Less than two years after Ohio amended Criminal Rule 46 in a bipartisan process to reduce the use of cash bail so those without means don’t unfairly stew in jail awaiting trial, the GOP bench in favor of bail reform seems to have cleared.
Instead, we’re seeing a lot of grandstanding and misinformation in a misguided effort to get an Ohio constitutional amendment on the Nov. 8 ballot to widen use of cash bail. Never mind that such an amendment is being oversold. It cannot undo either Crim. R. 46 requirements or the U.S. constitutional bar against excessive bail.
Simply put, House Joint Resolution 2, sponsored by state Reps. Jeff LaRe of Fairfield County near Columbus and D.J. Swearingen of Huron, and Senate Joint Resolution 5, sponsored by state Sen. Theresa Gavarone, also of Huron, are little more than a confused mass of hot air sitting atop a mound of inaccurate assertions that public safety can’t be considered in setting bail.
Safety can be considered -- if the decision is that someone is too dangerous to be let out and must be held in jail prior to trial. That decision in turn triggers a pretrial detention hearing so the suspect and his or her attorney can make their case for bail, before being held without it.
As legal expert after legal expert has patiently explained to House and Senate committees during hearings on HJR 2 and SJR 5, unaffordable bail imposed without such a hearing is by definition excessive and, as such, contrary not just to Ohio law but also the U.S. Constitution’s Eighth Amendment, which explicitly bars “excessive bail.”
At the same time, Ohio law already provides for pretrial detention hearings to protect the public’s safety when required -- without need of a constitutional amendment.
Yet, when the time came Thursday to vote on HJR 2 -- and a related bill, House Bill 607, also sponsored by LaRe and Swearingen -- the result was predictable. Party-line 7-2 votes in the House Criminal Justice Committee to send the resolution and bill to the House floor.
Voters should be surprised, however, that lawmakers seem to be moving like lightning on this legislation while proceeding snaillike on critical 2022 redistricting decisions.
The reason: Urging folks to the polls Nov. 8 to amend the Ohio Constitution supposedly to make safety a requirement of bail decisions may, to some at the Statehouse, seem like a surefire way to turn out law-and-order voters for critical mid-term elections.
Too bad that what the constitutional amendment (and related legislation) really seeks to do is to distort bail reform and challenge Ohio Supreme Court precedent by making excessive cash bail easier to achieve. And, in the process, with three Supreme Court positions, including chief justice, on the Nov. 8 ballot, maybe change the composition of the court.
A key focus of this parade of misinformation is the Ohio Supreme Court’s 4-3 January ruling in Dubose v. McGuffey, in which the majority upheld an appellate court ruling that a trial court’s decision to impose $1.5 million bail against an accused Hamilton County murderer, Justin Dubose, without a pretrial detention hearing, amounted to excessive bail. The appellate court reduced Dubose’s bail to $500,000, which the Supreme Court majority also upheld, noting that, under Crim. R. 46, once a determination is made to set bail and not hold a suspect prior to trial for public safety reasons, it becomes a mostly financial exercise to set bail sufficient so that the suspect will appear for trial -- while other non-bail means can be used, such as GPS monitoring and home detention, to restrict the defendant’s movements, if needed.
Significantly, the Ohio Supreme Court split in that case along the now-familiar lines of its redistricting rulings, with Chief Justice Maureen O’Connor, a Republican, siding with the court’s three Democrats, and the court’s three other Republicans dissenting -- baldly, in the case of Justice R. Pat DeWine, who wrote, “Make no mistake: what the majority does today will make Ohio communities less safe.”
To the contrary, what makes Ohio communities less safe is misleading the public and wrongly enflaming attitudes on cash bail -- where reform is really, truly just about justice for all, so being poor isn’t an automatic ticket to jail.
This constitutional amendment should not make it to the Nov. 8 ballot, but if it does, Ohio voters should, to recast a phrase from Shakespeare’s “MacBeth,” resoundingly say: “Hold, enough!”
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