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Ohio Supreme Court bail ruling sparks debate over public safety and penalizing the poor
By: David Forster
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ATHENS, Ohio (WOUB) — Prosecutors routinely cite concerns about public safety when asking a judge to set a high bail for a criminal defendant. The Ohio Supreme Court said they can’t do this anymore.
But it has stunned many prosecutors and judges, who argue it will restrict their ability to keep dangerous suspects in jail until they either go to trial or strike a plea deal.
Supporters and critics of the decision alike predicted some prosecutors and judges would simply ignore the court’s ruling. Some critics hoped state legislators would step in and try to undo the court’s decision.
And that’s just what happened. Two weeks ago, Republican lawmakers introduced a proposed constitutional amendment that would require courts to consider public safety when setting bail.
Ohio Attorney General Dave Yost framed it this way during a news conference with lawmakers announcing the proposed amendment: “We’re going over the heads of the Supreme Court to the people.”
Critics of the court’s decision in DuBose v. McGuffey look to change the state constitution in part because the court grounded its arguments in the state and federal constitutions.
If the Legislature approves the proposed amendment with a three-fifths vote, it would then go on the ballot for voters to approve.
Lines drawn over proposal
The proposed amendment, House Joint Resolution 2, has had three hearings so far before the House Criminal Justice Committee, where it has drawn support from law enforcement groups.
“This joint resolution is an important and necessary step to ensure communities across the State of Ohio are protected from violent criminals,” Hamilton County Prosecutor Joseph Deters wrote in testimony submitted to the committee.
If judges cannot consider public safety when setting bail, he wrote, dangerous defendants will get out of jail on low bail and commit more crimes. “Because the bottom line is, violent people will continue to perpetrate violence until they are stopped,” he wrote.
Opposition has come from organizations across the political spectrum that don’t always or even often find themselves on the same side of a public policy debate.
The American Civil Liberties Union of Ohio is among the opponents, as is Americans for Prosperity, a conservative libertarian political advocacy group founded by industrialists David and Charles Koch.
The court’s DuBose decision landed as Ohio lawmakers are considering two bills that would overhaul the state’s bail system. House Bill 315 and Senate Bill 182 have broad bipartisan support and are part of a bipartisan push in many states to reform or even eliminate the cash-bail system.
The Buckeye Institute, a conservative-leaning Ohio think tank that supports the two bail reform bills, hasn’t taken a formal position on HJR 2, but submitted testimony raising concerns about it and promoting the two reform bills as a better solution to addressing concerns about public safety.
Robert Alt, the institute’s president and chief executive officer, captured the sentiment of many who oppose the proposed constitutional amendment, arguing that bail protects the public only from those who cannot afford to post bail.
“Simply put: requiring judges to consider public safety in setting cash bail … does not provide a meaningful guarantee of public safety,” he wrote. “A defendant’s financial means to post bail is not an adequate proxy for public safety nor a sufficient indicator of future good behavior.”
What is excessive bail?
In its DuBose decision, the Ohio Supreme Court drew a distinction between the dollar amount and other conditions of bail, such as requiring defendants to wear an ankle monitor or be confined to their home.
The court said the dollar amount of bail should be based only on what is enough to provide sufficient financial incentive to get defendants to return for their court dates. It cited a 1951 U.S. Supreme Court decision, Stack v. Boyle, in which that court was interpreting the Eighth Amendment to the U.S. Constitution.
It’s the shortest amendment in the Bill of Rights and is likely familiar to most people because of its ban on cruel and unusual punishment. But the amendment also bans excessive bail.
It does not, however, define what that means.
Over the years, the U.S. Supreme Court has offered some interpretation.
In its Stack decision, the court said bail allows defendants to prepare their defense without the limitations that come with sitting in a jail cell. It also preserves the presumption of innocence because defendants are not being punished before they’re convicted.
“Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning,” the court said.
As for the amount of bail, the court said a figure higher than what is necessary to ensure the defendant returns to court is excessive under the Eighth Amendment.
“Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant,” the court said.
Lou Tobin, executive director of the Ohio Prosecuting Attorneys Association, pointed to another more recent U.S. Supreme Court decision, cited by one of the Ohio justices who dissented in the DuBose case.
In 1987, in United States v. Salerno, the court took up the question of whether criminal defendants have a constitutional right to bail. The case involved a new federal law that allowed certain defendants charged with serious crimes to be held without bail pretrial in the interest of public safety.
The court upheld the law, saying there is no absolute right to bail in all cases and that a defendant’s interest in bail could be weighed against significant government interests, such as public safety.
In reaching this decision, the court revisited its 1951 decision in Stack. It said the Eighth Amendment does not limit bail considerations only to whether the defendant will reappear in court.
“The only arguable substantive limitation of the Bail Clause is that the Government’s proposed conditions of release or detention not be ‘excessive’ in light of the perceived evil,” the court said.
So, if the chief concern in a particular case is that the defendant return to court, then “bail must be set by a court at a sum designed to ensure that goal, and no more,” the court said, reaffirming the Stack decision.
But if instead the chief concern is some other compelling government interest, such as protecting the public from a dangerous defendant, what is excessive must be considered in this context, the court said.
Public safety and the conditions of bail
In Salerno, the U.S. Supreme Court was evaluating a new federal bail law. In DuBose, the Ohio Supreme Court was interpreting one of the procedural rules that guide how the state’s courts operate.
That rule, Criminal Rule 46, deals with bail. It was amended two years ago, and the court said those changes make clear that “public safety is not a consideration with respect to the financial conditions of bail.”
If a court is concerned that a defendant poses a serious threat to public safety, the court said, that can be addressed through other conditions of bail such as home confinement, electronic monitoring and restrictions on where a defendant can go and whom they can have contact with, such as the victim or their family members.
Prosecutors and others who dislike the DuBose decision will cite examples where a defendant got out on bail and seriously injured or even killed someone, said Joe Patituce, who sits on the board of the Ohio Association of Criminal Defense Lawyers.
“When it does happen it’s horrible, it’s tragic,” he said. But these cases are the exception, he said. “It’s so miniscule the number who go out and harm people.”
In cases where there is a legitimate concern about public safety, Patituce said, setting a high bail discriminates against poor defendants and doesn’t protect the public from those with the means to post bail.
“Ability to pay bail is a poor indicator of a person’s risk to the community,” Jeff Dillon, Ohio legislative director of Americans for Prosperity, wrote in testimony to the Legislature opposing HJR 2.
Keeping defendants in jail because they cannot afford bail also makes it more difficult for them to work with their attorneys on preparing a defense, said Dan Sabol, incoming president of the criminal defense lawyers association. It also means they cannot go to work, he said, putting their job at risk and possibly leaving their families in an economic bind.
This is used as leverage to get defendants to make a plea deal, Sabol said. “Prosecutors often make offers holding the keys to their jail cells,” he said. “Even innocent people will say I’ll do it to get out.”
If the prosecutor can make the case that a defendant poses a threat to the victim or others in the community, there are conditions of bail the court can impose to address that, as the court noted in DuBose, Patituce said.
The court also mentioned another option available under Ohio law, which is to deny bail and hold the defendant in jail pretrial.
This option is limited to first- and second-degree felonies, although the bail reform bills pending in the state Legislature would expand the list to include other felonies, including domestic violence.
Possible political consequences
Tobin of the prosecuting attorneys association said that if a defendant is determined to commit more crimes and possibly harm someone, the bail conditions the court mentions in DuBose are not going to stop them.
“It’s nonsense,” he said.
A GPS ankle monitor will show where someone is, but “there’s nobody actually sitting and watching what the person is doing,” Tobin said. It’s the same with house arrest, he said. These conditions of bail largely depend on defendants doing what the court has ordered them to do. “For the people who really do present some sort of public safety threat,” he said, “telling them to stay at home doesn’t do anything.”
And this can have political consequences for prosecutors and judges, who are elected in Ohio. If a defendant gets out on a relatively low bail and commits a serious crime, this can come back to haunt them in the next election, especially if an opponent decides to make a big deal out of it in their campaign.
“This office takes a lot of public criticism when people are arrested and then get back out,” said Athens County Prosecutor Keller Blackburn.
Tobin acknowledged that denying bail to eligible defendants would keep them off the streets, but said this isn’t an ideal solution either. Prosecutors have to present evidence of the threat to justify holding a defendant without bail. This might involve asking the victim or other witnesses to testify and be subject to cross-examination by the defense.
“The prosecution may have to show a little bit of its hand,” Tobin said, aiding the defense.
It also may force a victim to relive the trauma within days after the crime occurred, he said. It’s hard enough getting victims and other witnesses to testify in some cases, he said, and this would require them to do so more than once, not just at trial.
“A big part of the concern is the impact it’s going to have on victims and witnesses,” he said.
Tobin also said because this option is only available for first- and second-degree felonies, it excludes many lower-level but still violent offenses. The only way to keep these defendants in jail if they pose a threat to public safety is to set a high bail, he said, which the DuBose decision no longer allows.
But even if the proposed constitutional amendment to invalidate DuBose passes, there’s still the Eighth Amendment prohibition against excessive bail. And the question is whether bail set so high a defendant cannot possibly get out of jail is by its very nature excessive.
Setting bail well beyond a defendant’s financial reach has been used as a proxy for denying bail altogether without making the prosecutor demonstrate why the defendant should not be released from jail, said Patrick Higgins, policy counsel for the American Civil Liberties Union of Ohio.
“For some people if it’s $10,000, it might as well be $10 million,” he said.
Tobin said he couldn’t say at what point bail should be considered excessive and that the courts haven’t made it clear either.
“There’s just not a bright line answer to the question,” he said.
Enforcing the rule
For now, the DuBose decision has established the rule courts are expected to follow. The expectation is that prosecutors and judges will, however grudgingly, follow the state Supreme Court’s guidance.
But some may not. “There’s going to be a judge that never changes, a prosecutor who keeps asking for bigger amounts,” said Tim Young, director of the Ohio Public Defender’s Office.
Paul Pfeifer agrees. He was an Ohio Supreme Court justice for more than 20 years and is now executive director of the Ohio Judicial Conference.
Pfeifer said he has heard from some judges who believe the decision is so misguided they may not always follow it.
“If the judge believes the person is a potential danger to the victim or to the community, they’re going to go on setting high bonds and they’re going to ignore DuBose,” he said.
On the other hand, the decision might force judges to take a harder look at which defendants actually should be in jail, Pfeifer said.
“I think the practical application of this will be that prosecutors are on notice if they have somebody they think is dangerous they’re going to have to present some good reasons to the judge,” he said.
This might reduce the number of defendants in sitting jail pretrial, which Pfeifer and many others across the political spectrum agree would be a good thing for a variety of reasons, including the high cost of housing them.
In cases where prosecutors and judges are disregarding DuBose, it will fall to defense attorneys to try to enforce it. This means filing a legal challenge that may end up before a state court of appeals.
The process takes time and in some cases even if the challenge is successful it may be too late to help the defendant because their case may be over by then, said Sabol of the criminal defense lawyers association.
But if enough of these challenges are successful, it will send a message that DuBose is going to be enforced, said Petituce of the defense lawyers association.
“I think the number of judges who would actually sit there and say the heck with the Supreme Court is very small,” he said. “I think overall a lot of judges take being reversed very, very seriously.”