MOUNT VERNON — The statewide policy of arresting people for probation violations and holding them without bail is “clearly a violation of people’s rights,” according to Jeffrey Gamso, legal director of the American Civil Liberties Union of Ohio.
On the guidelines of the Ohio Adult Parole Authority, probation officers across the state have arrested people accused of probation violations and held them without bail or without a hearing. This policy is called a probation “holder.” In Knox County, over 190 people were arrested in 2007 for suspected probation violations and placed on probation holders.
According to APA policy, anyone suspected of a probation or parole violation can be held for up to 10 working days without a hearing or the opportunity for bail. In Knox County, adult probation authorities say a suspected violator can be held for up to five days before ever seeing a judge to contest their arrest.
“There could be an issue of constitutionality there,” said Ric Simmons, a former New York county prosecutor and professor of law at Ohio State University. “For federal offenses they’re allowed to hold someone [without a hearing] for 48 hours. In Ohio it’s 24.”
Jonathon Entin, professor of law and political science at Case Western University, said, “I share the skepticism of those folks who say this [policy] looks pretty dubious.”
Wilson Huhn, a law professor at the University of Akron, was concerned that the policy may violate not only Ohio statutes, but also the 14th Amendment of the U.S. Constitution. The 14th Amendment prohibits any State depriving “any person of life, liberty, or property without due process of law.” Huhn said the process of holding someone in jail without a hearing may violate this clause.
According to Ohio law, anyone who arrests someone for a suspected probation violation “promptly shall bring the person who was arrested before the judge or magistrate before whom the cause was pending.” There are no provisions in the Ohio Revised Code authorizing a probation holder.
Huhn said administrative agencies are allowed to come up with interpretations of existing law that are reasonable.
“It’s an abiding problem in administrative law,” said Huhn. “[Agencies] are considered experts and are allowed some lee way.”
According to J. Dean Carro, a University of Akron law professor, the policy of holding someone without bail may originate in Ohio Criminal Rule 32.3. Criminal rules are policies adopted by the Ohio Supreme Court to govern any criminal case in the state. Rule 32.3 states that after a defendant is arrested, “the defendant may be admitted to bail pending hearing.” Carro said that “may” is a very different term in legal language than “shall.”
Sara Andrews, a spokeswoman for the APA, explained its policy.
“In some instances it’s hard or there’s a reason information can’t be obtained in an investigation [of a suspected parole or probation violation] in that time frame,” Andrews said. “We obviously discourage making an arrest just to make an arrest.”
Gamso disagreed, and said holding someone without bail or a hearing for 10 working days violated people’s rights.
“I don’t care whether they’re on [probation] or not,” said Gamso. “The police cannot just take people off the street, even if they’re on community control. We would be interested in hearing from people who’ve been subjected to this pattern of improper behavior.”
