Ohio Supreme Court: Cash-Only Bail Is Unconstituitional

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The Ohio Supreme Court ruled a judge can’t order defendants to put up cash only to get out of jail, but that they must accept surety bonds and other forms of bail as well.

Two bail bonds companies from Columbus and Canton sued the Licking County and Wayne County Common Pleas Courts. The bail bonds companies said those courts’ requirement of 10 percent cash for bail and their refusal to accept surety bonds – which are backed by some kind of security – are unconstitutional.

Before the Ohio Supreme Court in February, Kendra Carpenter argued for the bail bonds companies that the method of posting bail is the defendant’s choice, not the courts. 

“The Ohio Constitution affords every Ohio citizens the right to a surety, to a sufficient surety to be bailable out of jail so that no citizen is unduly detained in jail beyond what is necessary,” Carpenter said.

But Assistant Attorney General Christopher Armstrong said the rule was written to allow judges, who deal with defendants all the time, the freedom to require whatever will bring them back to court. 

“The court has an interest in selecting the right combination of sanctions, the right incentives to ensure the defendant’s appearance and to protect the public,” Armstrong said.

And Armstrong said the 10 percent cash rule actually protects defendants.

“The rule allows the court to provide the defendant a carrot instead of just a stick in order to ensure the defendant’s appearance at trial," he said. "Because the court can’t obviously force a bail bondsman or another surety to refund any of the defendant’s money the defendant might put down on a bond, the court, though, can do that itself.”

Carpenter came back with a short list of defendants who were held in jail for several days and even months because they didn’t have the cash to bail out, and then Justice Paul Pfeifer jumped in. 

“One of these persons only had a $2,500 bail and stayed in jail 15 days. This court has already determined – “ Carpenter began.

“Were these all innocent people?” Pfeifer said. "Were these all innocent people that you just articulated?”

"Your Honor, every person is innocent until proven guilty," Carpenter said.

The court sided with the bail bonds companies, saying the cash-only rule is unconstitutional, and that it could set up a situation where only wealthy defendants could get out on bail. But the court said there was no need to award damages to the bail bonds companies for their lost businesses. 

Justices Pfiefer and Terrence O’Donnell disagreed with the majority. Pfeifer said that it’s clear that local courts have the discretion to set terms on bail, and that cash-only is usually cheaper for defendants than using a bail bondsman. And O’Donnell wrote that he’d rather see bail determined on a case-by-case basis instead of a blanket rule, which he wrote could lead to injustice.