As our nation heads into its Independence Day holiday, Chief Justice Maureen O’Connor is issuing a statement that reflects upon our courts and the criminal justice system, the meaning of recent events in our nation, and our need to examine, by aggregating data, pre-trial and sentencing practices as they relate to those who come before the courts of Ohio.

“Life is not fair, but our government must be…”

These words attributed to President John F. Kennedy in the early 1960s were true then but have never been truer than now, 60 years later.

In these times of the social unrest that erupted since the killing of George Floyd, it is important to examine the role of the judiciary as we move forward. The unrest, although galvanized by the brutality inflicted upon an unarmed, handcuffed, Black man, did not arise solely because of Mr. Floyd’s death. The unrest is a culmination of historically unequal and unlawful treatment of people of color in this country, particularly African Americans, and the decades of grievances that have largely fallen on deaf ears.

What can we as individuals do to change this culture?  How will our judicial branch of government respond?

In trying to identify a meaningful path forward for the courts of Ohio, I have first reviewed the performance of the courts of America over time. In all fairness, our record is a “mixed bag.”  How could it not be?

The Constitution of the United States of America, as ratified in 1788, is a document replete with racism and sexism.  At that time in America we enslaved human beings.  This document defining The United States of America, as written, embodied the culture of slavery and the devaluation of a Black person.  It took a civil war to erase the practice of white people owning men, women, and children of color.

From the beginning of our democracy, state and federal judges developed and enforced policies and procedures that caused people in America to be treated unequally, with bias and without the recognition that all people are created equal in the eyes of God.

This history of “justice” in America points to the fact that our institutions can and do make mistakes.

• Mistakes that give rise to a culture of separation, discrimination, and the mistreatment of people.
• A culture that takes away the hopes, futures and the American promise for too many people.
• A culture that excludes many from enjoying the freedoms and liberties established in our Constitution simply based upon race, color, gender, sexual orientation, and national origin.

But our history also supports the fact that we can change; that we can do better.

We can recognize the inequalities and we can eliminate them when we come together to do the right thing.  This is especially true with the justice system.  The same courts that upheld discriminatory laws and policies have, on many occasions, also declared discriminatory practices by all branches of government to be contrary to law and unconstitutional.

For example, the United State Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), unanimously overruled the “separate but equal” doctrine announced in Plessy v. Ferguson, 163 U.S. 537 (1896), and held that segregated education facilities were inherently unequal.  The decision recognized, over time, as the concept of public schools developed, and social science took note of the psychological effects of segregation, that separate was, indeed, not equal.

In 1944, the Court upheld the constitutionality of the President’s executive order requiring the internment of U.S. citizens of Japanese ancestry, Korematsu v. U.S., 323 U.S. 214. The decision has been criticized ever since.  In 1988, Congress passed the Civil Liberties Act to grant reparations to the affected Japanese Americans.  And, in 2018, the U.S. Supreme Court called Korematsu“gravely wrong the day it was decided.”  Trump v. Hawaii, 138 S.Ct. 2392, 2423, ironically, upheld President Trump’s travel ban on people from certain Muslim countries, leading two of the dissenting justices to criticize the opinion as being on parallel with the majority of the Court in Korematsu.  Id. at 2447.

In cases decided almost 50 years apart, the U.S. Supreme Court recognized that the right to marry is protected by the Constitution and guaranteed to interracial and same-sex unions, in Loving v. Virginia, 388 U.S. 1 (1967), and Obergefell v. Hodges, 135 S.Ct. 2584 (2015).  In Obergefell, the Court wrote: “The nature of injustice is that we may not always see it in our own times.  The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”  Id. at 2598.

As the meanings of the words in our Bill of Rights evolve, as we continue to learn the meaning of liberty for all, there is room to acknowledge our errors and correct them.  Key judicial decisions, perhaps less well-known to many outside the legal field, provide the foundations upon which an equal justice system can progress and thrive.  But not without work.

For example, in Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court recognized that prosecutorial misconduct – by  withholding evidence favorable to a criminal defendant – violates the constitutional due process guarantee where that evidence is material to guilt or punishment.  And this includes evidence known only to police.  Kyles v. Whitley, 514 U.S. 419 (1995).

As the Court recognized in Brady: “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”  373 U.S. at 87.  Brady violations still occur, and courts still make wrong decisions regarding them.  But the law still provides a path to justice, as imperfect as it may be.  And work by prosecutors to recognize past errors through Conviction Integrity Units, along with other organizations, like the Ohio Innocence Project and the Equal Justice Initiative, are helping to balance the scales of justice and point to past wrongs that demand justice today.

In 2019,  Flowers v. Mississippi, 139 S.Ct. 2228, 2242, the Supreme Court recognized, “Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process.”  The Court noted that its 1986 decision in Batson v. Kentucky, 476 U.S. 79,was intended to “eradicate racial discrimination from the jury selection process,” Flowers at 2242, but that our trial judges are tasked with the “primary responsibility to enforce Batson and prevent racial discrimination from seeping into the jury selection process.”  Flowers at 2243.  And, as the Court found in Flowers, mistakes are made, or worse – committed with purposeful discrimination.

The law recognizes the importance of equal justice.  But it is up to our court systems, the judges, and the lawyers to ensure that the constitutional guarantees are applied equally.

So, how do we change for the better?  How do we restore respect and confidence in our institutions? One way to start is for elected officials to take inventory of their performance, individually, and collectively.

It is a reality that the judicial branch, even though it is the most respected branch of our government, has seen the public’s level of trust diminish in recent years.  This lack of trust in our institutions should alarm us and be a call to action.  As chief justice, I am especially concerned about the low level of trust of the judiciary among African Americans. According to the 2015 National Center for State Courts Public Opinion Survey, when asked whether state courts provide equal justice for all, only 32% of African Americans answered in the affirmative.

When asked if they felt a black male defendant would experience bias with a white judge the responses were as follows:

• 56 percent of African Americans and 44 percent of Hispanics felt the African American defendant would suffer bias at the hands of a white judge. 
• “Only” 30 percent of whites agreed. This number was still more than three times higher than it was for the white defendant appearing before the African American judge.

Many of society’s problems land in the courts for resolution.  The legislature enacts the laws, the executive branch enforces them, and it is the courts where those laws are interpreted and applied.  It is through the courts that laws are set aside as discriminatory, that government actions are declared unconstitutional or contrary to law, that common law is developed, and that mandates that our law is applied fairly to all are ordered.
We are a nation governed by the rule of law.  That is only possible if the people who make, enforce, and interpret our laws are trusted by those who are governed.

Courts, by their creation and purpose, are to be unbiased, and must treat all equally under the law.  Despite the good that courts have done over the past 230 years, for some, courts are not to be trusted. The perception is that the system is rigged against minorities and people who are poor, and that there is an unequal application of justice.

The judiciary can address its trust problem.  It starts with every judge, individually, in every county and city. It is imperative that every judge embrace the truth that we are ‘public servants’ and not imperious panjandrums.

Judges must demonstrate to those who enter their courtrooms that they can expect equal treatment under the law, with respect, and with the assurance that nothing but the facts of the case and the law are taken into consideration when a decision is rendered.

We, as judges, must examine how people are treated, especially in criminal matters.  We must make sure that pre-trial procedures are governed by the principle that all people are innocent until proven guilty.  Judges displaying personal anger, crude and profane language, name-calling, or other disrespect to litigants and their counsel do a disservice to themselves and a bigger disservice to the judiciary as a whole. It demonstrates a bias, and for that bias a judge can be removed from the case.

Undermining our constitutional guarantees is one of the most decimating practices we as judges use in criminal matters: the setting of bail -- a system by which defendants must pay for their freedom.

Advocates for bail reform have convincingly demonstrated that detention based upon the inability to pay can and does have a devastating effect on the poor communities which disproportionately include communities of color. Loss of jobs, homes, support systems, and family stability occur when someone cannot make even the smallest of cash bond.  If cash bail is required, it should be set in an amount that the defendant actually has the ability to post.  The purpose of bail is not to keep people in jail but to 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.  The justice system all too frequently fails to uphold just bail practices.   There is now a mandate for judges to examine the use of bail and utilize monetary bail only in appropriate cases. The first recourse must be release on individual recognizance, with or without conditions, as appropriate.

According to the 2018 Public Opinion Survey conducted by the National Center for State Courts, 73% of those polled believe judges should base pre-trial release on something other than ability to pay.

Ability to pay also presents itself as a consideration when a judge is imposing a fine or fee or conducting a hearing for non-payment. Only after determining that the defendant does have the ability to pay can a fine be assessed. And only after ‘willful refusal to pay’ is established at a hearing should a defendant be sanctioned for nonpayment. Alternatives to financial sanctions exist and can work to the benefit of the defendant and the court system.

The National Center for State Courts’ studies and survey questions tell what those who were surveyed felt.  And although perception is reality to many, it is not good enough when criminal justice policies and legislation are being formed.

Best practices demand that data be collected to discern whether the public’s thoughts or feelings are, indeed, reality. Aggregate data regarding pre-trial and sentencing practices in relationship to race, gender, ethnic background, or religion does not exist in Ohio in a standardized format. This data gap denies decision makers and the public necessary information upon which to enact policies and laws.  If disparate sentencing based on race is the concern, only data collection will tell the whole story. The data gap also allows for funding decisions to be made that may not be the most effective use of taxpayer dollars. Data must be used to not only formulate policy but to inform decisions regarding the expenditure of public dollars.

Without data, we are proceeding blindly, and that is contrary to acting in the best interest of the people of Ohio.

The immediate “low hanging fruit” is the reform of bail practices and court-ordered fines and fees, and the collection of pre-trial and sentencing data regarding race, gender, ethnicity, etc.  Bail reform should not have to wait for legislative action.  Every trial judge in Ohio can and should incorporate the practice of bail reform in his or her court. Cash bail should be the very last resort, not the first choice. Release on individual  recognizance should be the first option if it is necessary to use a misdemeanor bond schedule when the court is not in session.

The collection of data can be mandated by the Ohio Supreme Court’s  Rules of Superintendence for the Courts of Ohio and by legislative action.  Time is of the essence.

To quote conservative political and cultural commentator David Brooks: “How exactly is all this cultural agitation going to lead to legislation that will decrease income disparities, create better housing policies or tackle the big challenges?  Dealing with these problems is going to take government. It’s going to take actual lawmaking, actual budgeting, complex compromises — all the boring, dogged work of government that is more C-SPAN than Instagram.” N.Y. Times, June 25, 2020.

The work has begun in many communities, courts, and seats of government. But more is necessary. The recognition that reform is necessary is due in large part to the peaceful, yet forceful, demonstrations that deliver the message.

It is unfortunate that vandals, who are not to be equated to the demonstrators, are distracting from the message of reform. The non-violent demonstrators are exercising their constitutional right to protest. As vandals misdirect the focus of the protests with their destructive activities, the demonstrators’ valuable message is in danger of being lost.

More than 20 years ago,  the Ohio Supreme Court established the Ohio Commission on Racial Fairness. The Commission, made up of distinguished members from the courts, the bar, law enforcement, the clergy, academia, and the community, issued a report that contained recommendations to the justices. The  recommendations that address pre-trial and sentencing transparency and accountability in our justice system remain unfulfilled. The most effective way to measure perceived discriminatory pre-trial and sentencing practices is to collect data regarding race for all criminal and traffic cases, both adult and juvenile. This remains undone. The lack of prioritization, the cost, and the complexity has impeded the implementation of the recommendations. Those challenges can be addressed and overcome as we work toward the goal of establishing a true, data-informed report on our courts.

Coinciding with the recognition that data collection and analysis is essential to the path forward is a proposal to revise the Criminal Sentencing Commission to become the Criminal Justice Commission with expanded responsibilities, especially for the collection and study of criminal justice data. The data collection recommended in the report of the Commission on Racial Fairness can and should be conducted within the proposed Criminal Justice Commission.  The legislature has this proposal on its radar. Considering the need for data collection I trust that the modernization of this commission will receive the urgent attention it deserves.

The changes advocated in this statement are only the beginning, one part of a very complicated solution that will require input from all stakeholders.

There are many other ideas worthy of consideration as there is much work to be done:

• Cameras in every courtroom to increase public access and awareness.
• Development of jury education and training on implicit bias.
• Use of registries other than voting records from which to summon potential jurors to ensure a more diverse pool.
• Sentencing reform.
• Pre-trial detention regardless of the ability to pay when the danger to a person or the community is great, and the release would be unsafe.
• Pre-trial detention when the risk of flight is great.

There are many more ideas that need consideration and conversation.

It is long past time to address the recommendations contained in the Commission on Racial Fairness Report, and the Ohio Supreme Court’s history of failure to enact real substantive change in data collection, systemic equality, and self-examination.  We, as individuals and as the embodiment of an institution created to ensure fairness for ALL, must not let this opportunity go the way of the past.

Ibram X. Kendi wrote in his 2019 book, “How to Be an Antiracist,” that racism is like a cancer and “before we can treat, we must believe.  Believe all is not lost for you and me and our society.  Believe in the possibility that we can strive to be antiracist from this day forward.”

I believe that we can and must do better. Together, with the governor and the leadership of the Senate and House and the members of Ohio’s judiciary, we can clear that path forward so that the public’s trust in our judicial system increases and all those who find themselves before a judge believe that the system is fair.