CINCINNATI — Ohio voters have an opportunity on Election Day to overturn an Ohio Supreme Court decision on the way judges use bail.

Issue 1 — one of two state constitutional issues on the ballot — is a proposed amendment to the state’s constitution that would require judges to consider public safety when determining a defendant’s bail.

Under Issue 1, judges would need to consider several factors, including the seriousness of the offense, as well as a person’s criminal record, the likelihood the person will return to court, and any other factor the Ohio General Assembly may prescribe.

The current system requires the Supreme Court of Ohio to determine the procedures for establishing the amount and conditions of bail.

To pass, Issue 1 needs a majority (more than 50%) “yes” vote. If passed, the amendment would go into effect immediately. 

Election Day is Tuesday, Nov. 8.

“In its simplest terms, Issue 1 takes the Ohio Supreme Court out of evaluating whether bail is fair,” said David Niven, a political science professor at the University of Cincinnati. “It really puts all the power in the hands of judges to use bail as they want, with respect to the seriousness of the charges and with respect to a defendant’s criminal background.”

The origin of Issue 1

Issue 1 directly results from an Ohio Supreme Court ruling in DuBose v. McGuffey this past January. In a 4-3 decision, the court found that a $1.5 million bond for a Cincinnati man accused of killing someone during a robbery was too high.

In its ruling, the court majority stated that public safety couldn’t be considered when setting monetary bail. Concerns expressed by the victim’s family members and evidence that the suspect presented a false ID when confronted after fleeing to Las Vegas, weren’t factors relevant to the amount of bail, the court found.

Instead, the Supreme Court ruled that only the risk of non-appearance could be considered when deciding on cash bail.

Since the decision, prosecutors and judges 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. Among them are Ohio Attorney General Dave Yost and Hamilton County Prosecutor Joe Deters, both Republicans. 

“We thought it was outrageous,” Deters said. “The Supreme Court took the power away from the judges that set bail every day.”

Considering the ruling, State Rep. Jeff LaRe, R–OH 77, and State Rep. D.J. Swearingen, R–OH 89, introduced the amendment on March 28. 

It passed decisively in both bodies of the legislature: 63-33 in the Ohio House of Representatives on May 25, and then 25-7 in the State Senate on June 1.

Deters and other Issue 1 supporters stressed that the amendment would make it easier to detain potentially dangerous defendants while they await trial. But its opponents say they believe the measure will disproportionately affect poorer defendants.

“The people who are really going to bear the brunt of this constitutional amendment are indigent Ohioans,” said Niki Clum, the legislative policy manager for the office of the Ohio Public Defender.

The Ohio Public Defender’s office supervises the indigent defense system — a network of attorneys who work with clients who can’t afford legal counsel — throughout the state. The office has been outspoken in its objection to Issue 1.

Clum described the proposal as having the potential to create a “two-tiered criminal justice” for those who can pay their bail and for those who can’t.

Many defendants who can’t afford to pay even a relatively small amount of money may end up having to stay in jail, losing jobs and contact with family while they await the outcome of their case, she said.

“Ultimately, we’re just guessing at what amount it takes to protect the public instead,” Clum added. “Then, if somebody doesn’t have money, and they’re not dangerous, they also get stuck in jail, just because they can’t pay for their liberty.”

Part of Clum’s objection to Issue 1 is a misconception that because of the Supreme Court decision, judges can’t consider public safety when setting bail.

“What the Supreme Court said was that cash bail is about making sure the defendant returns to court,” she added. “The Ohio Supreme Court also restated that the court absolutely should consider public safety and they can do that in several ways.”

Clum noted the existence of several non-bail legal mechanisms available to address those same public safety concerns, including GPS monitoring, house arrest or requiring a defendant to check in with a pretrial service officer. They can also ban someone from contacting a victim or others involved in the case.

Court records show that electronic monitoring was used in the Cincinnati murder suspect’s case, according to court records from the Associated Press.

In response, Deters emphasized that there’s no monetary cap on a bond. A “judge could set a bond at $1 trillion and that person will not make that bond,” he said. 

Deters feels the chief critics of Issue 1 are public defenders who are looking out for the “mythical poor guy, nonviolent, first-time offender type who’s in jail.”

“It’s total bullcrap. It doesn’t exist,” he said.

Clum pointed out that the presumption of innocence until proven guilty applies to every defendant, even those accused of violent offenses or those with prior convictions.

A national push for bail reform

Issue 1 comes at a time of national debate over changes to bail systems.

New York state eliminated cash bail for many nonviolent offenses in 2020, raising similar concerns about public safety, and New Jersey also eliminated cash bail in 2017.

Last year, Illinois eliminated cash bail as part of major changes to the state’s criminal justice laws.

In Ohio, the legislature is doing committee work on a separate plan that would create a presumption against cash bail.

“What’s striking is, nationwide, there’s been an awakening to the idea that bail often functions as punishment,” Niven said. “What Issue 1 does is really stop the conversation in Ohio about reforming bail and trying to move past cash bail.”

Deters described the ballot language as being “crystal clear.” Niven agreed, noting that while there’s not much confusion over what’s actually being started on the ballot with Issue 1, the implications of passing those issues are “hard to see and understand.” 

“I think voters are going to look at the ballot and probably assume things like this are already in place,” Niven added. “What they’re going to miss is that the actual effect will be to take away any of the court’s ability to impose protections for Ohioans and to ensure their rights are protected.”

Opponents of Issue 1 have criticized it over the fact it transfers power from the Supreme Court to state lawmakers.

“The Ohio Supreme Court has the expertise of setting bail and setting the procedures around bail. The legislature does not,” Clum said. “Issue 1 would remove that expertise from the process and give the power to the legislature because the legislature didn’t like a Supreme Court opinion.”

But Deters believes it is the Supreme Court itself that took the power away from the judges.

“They’re the ones who set bail every day,” he said. “If it means the legislature is setting parameters for bond, I’m all for it. I’m all for it if it would stop the Supreme Court from doing something stupid like they did in the DuBose case.”