On Nov. 8, Ohio voters will vote on a constitutional amendment that requires judges to consider public safety when setting bail.
The amendment also changes the branch of government responsible for setting bail amounts and conditions.
The Determining Bail Amount Based on Public Safety Amendment appears on the ballot as State Issue 1. It is also referred to as the Community Safety Amendment.
Bail is a set of conditions that assures the court a defendant will appear in court after being released from jail. There are different types of bail, including being released on own recognizance. But in the United States, bail typically is associated with a financial deposit of some amount.
The amendment stems from an Ohio Supreme Court ruling in January (DuBose v. McGuffey) that states $1.5 million bail was excessively high in a murder and robbery case in Hamilton County. The court found that judges could not consider public safety when setting the amount of bail, only the risk of non-appearance.
Under the Ohio Rules of Criminal Procedure, bail conditions should take into account whether a defendant will appear in court and whether a defendant puts the safety of the community at risk. Bail conditions should be set at the least restrictive conditions that ensure those factors.
It also states that if the court orders financial conditions as part of an individual’s bail conditions, “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.”
Republican Reps. Jeff LaRe and D.J. Swearingen introduced the amendment in the Ohio House on March 28. Sen. Theresa Gavarone (R) introduced it in the Ohio Senate on March 29. The amendment passed the House on May 25 and the Senate on June 1, qualifying it for the General Election ballot.
Advocates say Issue 1 ensures that judges must consider public safety when setting bail, along with other factors.
“Prosecutors, judges, and victims of crime from around the state have expressed concern that without the consideration of public safety, dangerous and violent criminals may be released back onto Ohio’s streets with no consideration given to the threat posed to the public,” LaRe, Swearingen, and Gavarone write.
Ohio Attorney Dave Yost and the Ohio Prosecuting Attorneys Association also support the amendment.
Opponents say bail reform is needed, but not through Issue 1. They contend that bail doesn’t necessarily keep the community safe and dangerous offenders behind bars. Rather, an individual can make bail and then commit additional crimes.
“Issue 1 amends the Ohio Constitution to fix a nonexistent problem,” said Paul Higgins, policy counsel for the ACLU of Ohio. “… We know that cash bail does not keep us safe, and this ballot measure only doubles down on the failed status quo, where wealthy individuals can purchase their freedom simply because they have the money to do so.”
Piet Van Lier, writing for Policy Matters Ohio, said that “under Ohio’s cash bail system, people accused of a crime can be held in jail for days, weeks or months while awaiting trial simply because they can’t afford to buy their freedom.”
Additionally, Lier believes the current bail system goes against the idea that people are innocent until proven guilty.
Clinton County Municipal Court Judge Mike Daugherty said that if Issue 1 only involved public safety, he would support it. However, he opposes it because it takes away the authority of the Ohio Supreme Court to set trial court rules and gives it to the General Assembly.
“There is a reason why the power of government has to be split between three separate branches … If we are to remain a free society, and if Ohio is to remain a good place to live, we cannot let one branch of government take over. The three branches must have separate powers to keep them accountable to us — the people,” he wrote in the Wilmington News Journal.
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