By Magistrate Anne Keller of the Shaker Heights Municipal Court
On July 1, 2020 significant changes to Crim. R. 46 became effective. Even the title was changed. Now titled, “Pretrial Release and Detention,” some of the changes to the Rule are due to the need to remove the disparity caused by financial conditions of bond. The amended Rule requires a court to consider pretrial release for a person on the least restrictive conditions that the court believes will reasonably assure the person’s appearance in court and protect the community. Although there was consideration of requiring the use of an objective risk assessment tool, ultimately the Supreme Court removed any requirement for use of such a tool.
Financial Conditions If a court decides to order financial conditions, it must now be based upon a person’s risk of non-appearance, the seriousness of the offense and the person’s prior criminal history. However, it is clear from the changes to the Rule that non-financial conditions of release such as a personal recognizance bond, are favored. If a person has appeared pursuant to summons, there is a presumption that release on personal recognizance is appropriate.
Non-Financial Conditions The list of non-financial conditions available to courts has been expanded. The prior iteration of the Rule allowed a person to be ordered to get treatment while on bail only if charged with an alcohol or drug related offense. Under the amended Rule a person can be ordered to obtain an AOD assessment and comply with the recommendations if charged with an alcohol or drug related offense, or where alcohol/drug use or addiction appears to have contributed to the offense. In this situation, a person must also appear to be in need of treatment based on evaluation, prior treatment history or recent alcohol or drug use. Another option for non-financial conditions of release is for a court to require compliance with alternatives to pretrial detention. This means a court can require a person on pretrial release to comply with a diversion program, day reporting, or other alternative to ensure the person appears in court. If a request is made to modify conditions of release, the court must now hold a hearing unless the modification is agreed to by the parties.
Bonds The amended Rule makes clear that there is a difference between a personal recognizance bond and an unsecured bail bond. A personal recognizance bond is a non-financial condition of release. It is a promise to appear in court and is not secured by money. An unsecured bail bond is a financial condition of release and requires a person to pay a sum certain upon a failure to appear for court. Under the old Rule both of those types of bond were considered financial conditions which was inaccurate.
Courts are still required to set a bond schedule covering all misdemeanors. However, the Rule has been changed to clarify that a bond schedule is to be used for the sole purpose of allowing the release of a person prior to the initial appearance. Courts are not to consider the bond schedule during a bond hearing.
Hearing Required If a person who has been arrested has not been released on bail, a court is now required to hold a hearing no later than the second court day after the person’s arrest. If the person appears without counsel for that hearing and is not released on bail, a second hearing with an opportunity for the person to be represented by counsel (court appointed if the person is found to be indigent) must be held within two days after the initial bail hearing.
MuniCourtNotes.net © 2020