In case you’ve missed the mountain of political ads all over the television and internet, Ohio will hold an election on Nov. 8. Plenty of attention has been given to the various candidates for elected office, but very little has been given to the ballot issues which will also be decided by Ohio voters. Issue 1 and Issue 2 are both constitutional amendments, and any time the fundamental document which outlines the powers of our government is changed, then we should definitely pay attention.
Issue 1 proposes a change to how Ohio sets bail conditions for criminal defendants. Specifically, it will require Ohio courts to consider public safety, including the seriousness of the offense, as well as a person’s criminal record, and the likelihood that a person will return to court when setting the amount of bail. It will also move the rule-making authority for the amount and conditions of bail from the Ohio Supreme Court to the legislature.
When a person is arrested for a crime, often a court will set conditions for their release from jail before their trial. After all, defendants are presumed innocent unless found guilty by a jury of their peers. It does not seem right or fair to hold someone in jail when it has not yet been proven they have committed a crime. However, there can be good reasons to hold someone in jail pending their trial. The person could be dangerous. They might want to refuse to show up to their trial so they can avoid being convicted of a crime they know they committed. They might want to intimidate witnesses who could testify against them at trial. They may just want to go out and commit more crimes because they know they are going to lose their freedom anyway, and they might as well go out in style.
Bail is a strategy that courts have employed for centuries to ensure that criminal defendants comply with the terms of their pretrial release from jail and show up to court when they are supposed to be there. Bail is a sum of money that criminal defendants give to the court which acts as a security that they will appear in court and obey the terms of their release from jail. If they fail to show up, or if they disobey the terms of their release, then they lose the money, and they go back to jail.
However, bail has been a pretty contentious issue in the United States. The less money you have, the less likely you are to be able to afford to post your bail. If you cannot post bail then you are typically not able to be released from jail until your trial. An argument can be made that the bail system is a process that gives advantages to the wealthy because it allows those with money to have their freedom while the poor must remain incarcerated and await their trial behind bars.
Judges generally understand these issues, and most work very hard to consider many factors when deciding what bail to set. In fact, most criminal defendants end up being released without needing to post any bail at all. This is what courts call being released on one’s “own recognizance.” Sometimes, however, judges decide to set a bail amount, and they have typically considered several factors when determining how much money a defendant should have to give the court to get out of jail before their trial. One of these factors has traditionally been the safety of the public at large.
On Jan. 12, 2022, in the case of DuBose v. McGuffey, the Ohio Supreme Court ruled that public safety cannot be considered as a factor by a trial judge when the court decides how much bail a defendant must post to be released from jail. When the Supreme Court issued this decision, it was very notable to all practitioners of criminal law in Ohio, and it was fairly shocking to many. Public safety was a common factor considered by courts when setting bail for criminal defendants. The Ohio Constitution even specifically provides rights to victims of crimes to be heard when courts make decisions concerning a criminal defendant’s bail. A very good reason for this is to allow the trial court to consider the safety of the victims when determining bail. Nevertheless, the Ohio Supreme Court ruled that public safety cannot be used as a factor by judges when setting bail.
Issue 1 is a direct response to this Supreme Court decision. If passed, it would enshrine public safety as a bail consideration in the Ohio Constitution, and it takes away rule-making power from the Ohio Supreme Court in establishing the amount and conditions for bail. Essentially, Issue 1 returns the status quo to what it was in most jurisdictions prior to the DuBose decision, and it removes the power of the Ohio Supreme Court to work around this constitutional amendment through its rule-making process.
Public safety is an important bail consideration. The state should keep individuals who are likely to harm others or intimidate witnesses locked up until their trial. Prohibiting judges from considering the safety of the public when setting bail is a mistake, and Ohio is a less safe place because of the Ohio Supreme Court’s decision in the DuBose case.
Voting for Issue 1 will fix the Ohio Supreme Court’s mistake, and I urge you to support this constitutional amendment.
John Judkins is a Greenfield attorney.