-partisan, inclusive process.

I'm encouraged by Governor DeWine's commitment to expanding drug courts. That makes sense. They are proven. They are working.

We have 170 drug courts today in 66 of our 88 counties.

The need is greater than that. In fact, the behavioral health needs in just about every county are greater than the levels currently provided.

The governor has put a number out there - 60 or so more drug courts. We in the judiciary haven't ascertained if that is the exact number. But the governor's estimate shows that he has a firm grasp on the scope of the problem.

I also like what I'm hearing from legislative leadership.

I sense - and I see - a growing commitment to hear all sides, and to do this right.

We need thoughtful solutions. Not a constitutional amendment, but legislation and court rules that improve our system.

We need to keep moving if we are to address and defeat the moving targets of drug addiction and detrimental incarceration.

We must act prudently, yet swiftly.

These problems are growing.

There is no single piece of legislation or change in court rules that solves the problems of criminal sentencing all at once.

The problems are many faceted, and the remedies will be, too.

That said, we are lucky that in Ohio we have tremendous human resources to make meaningful change. It's time to tackle these problems one by one.

Regarding proposals, I have developed a few of my own in the wake of Issue One. I am sharing two of them with the governor, the General Assembly, other interested parties - and with you today.

One, I believe we must expand access to I-L-C, which is Intervention in Lieu of Conviction.

Secondly, we must expand access to expungement of convictions.

Addressing these two issues would remove major barriers faced by those in recovery - when trying to land a job, or hold on to one.

Let me explain.

Intervention in Lieu of Conviction is sometimes called Treatment in Lieu of Conviction.

I-L-C is a program that allows those charged with lower-level, non-violent drug possession felonies to seek help instead of sitting, unaided, behind bars.

Currently in Ohio, an offender's access to I-L-C - is limited.

In fact, it is too limited.

The program could be expanded to help more people by requiring judges to articulate the specific reasons for rejecting a defendant's application to participate.

Judges need discretion to levy appropriate penalties. Requiring judges to spell out their reasons for rejection would preserve judicial discretion, while increasing access.

Of course, local courts should be provided the resources necessary to carry out the additional load of health assessments.
These assessments determine the type of disorder - drug, alcohol, mental health, or any combination of all three - that the offender possesses.

Treatment options are then prescribed.

Assessments also would determine if the Intervention in Lieu of Conviction is a good fit for each individual offender.

My second proposal is for expansion of access to expungements.

There are serious obstacles to landing and holding a job when a felony conviction is sitting there on the record of someone who is in recovery.

Employment can be a critical element of recovery.

Going to work, having a schedule, being a contributor - these things raise self-esteem and show a path out of addiction.

And there's the obvious merits of having a job and earning money.

Under current law, a person cannot have more than one misdemeanor and one felony conviction and seek expungement.

My proposal would allow those with up to four misdemeanors and two felonies to seek an opportunity for expungement.

It also makes sense to reduce the amount of time that those convicted of lower-level drug-related felonies and other low-level felonies must wait before they are eligible to have their records expunged.

Currently, it's a three-year wait from the time they complete their sentences - and their probation - before they can apply.

I propose that this period be cut to one year.

The goal here is to get Ohioans not only on the road to recovery but keep them on the path to being contributing citizens.

That makes these proposals good for everyone - taxpayers included, for sure.

These are just two of the many inter-locking sectors of the criminal justice system that deserve scrutiny if we are to have justice for all.

As many of you know, I have been co-chair of the National Task Force on Fines, Fees and Bail Practices since its inception in 2016. This task force was created by the Conference of Chief Justices and the Conference of State Court Administrators.

We have been hard at work since then creating draft model statutes, court rules and policies aimed at broadening access to justice.

Many of you wrote a couple of weeks ago that I have convened a task force in Ohio to examine one aspect of access to justice, the Ohio bail system.

In this group, we have over two dozen members representing a cross- section of professionals in criminal law and the bail system.

The task force is charged with making recommendations to me and my fellow justices.

I'm hoping they can wrap up their work by April.

Meetings are held in our building here and they're open to the press. I encourage you to attend.

I can't tell you what the report will look like, or what steps the task force will recommend to deal with the bail issue. This is the work that is before them.

What I can tell you at this opening stage is that the task force is committed to having an open process and to hear from as many voices as possible.

I can also tell you that the problems of cash bail are real - and they inflict pain on our society.

Bail is part of the group of three cost-inflicting measures - fines, fees and bail - that together can be called monetary sanctions

The history of how we, the courts and legislatures, arrived at the 'go to' sanction of money is interesting. I'm not here to give a lecture on it, but it's worth reading about...

There are two purposes of bail: A method to ensure that a defendant will appear in court at every step of the process and, second, to ensure the safety of the community... continued criminal activity, intimidation of witnesses, etc. are all reasons for bail...

Linking bail to the name of the charge without considering the individual's circumstances defeats the purposes of bail.

Cash bail affects the poor in ways that go far beyond deprivation of liberty. If they cannot make bail and sit in jail, the foundations of their world can fall apart.

They can lose their jobs. They can miss a rent payment or a car payment. They can go from living paycheck to paycheck - to having no paycheck.

This kind of pressure can lead them to make plea deals they shouldn't be making, if they are not guilty of the crime they are charged with.

Mind you, the character of the people in detention cannot be ascertained by the fact that they can't afford to make bail. For many, their "crime" is being poor.

Those not able to make bail can be detained for jaywalking, public drunkenness and traffic violations, including parking tickets.

Meanwhile, people accused of greater crimes can be released pending the outcome of their case. If they have the money to do so.

Fairness and equality under the law are foundational principles of American society. The current system is not serving this ideal.

The U.S. Department of Justice reports that unconvicted detainees comprise 65 percent of the U.S. jail population at the city and county levels. (U.S. Bureau of Justice Statistics, Zhen Zeng, "Jail Inmates in 2016," published in 2018.)

Two Cincinnati-area professors cite the bail system when noting in a recent study that - quote - "on any given day, at least 60 percent" - end quote - of the detainees in the Hamilton County Detention Center haven't been convicted of a crime and can't afford bail. (U-C Professor Wendy Calaway and Northern Kentucky U. Law Professor Jennifer Kinsley, 2018.)

The professors go on to note that Hamilton County is typical in this regard, not an outlier.

I know we can make progress on the bail situation because bail is top-of-mind for so many people who work in - and study - the criminal justice system.

Calls for reform have come from judges, prosecutors, and law enforcement - and from the ACLU and the Buckeye Institute.
The value of a justice system resides in its ability to bring order to society, and to resolve problems in our everyday lives.

This why the bail system requires reform.

Our task force is comprised of two dozen professionals committed to creating workable recommendations, and I'm eager to see their work.

Finally, before I take your questions, I would like to put in a plug for the Court's Specialized Dockets Section.

This is our group of hard-working professionals who certify courts that engage in deep problem-solving. They share best practices and provide local courts with technical and program support.

The number of specialized dockets in Ohio is approaching 250.

Of those, 170 are drug courts.

Some of the drug courts are known as Family Dependency Treatment Courts.

We have veterans' courts and mental health courts. Those also deal with drug issues and other problems.

There are domestic violence courts, human trafficking courts, truancy courts, and more.

Ohio is a national leader in this kind of specialization.

Many of you have covered the work of these special courts.

I appreciate your coverage.

There are so many stories to tell about the work of these courts. I invite you to cover them.

Helping the public understand the how and the why of our changing judiciary is so valuable. It allows us to continue our work and shows the level of innovation necessary to succeed in levying justice -- fairly.

We are continuing to advance a justice system in Ohio that is relevant to the needs of our state and its people.

As we build and change, we must remain dedicated to a system of good will, and one that not only aspires to be perceived as fair and equitable - but is, in fact, fair and equitable.

Thank you once again for having me here, and now I'll take your questions.

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