COLUMBUS, Ohio — Issue 1 on Ohio's 2022 general election ballot will allow voters to determine 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 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.
"There are judges who say that after this ruling that their hands are tied and they can't consider public safety," Mike Weinman with the Fraternal Order of Police of Ohio said. "So what this does is let them know that, yes, you can."
Weinman said the proposed amendment will keep dangerous criminals off the street, but Niki Clum with the Office of the Ohio Public Defender argued that isn’t true.
"Issue 1 allows courts to set ridiculously high cash bail amounts and hopes that defendants can't pay it," she said. "It actually makes us less safe because what actually makes Ohioans more safe is individual determination."
Individual determination is when courts look at a specific case and have the court set conditions of bail that are relevant to that person, she said.
"In some times, the court will actually need to have what's called a pretrial detention hearing because some people are dangerous and they should be in jail pretrial," Clum added.
Issue 1 stops that individualized determination and just substitutes money instead, she said.
State law already allows judges to consider public safety when setting bail. What this amendment would really do is strip restrictions on excessive bail, which Clum said could lead to a two-tiered justice system.
"There is justice and there is liberty for wealthy people, but there's not for Ohioans who do not have as much money," she added.
She and other opponents like the ACLU and Policy Matters Ohio believe this promotes the theory “guilty until proven wealthy.” Conservative think-tank the Buckeye Institute also shared the same concerns back when they testified against Issue 1 when it was still a joint resolution in the House.
Weinman and supporters like the Ohio Prosecuting Attorneys Association and bail bondsmen say repeat offenders who have already shown to be a threat don’t deserve to be out terrorizing victims.
"Unfortunately, a lot of those times [criminals] do go back because they want to intimidate the complainant, the person that they've abused and tried to stop them from going forward and drop the charges and things like that," he said.
Domestic abuse cases are stressful for police because while they are filling out the paperwork, the alleged abuser goes back to the home before they are finished writing.
"They need to be held accountable," Weinman said. "Do you want someone who was just shot and killed, the man walking down the street in your neighborhood?"
Domestic abusers are a problem, but having excessive bail isn't the answer, Clum said.
"You have a domestic violence case where the person is a doctor or a lawyer — they have a lot of means, but they are dangerous to their spouse that they have abused," she said. "But they just pay their cash bail because this individualized determination was never made. The court set a cash bail that they hope they couldn't pay, but oops, they can."
RELATED: Ohio lawmakers argue over conflicting bail legislation
Other concerns
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.
The most worrying part about that is the Legislature would get to take over those restrictions, she added.
"The [lawmakers] aren't experts in bail procedures," she said. "But this constitutional amendment would take the power away from the people that are the experts and give it to the Ohio Legislature."
If that was to happen, Ohio wouldn't have the current procedures in place, and since the lawmakers tend to move slowly on issues, it's possible nothing gets done during lame duck.
Weinman thinks it 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.
By voting yes on the proposal, Weinman said you will support allowing judges to set higher bail and give more autonomy to lower courts and the General Assembly.
By voting no on it, Clum said you will oppose unconstitutional bail and support the current system.
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