Crime has dominated the news in Cincinnati for months, with a national spotlight on the city after a Downtown brawl in July.
The Hamilton County Association of Chiefs of Police says it shares the outrage the public has expressed over the brawl, and videos of the fight that were distributed widely on social media.
The association also says “gaps in the judicial process repeatedly undermine the tireless work” of police officers.
“It is not enough to arrest violent offenders if they are swiftly released back into our neighborhoods due to lax bail practices or insufficient sentencing,” the association said in a statement issued Aug. 8. “Public safety requires the full commitment and accountability of every branch of the criminal justice system.”
On Cincinnati Edition, we talk with three Hamilton County judges about how bail and sentencing are determined.
WVXU invited the Hamilton County Association of Chiefs of Police to be part of this conversation, but the association declined.
A transcript of this conversation is below.
This episode was transcribed using a combination of AI speech recognition and human editors and has been lightly edited for clarity. It may contain errors. Please check the corresponding audio before quoting in print.
Guests:
- Hamilton County Common Pleas Court Judge Wende Cross
- Hamilton County Municipal Court Judge Josh Berkowitz
- Hamilton County Juvenile Court Judge Kari Bloom
Ways to listen to this show:
- Tune in live at noon ET M-F. Call 513-419-7100 or email talk@wvxu.org to have your voice heard on today’s topic.
- Catch the replay on 91.7 WVXU and 88.5 WMUB at 8 p.m. ET M-F.
- Listen on-demand. Audio for this segment will be uploaded to this page by 4 p.m. ET., or subscribe to our podcast.
Transcript
Crime has dominated the news in Cincinnati for months, and Governor Mike DeWine will join Cincinnati's mayor, police chief and other state and federal leaders here for an announcement about crime today. In a statement released last month, the Hamilton County Association of Chiefs of Police said, quote, gaps in the judicial process repeatedly undermine the tireless work. End quote of police officers. This is Cincinnati edition on WVXU I'm Lucy May. Joining me now to talk about the role of the courts and how bail and sentencing are determined are Hamilton County Common Pleas Court Judge Wendy Cross, Hamilton County Municipal Court Judge Josh Berkowitz, and Hamilton County Juvenile Court Judge Carrie Bloom, thank you all so much for being here today.
Judge Cross, the Hamilton County Association of Chiefs of Police, they invited judges to participate in a roundtable discussion about criminal justice issues. Why did the judges decline to participate?
Cross: Well, thank you so much for having me the judges participation in that type of roundtable is governed by the Ohio Code of Judicial Conduct. And when we were invited to that meeting, I realized that perhaps our judicial independence, integrity, would be questioned. Participation at a meeting like that, behind closed doors with law enforcement, could implicate our judicial independence. And so we are neutral arbiters, we're the court, and we can't even do anything that would implicate some appearance of impropriety. And so I requested a legal opinion from our counsel, the court's counsel, and we got that opinion pretty quickly. And the opinion was that you're right, Judge Cross, your participation, the court's participation would implicate Ohio Judicial Code of Ethics, and so you should decline to participate. And in a very detailed manner, they sent us a letter — I think it was three pages — as to all the ways it would implicate our ethical responsibility. And so we declined, based on that legal opinion, based on the fact that it would call into question our responsibility to be independent and neutral arbiters in a matter.
We did invite the Hamilton County Association of Chiefs of Police to be part of this discussion, and the president of that association said the timing wasn't right, so they respectfully declined.
Cross: And can I just say that we, as the Common Pleas Court did reach out and indicate to the Chiefs of Police Association that we want to continue an open dialog about public safety. It's just that type of forum was not the appropriate forum for the judges to come to.
Judge Berkowitz, one of the questions the association raised in that statement that was issued last month was around bail practices. Can you explain how bail is set? What are the considerations that have to be taken into account?
Berkowitz: Sure. So setting bond on cases is one of our most important responsibilities. In Municipal Court, we're responsible for bond hearing six days a week in the Hamilton County Justice Center. For anyone who gets arrested in Hamilton County on a felony or a misdemeanor, they are brought before a judge. If they're under arrest, they're brought before a judge, typically within 24 hours, and at that time, we are responsible to set bond and other conditions of release, so that's, you know, whether or not to issue a protection order, whether to include things like electronic monitoring or drug screens — things of that nature. I was recently responsible for that role for a week. We do it a week at a time, and there was more than 1000 cases coming through the justice center during the course of a week, things that we're considering are obviously the seriousness of the allegations, the level of offense.
We have a great Pretrial Services Department in Hamilton County that provides a wealth of information about each suspect — their criminal history, not just in Hamilton County or even Ohio, but around the country. We're looking at things like their history of appearing in court, their history of compliance with conditions of bond or terms of probation or community control, parole, things of that nature, whether they have employment, whether they have a stable residence, family support in the area. To some extent, we're considering what we know about the evidence of the case, which, of course, is incomplete. It's an arraignment hearing. It's again, within 24 hours of arrest. Typically, we're also screening for drug and alcohol issues, substance abuse or mental health issues. So it's a really important hearing, and we got it. We have a lot of information to go through and to try to fashion a bond that, you know, under Ohio's Constitution, we must consider public safety when setting those bonds. Three years ago, Ohio voters overwhelmingly passed state Issue 1 that requires judges specifically to consider public safety when setting bond.
Cross: And that is true. And so all of those detailed factors that Judge Berkowitz just announced are some of the things we have to look at, but they are all under the umbrella of risk of flight, danger to the community, and now public safety. As he said, public safety became an issue raised and the voters voted and passed Issue 1 in 2022 that started with my case. I'm the first judge in Ohio to say public safety should be a decision that we actually make. I made that decision. It was appealed up all the way to our Supreme Court, who said no, but then the voters said no, we want the judges to be able to have public safety as a consideration. And now every judge in the state of Ohio is required to put into consideration public safety. That was because of the decision that I made in 2021.
Judge Berkowitz, you were talking about those detailed set of considerations that you think about when setting bail. So the kind of offense matters, whether it was a violent offense, whether a gun was involved, I assume so. Are people accused of those types of crimes where guns were involved or they were violent, are they getting out on bail routinely?
Berkowitz: Well, I think there's been some major changes in a lot of different aspects of the law, and certainly over the last 10, 15, years, there's been a very prominent, very high profile movement away from cash bail. And this is not unique to Cincinnati or Hamilton County. It's been a movement that, you know, probably you could trace back to, you know, undergraduate criminology studies and law schools, and it has made its way to the arguments of defense attorneys and ultimately to the bench. And so there has been a significant change in the way I think that judges approach bond over the last 10 to 15 years. And so there is a lot of concern right now over whether the bonds accurately reflect that concern for public safety. You know, traditionally, the rule is pretty straightforward. Bond was to protect the public and to secure the defendants appearance in court, and that 2021 decision, first of the 1st District Court of Appeals, and then of a very closely divided Ohio Supreme Court really, really changed that dynamic, and, you know, became a question of ability to pay, can the defendant afford to post this bond? And so you know that constitutional amendment put it back on public safety, and likelihood of appearing in court to answer to the charge. So nonetheless, you know, people ask me, Well, what can we do about this? When there's a question of, is that bond sufficient? And ultimately, that's a judgment call, and that's of course, our responsibility here is to use our judgment and in Ohio, voters have a say. Every judge in Ohio is subject to election. We have to run for office, and the citizens of each community, each county, get a voice in what kind of justice system they want to see in their community, and setting bonds is rightly a matter of great public interest right now.
Judge Bloom, I want to talk about how these issues apply in juvenile court. I know there's a lot of talk about diversion in juvenile court. Can you explain what diversion entails, who's eligible, who's not, and how that factors into these issues?
Bloom: Absolutely. Judge Cross and Judge Berkowitz were talking about what we call cash bail. In Ohio, we don't have cash bail for kids. Our system is similar to the federal system, where you're either held or you're released, and that is just a difference in the juvenile system that we have, we do have in all courts, common pleas, municipal and juvenile, a diversion process and a diversion system.
And diversion can mean lots of different things. Sometimes we use it with a capital D, and that means an official court process where the child and the folks in the other parties in the case go through an unofficial process — unofficial just meaning that you don't come to the courthouse and you don't see a judge — but what it does mean is that you see a hearing officer, you have to appear with your parent or guardian, and you still go through a court process where you are held accountable, and there are rules and regulations and stipulations that the child and their family have to follow in order to get the benefit of diversion, and if you don't follow those rules, or you choose not to do one of the stipulations, then your case comes out of diversion and comes to the official court, and you're processed through as if you never went to diversion in the first place.
So really, it's a pre-trial opportunity to show that you are ready and willing and able to change, and that the opportunities that the court can provide to you are those that you and your family want to take advantage of, to stay out of our system, because we know if we can keep you out of our system, then you'll stay out later, and you'll never get to meet my colleagues who are here with me.
We do have a caller on the line. Hi, Don, thanks for calling. What's your question or comment?
Don: Yeah, don't we need more jail space. Seems like too many people getting out on bond or cash bails and are recommitting the same crimes.
I'm going to ask you about this Judge Berkowitz, because I know this is something that came up at a recent Oakley Community Council meeting. What are your thoughts on that the jail space?
Berkowitz: Yeah, so this, this has come up recently, and it's really interesting. A lot of people would not know. Our current jail population right now is 300 to 400 inmates below capacity, below where it was pre-COVID in 2019 and it's been that way ever since 2020 and so, you know, when I started 10 years ago, when I started on the bench, that was a real cause for concern, that the jail was, we were told overcrowded, that this was something that, you know, there was a lot of debate, what can be done? There were times where Hamilton County was sending inmates to Butler County to relieve that overcrowding situation. We're now in a very different situation, where we have whole floors of the Justice Center that are empty, that are closed. That's a big deal, and I can... I think it kind of illustrates that change that I mentioned earlier, that, you know, over the last 10 years or so, there have been some dramatic changes. Some of that reflects changes in, you know, how bonds are set. Some of it reflects changes in how sentencing is is being imposed. Some of it reflects changes in state law. But, you know, the issue is most definitely not a lack of jail space at this time.
Cross: That's right. I agree with that. I do want to underscore a point that Judge Berkowitz said, and that was, you know, these decisions on bail are discretionary. Judges have to first follow the law, and the Constitution says that every individual accused of a crime is innocent, unless and until proven guilty. And I think that that sometimes goes by the wayside when people are looking at the decisions we make. But as Judge Berkowitz said, when they are setting the initial bond, they have to go off of what they know, what they've been provided by the prosecution, defense lawyers, you know, all the information that's gathered. And sometimes the judge making that decision doesn't have all the information, and so if you don't have all of the information, and you're following the law to balance that they are innocent until proven guilty, we have to make the best decision at that moment based on what we have, and that's what you're seeing sometimes, and then later information comes out that, 'oh, here's more information. Oh, here's some more evidence.' Well, guess what? The judge at the time didn't have that information. So that's where you know, we're asking the public to please have some grace in some of our decisions, because sometimes we don't have all of the information at the moment. We are called upon to make that decision because we have to follow the law and the Constitution that requires everyone to be innocent, presumed innocent, until proven guilty.
Berkowitz: Well, I'll go a step further. You know, we never have all the information when setting bond, we're not supposed to. It's not a trial. You're not hearing all of the evidence. You're hearing limited information. But I will point out the presumption of innocence applies at trial. At bond setting we're required to consider different information — obviously, again, less information — and all these other factors that are contained in the rules and in the cases that apply those rules. And it is an important responsibility, and no doubt we're making those decisions based on imperfect information. But again, that's what we were elected to do, is to exercise sound judgment and common sense. We're not supposed to leave common sense on the courthouse stairs. And you know, strong bonds on serious cases save lives. It's as simple as that. When you set strong bonds you have the opportunity to disrupt cycles of violence, cycles of addiction, cycles of trauma in a very real way, and conversely, when you have these weak bonds on serious cases, it sends a message to witnesses, to victims, to the community at large, that the system is not working, that it's not taking these serious crimes seriously, and so it sends a very discouraging message to those who, you know, we want to come to court to resolve these serious cases, and we want them to have confidence, whether defendants, victims, witnesses, neighbors across our community, that our justice system works and that it works fairly. So it's a tremendous obligation, and certainly not an easy decision. But you know, that's what's expected of us.
Earlier in the conversation, we referenced this Oakley Community Council meeting that you attended, Judge Berkowitz. I know a Cincinnati resident brought up concerns about youth behavior at bus stops. Judge Bloom, I'm wondering, are instances like that, do they ever make their way to the juvenile court? How do you address situations like that, when young people are kind of congregating and get into trouble? Is there a general stance or policy that you take?
Bloom: Sure. So the court — and none of our courts — can have general policies. As Judge Berkowitz said earlier, we look at each case as they come before us, but the bus stops — and I'm guessing you're saying Metro stops — certainly they are more populated now than they were before, since kids have to take the Metro to get to and from school, and so they really don't have another choice if their parent can't drive them, and it does lead to, like you said, congregating and wherever there's a lot of teens, there will be teen behavior.
But I think what we're talking about here are behavior that goes above and beyond, maybe includes some injury, even violence, or to me, even bullying is enough for intervention from adults, whether it's the community members who have been volunteering their time the last year or more at Government Square and in Northside at the transit station and at Oakley transit. Or, you know, law enforcement. I've met several of the officers who their post is one of the bus stations after school or before school, and they have all been people who are really interested in getting kids on the right track before anything happens.
If something does happen and they come to the court, though, what I have to keep in mind is we are telling this child they have to ride the bus because we are telling them they have to go to school. So I can't, in good conscious, say you can't ride the bus or you can't be at the Metro stop. So what we do is, instead, we ask our community partners, we ask our probation officers, we ask parents, guardians or other adults to make sure that they're accompanying these kids to the bus stop or the bus station. We also talk to the schools about arrival times, about start times, each Cincinnati Public School. Well, not each, but several of them have different start times and different arrival times. And so finding out on each individual case, what time does this kid have to be at school, what bus route do they have to take, or can they take, and making that a part of my court order, is something we do on almost every case where a bus stop matter comes into play because there isn't a reason... Like I tell the kids, there isn't a reason for someone who lives on the West Side to be at the Oakley transit station. There isn't a reason for kids who live on the East Side to have to go Downtown. In the unique situations that there are those reasons, we work it out. We work with our partners to find them another way and another route to keep them from maybe the bad influences they run into, but at least from the bigger groups of kids.
Judge Cross sentencing has also been a subject of discussion. Could you explain what factors a judge considers when it comes to sentencing?
Cross: There are many factors that our Ohio law sets forth. Ohio Revised Code sets forth many factors that the court needs to look at. We look at many of the same things that Judge Berkowitz indicated earlier with regard to bond, but at this point, the person is convicted, and so we know more about the crime. We look at the offense. We look at the victim statement. There is Marcy's Law that we have to consider the perspective of the victim as well. We also look at the criminal history of the person. How many times have they done this? And how many times have they been to prison? And we look at mental health. Mental health is a big factor. A lot of things that we're seeing in the news, mental health is an underlying root cause. And so there's so many, so many factors that we look to. We look at the characteristics of the defendant, we look at the witnesses, we listen to what even the police have to say. What is their perspective on this as well? There's so many positions and perspectives to actually take into consideration when we're deciding the appropriate sentence, but Ohio revised codes set forth all the factors that we're to actually look at.
There's so much more we could be talking about. We're running short on time. As we started out talking about, this has been a summer marked by high profile crimes that have drawn criticism from the public, from the police. I guess I want to ask each of you, and you only have about 30 seconds to answer, what influence does that criticism have on your jobs as judges? Or does it have any influence? Judge Bloom, I'll start with you.
Bloom: The ethics code that Judge Cross referenced earlier requires judicial officers to remain impartial, and there is actually a specific comment to one of the rules about media influence and about avoiding media influence, or the influence from outside people that is part of our job, and it can get uncomfortable and it can get very hard, but it is a requirement, and one that I take very seriously. And the only time that we would, or that I would pay any special attention to anything that's being said outside the courtroom would be when it's threatening or or otherwise improper.
And my apologies, we'll have to end it there. I've been talking with Hamilton County Common Pleas Judge Wendy Cross, Hamilton County Municipal Court Judge Josh Berkowitz and Hamilton County Juvenile Court Judge Carrie Bloom. Thank you all so much for your time today.