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Significant change in Ohio bail system now headed to voters

The Ohio Supreme Court has ruled judges cannot consider public safety when setting monetary bail amounts.
Published: May. 25, 2022 at 5:21 PM EDT
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CINCINNATI (WXIX) - Ohio voters will soon decide whether state judges must consider public safety when setting monetary bail for people facing criminal charges.

The Ohio Senate and House of Representatives on Wednesday passed joint resolutions to place the constitutional amendment on November’s ballot. Read the text here.

Hamilton County Prosecutor Joe Deters and Ohio Attorney General Dave Yost championed the resolutions’ passage. Their statements can be found in full at the end of this story.

Tri-State lawmakers Sen. Cecil Thomas and Rep. Jessica Miranda voted against the resolutions. Thomas contends the amendment would pave an unnecessary shortcut for lazy prosecutors to deny defendants due process.

MORE | Ohio bail amendment a way for prosecutors to skip due process, avoid ‘actual work,’ senator says

The Ohio constitution grants judges the ability to set bails comprising any type, amount or conditions, but it prohibits excessive bail.

Judges setting bail can consider the nature and circumstances of the crime, per Ohio criminal code. They are also required to consider factors specific to the accused person, including the weight of evidence and the defendant’s financial resources, according to the Ohio Supreme Court.

The Ohio Constitution triggers automatic detention without bail for defendants charged with capital offenses. A detention hearing is required to hold a defendant without bail when charged with a specific set of other offenses:

  • Aggravated murder (when not a capital offense);
  • First degree murder;
  • Second degree murder;
  • Aggravated vehicular homicide;
  • Menacing by stalking (when it is a felony); and
  • Any OVI offense (when it is a felony)

The burden is on the prosecutor to sufficiently demonstrate that the defendant committed the crime and poses a substantial risk to public safety and that no release conditions can reasonably protect the community.

Otherwise, the Court has ruled judges cannot set unreasonably high bail amounts that “everyone knows the defendant cannot afford” and that are “tantamount to a denial of bail[...]”

Says the Court, “The sole purpose of bail is to ensure a person’s attendance in court.” And elsewhere: “Bail is excessive when it is higher than is reasonably necessary to serve the government’s interest in ensuring the accused’s appearance at trial.”

Setting a high bail just to keep someone accused of a crime in jail before his or her trial is “statutorily and constitutional unlawful,” the court has ruled. “[...]Boiled down to its essence, setting high bail amounts accomplishes with money what courts could not otherwise achieve without following the due-process requirements in [the Ohio code.]”

To be clear, according to Ohio code, judges can consider public safety—”the protection or safety of any person or the community”—when determining bail conditions such as travel restrictions, but monetary bail “shall be related to the defendant’s risk of nonappearance, the seriousness of the offense [and] the previous criminal record of the defendant[...]”

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The issue of high bail came before the Court earlier this year. It ruled in Dubose v. McGuffey that a Hamilton County defendant’s bail was set excessively high after the judge improperly considered safety concerns voiced by the defendant’s family.

“[Justin] Dubose’s counsel repeatedly proffered that neither Dubose nor his family can afford the $1.5 million bail, a point reiterated in the verified habeas filing before us,” the Court wrote. “The state has never contested this point or introduced contrary evidence, and, indeed, the thrust of its arguments at the bail hearings is that the bail must be so high that Dubose cannot get out.”

Deters was the prosecuting attorney in the case.

Hamilton County Prosecutor Joe Deters:

“The number one job of the government is to protect its people. I am thankful to Attorney General Dave Yost and the General Assembly – especially Representatives LaRe and Swearingen and Senator Gavarone – for their commitment to public safety.

We have seen across the country the deadly result of politicians and courts that do not consider the victims or community safety. Today was an important step to ensure Ohio does not make the same mistakes as New York or California.

Everyone needs to be aware of the two local representatives that voted against public safety today: Senator Cecil Thomas and Representative Jessica Miranda. They should be ashamed. The choice for Ohioans is crystal clear this November: Do you stand with safer neighborhoods or the criminal lobby?”

Ohio Attorney General Dave Yost:

“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.

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. I want to thank Senator Theresa Gavarone, Representative Jeff LaRe and Representative DJ Swearingen for their leadership in this effort.”

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