Issue 1, which would require considering public safety when setting bail, debated at local voter forum

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ATHENS, Ohio (WOUB) — Ohio voters are being asked whether judges should be required to consider public safety when setting bail for defendants in criminal cases.

The shadow of a jail doorIssue 1 on the November ballot, if it passes, would do just that. It is the result of a swift backlash against an Ohio Supreme Court decision early this year. 

No one questions whether judges should be concerned about public safety. The central question raised by Issue 1, and what divides supporters and opponents, is: What is the purpose of bail?

Bail allows for certain people charged with crimes to stay out of jail while their case is moving through the court.

Judges in Ohio have traditionally considered public safety when setting the amount of bail. But in January the Ohio Supreme Court said they could not do this.

In its decision, the court distinguished between the dollar amount of bail and other possible conditions of bail, such as house arrest or electronic monitoring.

When it comes to the amount of bail, the court said, the only allowable consideration is the amount necessary to provide the defendant with sufficient financial incentive to return to court.

People who post bail get that money back if they keep their court appointments. If they don’t show up to court, they can lose the money and end up back in jail.

The Ohio Supreme Court cited previous decisions by the court and decisions by the U.S. Supreme Court in support of its position.

Criminal defense attorneys and critics of the cash bail system, who argue it penalizes people for being poor, applauded the court’s decision.

“The primary purpose of using cash in bail is to make sure that a person comes back for their trial date. It’s not to punish a person. It’s not a gauge of their morality. It is to make sure there’s enough money on the line that they come back for their trial date,” Patrick Higgins, policy counsel for the American Civil Liberties Union of Ohio, said during a recent forum hosted by the Athens County League of Women Voters.

Prosecutors, victim advocates and other critics of the court’s decision argued it would force judges to put dangerous people back on the street.

“To us, it’s about public safety, it is about protecting communities and keeping dangerous offenders away from the victims and from committing more crimes,” said Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, who represented supporters of Issue 1 in the League’s forum.

Soon after the court’s decision, the state Legislature took action to put Issue 1 on the ballot, which would amend the state constitution.

Issue 1 simply gives discretion back to judges, Tobin said. “Public safety will just be considered along with everything else when judges are setting a reasonable amount of bail,” he said.

Higgins disagreed with this characterization, saying Issue 1 does not give judges discretion but instead requires them to consider public safety when setting bail. Issue 1 does use the word require.

Forcing judges to consider public safety when setting bail does not mean the public will be protected, Higgins argued. He gave an example of two people who are believed to pose an equal threat to the public, but one of them can afford to pay bail and the other cannot.

This does not protect the public but instead penalizes defendants who are poor, he said. “We think it’s unfair that a person could purchase their freedom,” he said.

Higgins said it’s also important to remember that bail decisions involve people who have been accused of a crime but haven’t been convicted because it’s still early in the process and their cases have not yet gone to trial.

“We’re talking about people who are legally innocent,” he said. If people cannot afford bail, they’re being punished before they’re convicted, he said. And while stuck in jail, he said, they cannot go to work or take care of their families.

Tobin argued that Issue 1 would not create a system that discriminates against the poor. It returns the bail system back to where it was before the Ohio Supreme Court’s decision.

“Nothing about this is going to allow judges to all of a sudden start detaining people because they’re not wealthy,” he said. “We are just trying to get a judge to consider all relevant information. Surely public safety is a relevant consideration.”

Higgins argued that what the court’s decision did was take a system that was inherently discriminatory against the poor and instead required that bail be tied more directly to a person’s ability to pay.

What Issue 1 would do, he said, is take the previously flawed system and enshrine it in the state constitution.

“If we’re relying on cash as a proxy to consider public safety … there are going to be people that cannot afford their bail and that does result in wealth-based detention,” Higgins said.

Higgins said a better approach to protecting the public from defendants who are considered a threat is to use other conditions of bail, such as confining them to house arrest, requiring them to wear electronic monitoring devices, and ordering them not to contact victims or witnesses.

Another option is to not grant bail at all and keep the defendant in jail until their trial. Right now this option is available in Ohio only for the most serious crimes. But bail reform bills pending in the Legislature, which have bipartisan support, would expand the list to include more offenses, said Higgins, who supports the bills.

Tobin said that house arrest and electronic monitoring don’t offer as much protection as one might think. No one is watching all day to make sure defendants don’t leave their home. And while electronic monitoring does allow defendants to be tracked, no one is keeping a constant eye on this either.

“Electronic monitoring and house arrest provide a false sense of comfort,” Tobin said.

Tobin said he supports expanding the options for keeping defendants in jail without bail. But this also presents challenges, he said. Keeping someone in jail without bail requires a hearing, and victims can be forced to testify at these hearings and be cross-examined, which can retraumatize them within days of the crime, he said.