The following article was originally published on News5Cleveland.com and is published in the Ohio Capital Journal under a content-sharing agreement. Unlike other OCJ articles, it is not available for free republication by other news outlets as it is owned by WEWS in Cleveland.
With the vast majority of ballots counted, voters in Ohio overwhelmingly chose to approve a constitutional amendment that would change how the criminal justice system functions.
Every single statewide race went to the GOP, and with it, voters sided with Republicans on both ballot issues.
Issue 1 determined if judges should be required to consider public safety when setting bail amounts. The proposal would amend the Constitution and require Ohio courts, when setting bail, to consider public safety, the person’s criminal record, the likelihood the accused will return to court and any other factor the Ohio General Assembly decides.
In January, a majority on the Ohio Supreme Court (OSC) sided with current state law, prohibiting a court from setting excessive bail. Bail is considered unconstitutional when the amount is much higher than necessary to make sure the accused person will return for their court date.
This case was referenced by current OSC justice and now justice-elect Pat DeWine in his victory speech Tuesday night.
“[I] was stunned that four members of the court had decided that judges in Ohio couldn’t consider public safety,” he said. “I knew right then that this was going to be an issue for the voters in the fall.”
Pat DeWine, eldest son of current governor and governor-elect Mike DeWine, has been one of the biggest advocates for Issue 1.
“Voters in this state care deeply about public safety,” he said.
So far, nearly 8 out of 10 voters supported the amendment.
“Public safety is not a partisan issue and Ohio voters; Democrats, Republicans and independents, sent a clear message today that they want policies that put their safety first,” said Lou Tobin with the Ohio Prosecuting Attorneys Association.
Office of the Ohio Public Defender’s Niki Clum wasn’t surprised by the vote, because she said it was purposely confusing for voters.
“The truth of the matter was the nuance behind it was a lot more complicated, and it was a longer story to tell,” Clum said.
State law already allows judges to consider public safety when setting bail, she said, noting that judges don’t have to even allow for bail. What Ohioans have just voted for is actually allowing for excessive and unconstitutional bail, she added.
“Even though everybody in the courtroom may think you’re potentially dangerous — if you have money, you’re walking out of that jail,” she said. “Everybody in the courtroom, they know that you’re not dangerous — but if you don’t have money, you may not be walking out of that jail awaiting your trial.”
Clum gave a hypothetical. Imagine there is a doctor who is a domestic abuser. He gets charged with a first-degree misdemeanor and his bail is $500,000.
Now imagine there is a mother who can’t afford baby formula, so she steals it. She gets caught and charged with a first-degree misdemeanor. Clum said Issue 1 would make it constitutional for her bail to be the exact same as the doctor’s.
Because the doctor has money, he is able to get out, Clum said. The mother can’t.
What happens next?
The state is in a weird gray area at the moment, because this amendment is now in effect.
The second part of Issue 1 would remove the requirement that the procedures for establishing the amount and conditions of bail be determined by the Ohio Supreme Court. This takes away power from the highest court to regulate over lower courts, Clum said.
Ohio now doesn’t have the current standard procedures in place, and since the lawmakers tend to move slowly on issues, it’s possible nothing gets done during the “lame duck” period before those who were elected take office.
In a previous interview about this issue, Fraternal Order of Police’s Mike Weinman said this won’t be an issue.
“The language is vague, I’ll admit, but it does give the General Assembly some flexibility to intercede if they are confronted with a large group of activist judges who are acting on their own and not in the spirit of the law and what the people of the state of Ohio want,” he said.
Even though the protocols are gone, that doesn’t mean that the system is a total “free-for-all,” but it does mean that there will be a lot of confusion for every party in the criminal justice world.
One way to fix this? Have the lawmakers pass bipartisan legislation, such as House Bill 315 and its companion Senate Bill 182, Clum said.
“Those actually put timelines and procedures in place of how quickly a person accused of a crime needs to be before a judge, timelines if they’re going to have a detention hearing,” she said. “The burden of proof is lowered for prosecutors at detention hearings, so all these things are really important to pass so that our criminal courts know how to act going forward.”
How federal law could play in
Although the amount of bail given by an Ohio judge could be legal under the Ohio Constitution, the U.S. Constitution may find it unconstitutional.
“We still have to follow the U.S. Constitution, which still makes excessive bail unconstitutional,” Clum said. “So $1,000,000 on a misdemeanor of the first degree has a chance of not being found constitutional under the U.S. Constitution.”
Defendants have the ability to file habeas corpus petitions, which is when state prisoners can file for a federal court to review their case, which Clum says may increase due to Issue 1 being passed.
This could lead to more litigation, more work for the prosecutors and public defenders, and it could delay justice, she said.
“That is definitely a concern with Issue 1, is that we’re just going to see more and more defendants challenging these high cash bail amounts and then just clogging up the court system,” she said.
Supporters of the amendment have consistently stated that no one is looking to put forward excessive bail, they just want to give judges more autonomy over their courts. So excessive bail will be an issue dealt with as it comes, Weinman told News 5 in a previous interview.
“I’m confident that because of what the voters have done today, we’re going to have an Ohio Supreme Court that does exactly what it’s supposed to, that is: protects the rule of law, applies the laws as written, doesn’t legislate from the bench and by applying the law as written, make sure that everyone gets treated the same and fairly under the law,” DeWine said.
To learn more about a bipartisan bill that tackles wealth-based detention and would allow a court to make pretrial decisions due to dangerousness, not wealth — strengthening the current law — click here.
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