Bail change will be on fall ballot

A constitutional amendment to change the rules for setting bail will be on the Nov. 8 ballot.

Both houses recently passed joint resolutions by more than the required three-fifths margin to put an amendment on the fall ballot. House Joint Resolution 2 passed 63-33, while its companion Senate Joint Resolution 5 passed 24-6. If a majority of voters approve the amendment in the fall, it will be added to the Ohio Constitution.

A closely related bill, House Bill 607, was “informally passed” by the House for a second time – meaning it did not receive a vote, but remains on the legislature’s calendar for further work.

A bipartisan bail reform effort has been underway in the legislature for more than a year as House Bill 315 and its companion Senate Bill 182. But in reaction to a January decision by the Ohio Supreme Court, DuBose v. McGuffey, Republicans introduced HB 607 and the joint resolutions in March and pushed them through hearings while the bipartisan effort remains in committee.

The resolutions call for a constitutional amendment to change the requirements for setting bail.

The Ohio Constitution currently says anyone can be bailed by “sufficient sureties,” unless they’re charged with a capital offense or felony when “proof is evident or the presumption great,” and if their release poses a risk to the community.

The proposed amendment would remove that language, instead saying only that in setting bail courts must consider public safety, the person’s criminal record, the likelihood they’d flee, and seriousness of their offense. The House resolution has been amended to add “any factor that the General Assembly may describe” to those conditions.

House Bill 607 echoes the language of the proposed constitutional amendment.

“In all cases, bail must be fixed with consideration of the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of the defendant appearing at the trial of the case,” says an analysis from the state Legislative Research Commission. “The bill expands these factors to require that bail must be fixed with consideration of all relevant information, including the risk to public safety.”

State Sen. Theresa Gavarone, R-Huron, sponsors SJR 5. State Reps. Jeff LaRe, R-Violet Twp., and D.J. Swearingen, R-Huron, are the sponsors of HJR 2. LaRe and Swearingen are also the sponsors of HB 607.

The Dubose decision upheld an appeals court ruling that public safety cannot be considered when determining the level of cash bond for a criminal suspect.

Gavarone called DuBose a “reckless decision” which poses a “direct threat to public safety.”

But according to opponents including state Sen. Cecil Thomas, D-Cincinnati, the amendment is unnecessary because Ohio already has a law allowing a hearing for pretrial detention, in which judges can hold someone in custody if they’re deemed dangerous. That’s separate from the bail process, he said during SJR 5′s Senate hearing.

“Financial conditions are meant solely to induce a defendant to return to court for their trial date,” Thomas said.

In the House and Senate hearings, several Democrats denounced the proposed amendment as a political ploy to boost Republican voter turnout in the fall. It wouldn’t improve public safety, they said, but would disproportionately impact minorities who are often lower-income, they said.

According to the ACLU of Ohio, about 12,000 people on any given day are behind bars in Ohio without having been sentenced. That’s about 60% of the people in jail; the ACLU says those people are held primarily because they can’t afford bail.

Following the May 25 vote, the ACLU of Ohio reiterated its support for HB 315 and SB 182. Patrick Higgins, the group’s policy counsel, described HJR 2 and SJR 5 as “distracting from proactive, bipartisan bail reform efforts that have been brewing for years.”

“Simply put, the DuBose decision does not need fixing,” he said in a news release. “DuBose underscores the longstanding constitutional principle that bail is excessive when it exceeds the amount necessary to guarantee the appearance of the accused person. Since its inception, cash bail’s purpose has been – and continues to be – ensuring court appearance for individuals accused of crimes. Cash bail does not promote public safety, is just allows people with money to purchase their freedom.”

State Reps. David Leland, D-Columbus, and Brett Hillyer, R-Uhrichsville, introduced House Bill 315. Their bill would set a $200 “floor” for bail, and set the maximum at 25% of someone’s monthly income, after deduction of some costs such as education and work expenses, Leland said.

It would also greatly expand rules for pretrial detention, adding more than 50 crimes to the list of those for which a judge would need to determine the risk releasing a prisoner would pose to others, he said.

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