GENERAL ASSEMBLY INITIATED CONSTITUTIONAL AMENDMENT
- Substitute House Joint Resolution 2 (PDF)(opens in a new window)
- Certified Ballot Language (PDF)(opens in a new window)
- Certified Explanation (PDF)(opens in a new window)
- Certified Argument For (PDF)(opens in a new window)
- Certified Argument Against (PDF)
Ohioans will vote this fall on a constitutional amendment
when judges should consider public safety when setting
the amount of cash bail.
Article written – in part – by Laura A. Bischoff | The Columbus Dispatch | 9.20.2022
Ohioans will vote this fall on a constitutional amendment.
The proposal says that when setting bail amounts, courts must consider public safety, a person’s criminal record, the likelihood they’ll show up for court and the seriousness of the crime.
Opponents warn that the amendment would not necessarily improve public safety. They say it would exacerbate an already broken money bail system.
Reforms are needed − just not these particular changes, opponents say.
The language of this constitutional amendment would also revise the Ohio Constitution so that the Ohio Supreme Court determines the procedures for deciding bail amounts and conditions. The power for determination on bails will shift to the Ohio General Assembly. According to Health Policy Institute of Ohio, a non-profit that works to provide non-partisan analyses on state health policy, this could lead to more partisan laws and restrictions by lawmakers versus the courts and judges determining bail amounts.
What is bail?
Bail – money and or conditions – is intended to ensure that someone will show up for court appearances. The defendant may have to put up a certain amount of money to be released until trial. If they can’t afford it, they may turn to a third-party bondsman, who agrees to cover the amount in exchange for a fee and the right to collateral, such as a house or car, if the defendant doesn’t show up for court.
The court may also impose conditions such as house arrest, GPS monitoring or drug testing while the defendant is released and awaiting trial.
In some cases, if someone is particularly dangerous or a flight risk, judges can decide to hold them until trial.
Why is bail reform on the Ohio ballot?
The push for a constitutional amendment started after the Ohio Supreme Court said in a 4-3 ruling that money bail can be used only to ensure someone’s return to court and that excessive bail is unconstitutional.
Setting a high bond simply to keep someone charged with a crime in jail before trial was “both statutorily and constitutionally unlawful,” the court found. That prompted Republicans to back the proposed constitutional amendment, saying public safety should be a factor considered.
Judges may still deny bail for defendants if it’s found they pose a substantial risk and that no release conditions can reasonably assure the public’s safety, according to Justice Michael Donnelly’s concurring opinion.
Issue 1 opponents include Democratic legislators, Bail Project
Opponents say Issue 1 encourages courts to gamble on public safety, rather than use existing laws to deny bail, and bail only gives the illusion of safety. Violent people with money can just buy their way out of jail while poor people are detained.
The argument against the issue was written by two Democratic legislators − attorney David Leland and former Cincinnati police officer Cecil Thomas.
The Bail Project also opposes the issue, saying: “Judges in Ohio already have the authority to deny bail when public safety is a concern. What the amendment does is double down on the use of money as a proxy for who is detained or released before trial – a practice that discriminates against the poor and disproportionately people of color.”
Ohio Attorney General Dave Yost, GOP legislators support Issue 1
A yes vote on Issue 1 gives clear, unambiguous direction that courts “can consider public safety, among other factors, when setting the financial conditions of bail. The presumption of innocence is a bedrock right in both our nation and our state. However, this presumption does not require the pretense that a career criminal is harmless when released back into the public.”
The argument in favor was written by Republican legislators Theresa Gavarone, D.J. Swearingen and Jeff LaRe.
The issue is supported by Ohio Attorney General Dave Yost and Hamilton County Prosecutor Joe Deters.
Other attempts at bail reform in Ohio
For years, reformers have inched the state toward less reliance on money bail – a system that they say lets rich defendants pay their way out of jail while poor defendants sit behind bars.
Senate Bill 182 and House Bill 315, both introduced in May 2021, would require courts to release defendants on a personal promise to return unless there is a safety risk or a flight risk. The bills also would require courts to consider the ability to pay when setting the bond amounts. Backing the legislation is a broad coalition of justice reformers including Americans for Prosperity, ACLU of Ohio and the Ohio Public Defender.
But legislation has so far failed to move through the Legislature.
OPINION: Cash bail
The Cincinnati Enquirer Editorial Board is writing:
“Ohio can reform cash bail while protecting public safety.”
The entire premise of cash bail is worthy of discussion and debate by lawmakers. Someone’s ability to pay shouldn’t be what determines whether they are held or released before trial. A defendant’s threat to themselves or to the public is a good reason for someone to be held pre-trial, but it is inequitable to translate that to higher bail.
For example, let’s say two people commit the same crime and are both considered to be a danger to the public if released, and a high bail amount is set by the judge. One person has financial means, and the other doesn’t − which means one person might be able to be released, and the other wouldn’t. Now we have a situation that is hardly just − two people who have done the same thing and pose the same threat see vastly different outcomes.
This is the essence of the Supreme Court’s majority opinion in DuBose vs. McGuffey. Chief Justice Maureen O’Connor joined three Democrats on the court in finding that excessive bail is unconstitutional and when setting money bail, judges should only consider whether the defendant is a flight risk − not the seriousness of the crime or public safety concerns. The fact our current system hinges so much on someone’s ability to pay their way out of jail seems unjust, and doesn’t guarantee the public’s safety.
Doubling down on cash bail ignores − and threatens to end − the larger conversation in our state and country about how bail discriminates against poor people and a disproportionate number of people of color. It ignores the fact wealthy (and dangerous) people can make bail and then commit another crime. If the method of denying bail to an accused person is flawed, as prosecutors say, then the Ohio Legislature should focus its attention on expanding that option for more crimes and situations.