Supporters of a state constitutional amendment on the Nov. 8 ballot promote it as “bail reform.” But those who have sought bail reform for years say it’s nothing of the sort.
“Issue 1 is a solution in search of a problem,” said Judge Steven Dankof, Montgomery County Common Pleas Court. “If this passes, for all intents and purposes, any true bail reform is dead on arrival.”
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,” or 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.
In May, both houses of the Ohio General Assembly passed joint resolutions by more than the required three-fifths margin to put Issue 1 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.
State Sen. Theresa Gavarone, R-Huron, sponsored SJR 5, while state Reps. Jeff LaRe, R-Violet Twp., and D.J. Swearingen, R-Huron, sponsored HJR 2.
Attorney General Dave Yost and other Republican leaders endorsed the resolutions as ensuring public safety. Yost worked toward getting the measure on the ballot with Hamilton County Prosecutor Joseph Deters and legislators.
“Today’s vote by the General Assembly returns the power back to all Ohioans who will now decide if the safety of the public should be considered by judges when determining the monetary amount of bail,” Yost said when lawmakers voted to place the measure on the ballot.
“I expect many Ohioans will be shocked to learn that judges are not currently permitted to consider the threat an offender poses to a community when setting financial conditions of bail.”
In House and Senate hearings this year, Democrats said the amendment is unnecessary because Ohio law already allows 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.
If prosecutors seek to hold someone without bail, that requires a court hearing to show it’s likely the person committed a serious crime and that no amount of bail would deter them from causing further harm, Dankof said. It can be short, but few judges use that procedure because they’d rather not hold another hearing, he said.
Attempts to reform the bail system are underway nationwide, related to efforts toward reducing incarceration overall.
A bipartisan bail reform effort has been underway in the legislature for more than a year as House Bill 315, sponsored by state Reps. David Leland, D-Columbus, and Brett Hillyer, R-Uhrichsville; and its companion Senate Bill 182, sponsored by state Sens. Rob McColley, R-Napoleon, and Steve Huffman, R-Tipp City.
The House 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 has 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.
But in January 2022 the Ohio Supreme Court ruled 4-3 in DuBose v. McGuffey to uphold an appeals court ruling that consideration of public safety — which would be addressed in a pretrial detention hearing — cannot be part of determining bail as well.
Building on a prior concurring opinion, justices held that if a judge sets a bail amount a defendant cannot afford, that’s effectively saying the person is to be held without bail.
Gavarone said the constitutional change was made necessary by the DuBose decision.
“For too long victims of crime have been pushed aside in favor of bending over backwards to make life easier for criminals, including the most violent among us,” she said.
Gavarone said the change “puts the emphasis back on a core function of government — protecting its citizens from criminals.”
Current law, not updated in more than 18 years, lists the crimes for which a person can be held without bail, Dankof said. The omission of domestic violence from that list shows that it’s essentially political, since judges, legislators, police and prosecutors all know domestic violence is the strongest predictor of a future lethal crime, he said.
Dankof said some of Ohio’s judges agree with him. But setting unaffordable bail appeals to other judges because when the accused “marinate” in jail, they’re more likely to take a plea deal — avoiding the need for a trial, he said.
Purpose and cost
Cash bail has two purposes: ensuring that the accused show up for future court dates, and protecting the public from further harm. Defendants deemed too risky to release can be held without bail, while those who pose little risk may be released without conditions. Bail is set for people who fall between those extremes.
In Ohio, about 60% of those in jail are held awaiting trial, imperiling their jobs, property, living arrangements, education or family commitments. On average, about 12,000 people are in Ohio jails on any given day without having been sentenced, according to the ACLU. Most are there primarily because they can’t afford bail, although they are mostly low-risk and are not charged with violent crimes, the group says.
Holding people in jail is also expensive for taxpayers. According to figures from the Ohio Legislative Service Commission, the state spends about $266 million a year holding people who await trial.
Supervised release is much cheaper: about $5 a day compared with $65 for jail time, according to a state justice reform task force report.
Several reports in the last few years found that bail reform could save money. The conservative Buckeye Institute reported in 2018 that it could save Ohio taxpayers $67 million a year.
A March 2021 poll sponsored by a mix of liberal and conservative groups found that three-quarters of Ohioans think criminal justice reform is needed; while more than two-thirds say most people should be released after arrest if they don’t pose a flight risk or danger to others, and that bail conditions should be based on individual circumstances, not ability to pay.
Ohio Supreme Court Chief Justice Maureen O’Connor addressed Issue 1 in her final State of the Judiciary speech on Sept. 15. She said a judge when setting bail should have already considered public safety.
“To manufacture fear and continue a pattern of jailing the people who can least afford to be released doesn’t protect society,” she said. “It only assures that money determines the level of freedom and civil rights that one enjoys.”