Bail reformers call on familiar evidence to advocate against reliance on cash bail

The day after Ohio House leaders put the brakes on cash bail-centric legislation, a different, long-simmering bail reform measure got it’s third hearing in committee. The measures offer alternative approaches to protecting public safety, and their supporters are invoking some of the same cases to make their point.

When the proponents of the cash bail measure introduced their plan in March of this year, they were flanked by Hamilton County prosecutor Joe Deters and Attorney General Dave Yost. Their pitch was a constitutional amendment directing judges to weigh any risk to public safety when they set the dollar amount of bail.

They needed that amendment, they said, because the state supreme court had ruled public safety is a valid consideration for some aspects of pre-trial release, just not the dollar amount.

Deters pointed to the case of Lonnell Anderson, who shot and killed Derek Smith while out on bond for a weapons charge. The judge set Anderson’s bail at $4,000 and he was able to secure his release by putting down one tenth of that amount. Deters argued it’s too easy for violent defendants to get out of jail and continue committing crimes.

“If you want to know the predictor of future behavior, it’s past behavior,” Deters argued. “These guys keep doing the same thing over and over again. This isn’t a secret and the judges have to have the ability to stop it.”

In committee Thursday, Alan Smith of the Buckeye Institute went in a different direction. He brought up the Anderson case in a list of murders that happened while defendants were out on bond, to make the point that they shouldn’t have had the opportunity to post bond in the first place.

“Court ordered cash bail didn’t prevent these murders,” Smith explained. “But we think that prudent pretrial detention systems might have.”

Pretrial detention, which keeps a class of potentially violent defendants behind bars until trial, is at the core of HB 315, which came before committee Thursday. In addition to expanding the list of offenses eligible for detention, it lowers the threshold prosecutors must clear during detention hearings. It also establishes a floor and a ceiling for calculating cash bail when a judge deems it appropriate, and expands to 17 the list of conditions judges can set for release.

D.J. Swearingen, R-Huron, who is co-sponsoring the cash bail measure, expressed skepticism throughout the hearing. Critics of his measure routinely bring up the point that excessive cash bail violates the state and federal constitution. Swearingen turned the point back — citing a defendant’s constitutional right to be afforded bail, and questioning whether the expanded list of pretrial detention offenses would pass constitutional muster.

“I’m going to respect the plain text of our Ohio Constitution and say okay, there’s only certain circumstances where you can be held pretrial without bail,” Swearingen said.

How useful is HB 315’s ability-to-pay calculation, he went on, when criminals aren’t exactly reporting their earnings to the IRS?

“I realize we live in an imperfect world with an imperfect system,” he argued, “but to let people out without considering public safety as part of cash bail, and just to say 25% of your income when the reality is there’s sophisticated criminals in this world that hide their assets and know how to game the system — I just can’t, I can’t.”

But in a pattern that played out throughout the day’s hearing, one side’s argument was ready fodder for the other’s. Niki Clum from the Office of the Ohio Public Defender argued back that hidden assets and finances underscore the problem with relying on cash bail in an attempt protect the public.

“Your frustration about protecting public safety is exactly the flaw in cash bail,” she argued, “because a sophisticated criminal can hide their money. So we set a million dollar bail hoping that that sophisticated criminal can’t pay it, but if they can, they get out.”

“Doesn’t it make more sense to have a pretrial detention hearing if that is warranted?” she pressed on, “Doesn’t it make more sense to have these 17 pretrial release conditions so that we have a better chance of protecting the public than just rolling the dice and hoping they can’t pay it?”

House lawmakers will likely have a few more opportunities to parse those questions in the coming weeks.

With the summer recess looming, time is running short for Swearingen’s proposal to get the necessary votes to make November’s ballot. With the partisan balance on the supreme court up for grabs this election, it seems clear some Republicans want to put a tough-on-crime proposal before the voters.

Swearingen’s measures are teed up for the House floor, but at the last minute some Republican lawmakers expressed reservations about voting on it without HB 315 proceeding as well. Committee chair and Swearingen’s co-sponsor, Rep. Jeff LaRe, R-Violet Township, said he was working to move HB 315 through committee quickly, but he also noted it’s a much more complex measure than the one he and Swearingen are proposing.

Whatever the case, House Speaker Robert Cupp said Wednesday he expects their proposal to get a floor vote soon and to make the ballot his November.