Ohioans to Vote on Bail Reform Amendment
On November 8, voters will decide whether a proposed amendment to the Ohio Constitution to change the rules for cash bail is, as proponents claim, a better way to maintain public safety, or as opponents claim, a shift in power from the Courts to the General Assembly that won’t impact public safety at all.
Like anything in politics today, this is not as simple as we might like, and may have consequences that we don’t foresee. The resolution calling for the amendment states:
“Proposing to amend Section 9 of Article I of the Constitution of the State of Ohio to eliminate the requirement that the amount and conditions of bail be established pursuant to Section 5(b) of Article IV of the Constitution of the State of Ohio, and instead allow the courts to use factors such as public safety, including the seriousness of the offense, and a person’s criminal record, the likelihood a person will return to court, and any other factor the General Assembly may prescribe.”1
To help you decide which way you want to vote in November, let’s look at some frequently asked questions, among them: What is bail? Why is this proposed amendment on the ballot this year? What will this proposed amendment do? Are there other ways to reform the bail system without amending the Constitution?
What is bail?
Cash bail is a way to increase the probability that released people accused of crimes will show up for their court dates. Our bail system has been around since the founding of our country.2 The 8th Amendment to the U.S. Constitution says, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” When setting cash bail, the judge considers the financial situation of the defendant. The amount determined is intended to be an incentive for the defendant to appear in court. Clearly, what is excessive for someone making minimum wage is pocket change to a person of wealth.
On any given day at a county jail in Ohio, 60%3 of the prisoners are women and men charged with a crime, not yet tried, but too poor to make bail. Depending on how busy the courts are, these defendants might sit in jail for days, even weeks. Imagine the impact on families ─ jobs, school, child care, and transportation are all suddenly affected by having one family member unavailable, sitting in jail awaiting trial. Also, jailed defendants are less able to work on their own defense or confer with their lawyers.4
Whether or not to set bail, and the terms of bail, are far more complicated than our 8th Amendment would suggest. There are Rules of Criminal Procedure, created by the Supreme Court of Ohio with public input, as authorized by the Ohio Constitution. These Rules give judges several options when considering how to make sure the defendant returns to court and doesn’t pose a threat to public safety in the meantime. Bail conditions may include more than just the amount set for cash bail. Electronic monitoring, requiring a treatment program, and forbidding contact with witnesses are additional bail options.
In determining bail, a judge first decides whether there’s any reason the defendant should not be released pending trial. Concerns for public safety can override a release on bail (see state law R.C. 2937.2225). If the judge is going to set bail, the Rules of Criminal Procedure govern what to consider when setting the amount, including “…defendant’s risk of non-appearance, the seriousness of the offense, and the previous criminal record of the defendant.”6 The amount cannot be excessive, based on what would be expected to reasonably assure the defendant’s return to court. The judge sets other conditions of bail based on “…the protection or safety of any person or the community…”, that is, public safety.
Why is the proposed amendment on the ballot this year?
In January, the Ohio Supreme Court heard the case of DuBose v. McGuffey, where a lower court’s reduction in the defendant’s bail amount was being challenged. The First District Court granted DuBose’s habeas writ, finding that his high bail of $1.5 million “was effectively a denial of bail, without the trial judge making any of the required statutory findings.” It then lowered his bail to $500,000 and imposed non-financial conditions of release. The state appealed, proposing that (1) the Court of Appeals erred by considering the bail decision de novo (as if it were a new case) rather than an abuse of discretion, and (2) the Court of Appeals erred by discounting the victim’s family’s statement regarding concern for their personal safety. A divided Court split the vote, 4-3. Chief Justice O’Connor, with Justices Stewart, Brunner and Donnelly, upheld the First District Court’s action in reducing bail for the defendant. Justices Kennedy, Fischer and DeWine dissented.
Members of the legislature were concerned that this decision was wrong. They felt that public safety should have been taken into account when the amount of bail was considered, even though other, non-financial conditions to protect public safety were imposed.
Shortly after the DuBose v. McGuffey decision, State legislators introduced a joint resolution to put a constitutional amendment on the ballot. House Joint Resolution 2 passed 63-33, while its companion Senate Joint Resolution 5 passed 24-6, both along party lines. The amendment would change the way bail is considered and also change who sets the rules for bail.
Has politics played a role here? The split of the Supreme Court in this case is identical to the gerrymandering decisions. And we are in an election year. Justices DeWine and Fischer are up for re-election. Justices Brunner and Kennedy are vying for the Chief Justice position being vacated by retiring Justice O’Connor.
What was the Ohio Supreme Court’s decision in DuBose v. McGuffey?
In 2020, Justin DuBose, the petitioner, was charged with two counts of murder, one count of aggravated robbery, and one count of aggravated burglary. His bail was set at $1.5 million. DuBose appealed the amount of bail as excessive, and won his appeal in the Hamilton County Court of Common Pleas. That decision was reversed the next day because of a procedural error ─ the victim’s family had not been notified. DuBose filed a second appeal. This time the victim’s family testified that they were concerned for their safety if the defendant was released. The trial court denied the appeal this time, citing several reasons, including the seriousness of the charges and the concern for public safety.
DuBose then petitioned for a writ of habeas corpus to the First District Court of Appeals. The petition was granted and bail was reduced to $500,000, with several other restrictions that were not financial in nature. The First District Court cited errors in the trial court’s justification for its decision. The trial court reduced bail in the first hearing, then denied the bail reduction in the second hearing. It did not base its decision on the criminal procedures that are available when considering pre-trial detention, but simply used a high bail amount to keep the defendant incarcerated. If the trial court had wished to keep DuBose in jail, it could have done so under another state law, R.C. 2937.222. The state appealed the District Court’s decision to the Ohio Supreme Court.
The Ohio Supreme Court decision affirmed that “a bail amount that is ‘higher than an amount reasonably calculated to’ ensure the accused’s presence in court is ‘excessive.’” It also notes that bail is not limited to the money bond, but can include other limitations, “such as restrictions on travel and association, completion of alcohol- and drug-abuse treatment, and orders of no contact with witnesses in the case.”7 The decision cited Crim.R. 46(C), Ohio Rules of Criminal Procedure, that
“the court shall release the defendant on the least restrictive conditions that, in the discretion of the court, will reasonably assure the defendant’s appearance in court, the protection or safety of any person or the community, and that the defendant will not obstruct the criminal justice process. If the court orders financial conditions of release, those financial conditions shall be related to the defendant’s risk of non-appearance, the seriousness of the offense, and the previous criminal record of the defendant.”8
Here in Ohio, our current Constitution states:
“All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community. Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.” (Article I. Section 9)
In its decision, the Ohio Supreme Court recognized that conditions of pre-trial release can include a financial bond, but that bond must not exceed an amount calculated to return the accused to court. When there are concerns for public safety, other conditions may be imposed. The decision and concurring opinion cited many previous cases that were similarly decided.
The dissenting justices argued that the amount of bail is largely at the discretion of the trial court, and similarly cited previous cases to support their argument. They also pointed to the burden of proof being on the petitioner, DuBose, and pointed out that there was a lack of additional evidence to support the belief that the trial court had abused its discretion. In their dissent, they acknowledged that the reversal of the bail reduction was due primarily to the testimony by the victim’s family, a concern for public safety.
Justice Kennedy, in his dissent, acknowledged with the majority that the defendant was bailable, and therefore rules denying bail in R.C. 2937.222 did not apply.
What will this proposed amendment do?
The proposed amendment adds the following sentence to the Ohio Constitution:
“When determining the amount of bail, the court shall consider public safety, including the seriousness of the offense, and a person’s criminal record, the likelihood a person will return to court, and any other factor the general assembly may prescribe.”
By adding public safety as a consideration in the amount of bail, judges would be able to set a high bail as a substitute for other bail restrictions or denial of bail. This could result in more detentions for those accused who are poor.
It also removes the sentence
“Procedures for establishing the amount and conditions of bail shall be established pursuant to Article IV, Section 5(b) of the Constitution of the State of Ohio.”
Removing this sentence effectively transfers power to manage the bail system from the judicial branch to the legislative branch. Article IV, Section 5(b) assigns the responsibility of rules governing practice and procedure in the courts to the Supreme Court. Those rules, the Rules of Criminal Procedure, already direct trial judges to consider public safety: “The court may impose any of the following conditions of release… (i) Any other constitutional condition considered reasonably necessary to reasonable (sic) assure appearance or public safety.”
Clearly, there is a power struggle here. If the Amendment passes, it will shift control of bail rules from the Rules of Criminal Procedure, defined by the Supreme Court, to any laws that the General Assembly may pass.
What are other questions to keep in mind when evaluating the proposed amendment?
1) Was the Supreme Court’s decision in DuBose v. McGuffey correct?
The decision was close, 4-3, with one concurring and three dissenting opinions written. It is likely that the decision did indeed follow our current Constitution, since the legislative remedy that would have produced a different outcome has been to propose a new constitutional amendment.
2) What difference will the amendment make in a case similar to DuBose?
The amendment will make it easier for a trial court judge to use high bails as a means to detain a defendant rather than using the rules available to him. This makes it more likely that a defendant with limited means will remain incarcerated while a wealthy defendant will be able to obtain release. Since the U.S. Constitution forbids excessive bail, it’s possible that the amendment would be challenged in state and federal courts.
3) Are there any other consequences?
The amendment is actually a shift in power from the Supreme Court to the General Assembly. By adding language that allows the General Assembly to add further conditions for bail, and removing the use of Article IV, Section 5(b), which uses the Court’s own Rules of Criminal Procedure, the lines between legislative and judicial branches is blurred.9
Are there other ways to reform the bail system without an amendment?
Bail reform has been under consideration for several years, and there are many proposals that would continue to provide for public safety while limiting dependence on cash bail.
The non-profit, non-partisan Prison Policy Initiative has done extensive research on the impact of cash bail. “Examining the median pre-incarceration incomes of people in jail makes it clear that the system of money bail is set up so that it fails: the ability to pay a bail bond is impossible for too many of the people expected to pay it. In fact, the typical Black man, Black woman, and Hispanic woman detained for failure to pay a bail bond were living below the poverty line before incarceration. The income data reveals just how unrealistic it is to expect defendants to be able to quickly patch together $10,000, or a portion thereof, for a bail bond. The median bail bond amount in this country represents eight months of income for the typical detained defendant.”10
Several organizations in Ohio are working for bail reform, including the ACLU of Ohio, Americans for Prosperity Ohio, Arnold Ventures, the Bail Project, The Buckeye Institute, Ohio Conservatives for Bail Reform, Justice Action Network10, Policy Matters Ohio, and the Ohio Organizing Collaborative.
There are two bills in the state legislature, HB 315 and SB 182, addressing bail reform. These are bipartisan bills with broad support by organizations that have been analyzing bail reform for several years.
HB 315 will:
- Guarantee everyone who is arrested will receive an initial release decision within 48 hours.
- Ensure everyone who doesn’t pose a risk of willful flight or to the safety of any person will be able to return to their homes and communities.
- Require those who may pose a risk of willful flight or to the safety of any person receive a hearing before a judge within 96 hours for most offenses.
- Stipulate that if money bail is set, judges must consider a person’s ability to pay and do so with a written entry.
SB 182 is similar, but with shorter periods mandated for initial release decision and hearing.
Both of these bills remain in committee. Whether or not the amendment passes, these bills can still be considered.
Proponents of the amendment argue that public safety will be enhanced by its passage. Public safety is not the real issue here, because current laws allow for public safety to be considered, just not when setting the dollar amount of bail. Voters will be either voting Yes to shift control of bail rules from the Rules of Criminal Procedure, defined by the Supreme Court, to any laws that the General Assembly may pass, or voting No to keep the current Constitutional language and the current balance between the judicial and legislative branches of government.
1 House Joint Resolution 2, Long Title https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA134-HJR-2. Senate Joint Resolution 5 Long Title is identical.
10 Bail Reform Advocates United in Staunch Support for Sub. House Bill 315, Urge Swift Advancement of Critical Bill to Enhance Public Safety and Improve Pretrial Fairness | ACLU of Ohio (acluohio.org)