How should judges set cash bail? Experts debate Issue 1

Proponents and opponents of Ohio State Issue 1 defended their stances at a virtual forum hosted by the League of Women Voters of Athens County on Thursday. Ohio Issue 1 is a proposed state constitutional amendment that will be on the ballot on Nov. 8, which will seek to alter the way courts determine cash bail amounts.

Patrick Higgins, policy counsel at the American Civil Liberties Union (ACLU) of Ohio, and Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, responded to questions presented by the League of Women Voters and questions submitted by the public prior to the event. The League of Women Voters hosted the forum to educate voters in time for the upcoming election and has not taken a stance on the issue. 

Ohio Issue 1, the Determining Bail Amount Based on Public Safety Amendment, will appear on all Ohio ballots. If passed, courts would be able to consider factors like public safety, the seriousness of the offense, a person’s criminal record, the likelihood a person will return to court and any other factors the Ohio General Assembly may prescribe as relevant. 

Additionally, the Supreme Court of Ohio will no longer be required to determine the procedures for establishing the amount and conditions of bail. These decisions would be up to the discretion of the judge.

“We think the court is in the best position to be making those rules. And, you know, frankly, I think, you know, gets a lot messier when we put it in the hands of the legislature, rather than going through the Supreme Court.

The Ohio General Assembly proposed Ohio Issue 1 in response to the Ohio State Supreme Court case DuBose v. McGuffey. In January, the court issued a 4-3 ruling that stated the $1.5 million bail of a criminal defendant charged with murder, burglary and robbery was excessive. Under the Ohio and United States Constitutions, excessive bail is a violation of civil rights.

“To us it's about public safety,” Tobin said in his opening statement. “It is about protecting communities and keeping dangerous offenders away from the victims and from committing more crimes.”

However, Higgins stated that this should not be the purpose of the cash bail.

“The primary purpose of using cash in bail is to make sure that a person comes back for the trial date,” Higgins said in his opening statement. “It's not to punish a person, it's not a gauge of their morality, it is to make sure that there's enough money on the line that they come back for the trial date.”

As a result of DuBose v. McGuffey, the defendant’s bail was reduced to $500,000. However, Higgins said, there are other methods the courts can utilize to detain individuals who are a threat to the public. Judges can deny bail if they believe an offender poses a potential threat to a victim or witness. 

According to Ohio law, aggravated murder, murder, 1st and 2nd degree felonies, aggravated vehicular homicide and felony OVI (operating a vehicle impaired) are offenses for which a judge can deny bail. 

Higgins added that public safety can be protected with non-financial conditions of bail, such as drug test screening, house arrest, criminal protection orders, electronic monitoring and other requirements.

“There are however offenders who get placed on electronic monitoring units and cut them off and fail to show up for court or go on to harm victims and witnesses and go on to commit other horrendous crimes,” Tobin said. “There are other people who non-financial conditions just aren't good enough for.”

Tobin added that electronic monitoring units are not watched at all hours of the day, and therefore someone could potentially get away with a crime.

Still, Higgins backed his position, fearing that giving the power of discretion to the judges and the General Assembly would undermine the power of the courts.

“We think the court is in the best position to be making those rules,” Higgins said. “Frankly, I think it gets a lot messier when we put it in the hands of the legislature, rather than going through the Supreme Court.”

However, Tobin rebutted that the DeBose decision has tied the courts' hands. By passing Ohio Issue 1, courts are given more tools to protect their communities.

“Judges have the best position to decide that, they're locally elected,” Tobin said. “If people aren't happy with the decisions that they're making, either because they're letting the wrong people out or keeping the wrong people in. That's why we have elections.”

Additionally, because the amendment would give more discretion to the judge, opponents of the amendment believe it will disproportionately impact lower-income people who typically have more difficulty raising cash bail.

“Nothing about this creates a wealth-based detention system,” Tobin said. “It allows judges to set bail, and an amount of bail that's reasonable based on the circumstances.”

Tobin added most crime occurs in underserved communities, and that he believes the people who will be released will return to those neighborhoods to commit more crimes, harming “the very people” that opponents of Issue 1 “claim to want to help.”

However, Higgins stated that cash bail already falls heavily on low-income communities and that Issue 1 would “literally enshrine the use of cash bail into our state constitution,” further perpetuating this inequality.

In his closing statements, Higgins asked voters to consider the seriousness of making an amendment to the state constitution.

“There are real human lives on the line here and yes, we all want to live in safe communities, we all deserve that,” Higgins said. “The people who are navigating our pre-trail system are legally innocent, they have families, they live in communities, they also have a big price to pay here.

Tobin closed by encouraging voters to give judges the tools they need to protect the public by voting in favor of Ohio Issue 1. 

“All we're trying to do is to get judges to consider public safety along with a variety of other factors, anything else that the court considers relevant when deciding whether a person should have bail, what the amount of bail should be, whether they can be released on conditions of bail or whether potentially they should be ordered detained altogether,” Tobin said.

A recording of the forum can be viewed on the League of Women Voters of Athens County Facebook page or on their website at AthensLeagueofWomenVoters.org.

Early voting has opened in Ohio, and polling locations can be found on the Ohio Secretary of State’s website. Election day is on Nov. 8.