Ohioans to vote on Nov. 8: Should defendants get higher bonds if they are a danger to the public?
This November, Ohio voters will decide whether judges should consider a criminal defendant’s threat to public safety when determining their bail.
In January, the Ohio Supreme Court ruled 4-3 in favor of reducing the bail for Hamilton County murder suspect Justin DuBose, who, along with codefendants, was accused of shooting a man to death during a home invasion robbery in Colerain Township in 2020, according to Attorney General Dave Yost’s office.
In considering whether DuBose’s bail was legal — because he couldn’t afford to pay it — justices determined public safety shouldn’t be a consideration when setting a defendant’s bail amount under criminal court rules.
A Mahoning County judge cited that ruling earlier this year when reducing bail for an aggravated murder suspect in the county.
While Yost, the state’s top lawman, said he thinks many Ohioans would be “shocked” to learn public safety isn’t being considered under criminal court rules, critics of the state’s cash bail system said there are better bail reform alternatives pending in the Legislature.
State statute also allows defendants to be held without bond to protect the public, so long as certain conditions are met.
In Hamilton County
DuBose’s trial court initially set his bail at $1.5 million. Prosecutors argued DuBose endangered the public, based on the seriousness of the offense and his potential for fleeing prosecution. An appeals court lowered that to $500,000, ruling that since DuBose could not afford to pay the high bail, it was “effectively a denial of bail.”
The state’s high court in January upheld DuBose’s bail reduction, determining that under criminal court rules, “public safety is not a consideration with respect to the financial conditions of bail.”
Instead, the majority justices in their opinion said courts should impose other nonfinancial conditions of release on defendants, such as restricting their travel and association, requiring drug and alcohol abuse treatment programs or ordering them against contact with witnesses in the case. Under criminal court rules, those conditions should be the least restrictive possible — just enough to ensure they appear in court.
The appeals court put DuBose on a 24-hour lockdown, including electronic monitoring, and took his passport and ordered him not to have contact with the victim’s family.
In Mahoning County
Mahoning County Common Pleas Judge John Durkin in February cited the high court ruling when agreeing to lower bail for Marquez Thomas of North Glenellen Avenue, who was accused of killing a 42-year-old man and wounding three other people in a shooting on Dec. 27 at a Tyrell Avenue apartment complex, WKBN reported.
Judge Durkin said the $800,000 bond set in Thomas’ case was unconstitutional as it was “in effect an order of detention,” the TV station reported.
It was lowered to $150,000, court records show. He was also to be placed under electronic monitoring and no-contact orders.
Prosecutors later moved to deny Thomas’ bail entirely. That’s allowed under state law to protect the public’s safety, so long as the court finds clear evidence that the defendant likely committed the crime. In Thomas’ case, there’s video evidence in which Thomas is seen committing the crimes, Assistant Prosecutor Nick Brevetta told WKBN.
Judge Durkin sided with prosecutors in May, and today Thomas remains in the Mahoning County jail without bond. He’s due for trial in September, court records show.
The issue up to voters
House Joint Resolution 2, which lawmakers approved weeks ago and will be on the Nov. 8 general election ballot, would amend Article I of the Ohio Constitution to require courts, when determining bail, to “consider public safety, including the seriousness of the offense, and a person’s criminal record, the likelihood a person will return to court” as well as “any other factor” determined by lawmakers.
If voters approve it on Nov. 8, it’ll take effect immediately.
Gina DeGenova, Mahoning County assistant prosecutor, said the county prosecutor’s office has always considered public safety when deciding whether to seek to deny a defendant bail.
“As a general matter, this office always supports measures that ask for input from the voting community, especially when it impacts public safety,” she wrote in an email to Mahoning Matters. “If HJR 2 passes, courts will be required to evaluate public safety when setting bail in each case. … In the event HJR 2 passes, a motion will no longer be required to prompt a court’s consideration of public safety when determining whether or not to deny bail.”
Most of the Valley’s Republican state lawmakers signed on to the bill as co-sponsors, including Sen. Sandra O’Brien of Rome, R-32nd, and Reps. Al Cutrona of Canfield, R-59th; Mike Ginter of Salem, R-5th; and Mike Loychik of Bazetta, R-63rd.
“... To ensure our citizens are safe our judges must take into account the public safety of the community when considering letting a defendant out on bond,” Cutrona said in a statement earlier this month.
Both chambers adopted the measure by early June, voting entirely along party lines. Constitutional amendments proposed by lawmakers must be approved by a three-fifths majority vote. They are then put before state voters.
“Today’s vote by the General Assembly returns the power back to all Ohioans who will now decide if the safety of the public should be considered by judges when determining the monetary amount of bail,” Yost said in a statement after the resolution’s passage in the House.
“I expect many Ohioans will be shocked to learn that judges are not currently permitted to consider the threat an offender poses to a community when setting financial conditions of bail,” he said.
Critics of the state’s cash bail system, however, said it causes many Ohio defendants to remain in jail simply because they can’t afford to pay.
“This is the essence of wealth-based detention, and it does nothing to promote public safety. But it does harm families, communities, and the fabric of Ohio,” wrote Jocelyn Rosnick, policy director for the American Civil Liberties Union of Ohio, in a March op-ed for the Ohio Capital Journal.
“Long wait times in jail create long-term, devastating consequences even for individuals later found innocent. Our criminal legal system shouldn’t be set up to punish and create instability for any of us, but certainly not for people who are legally innocent and awaiting sentencing. Unfortunately, that’s exactly how our pretrial system currently operates.”
ACLU backs two bail reform bills currently pending in the Legislature: House Bill 315 and Senate Bill 182, which would give defendants who don’t raise “considerable public safety concerns” and aren’t expected to skip court a path to release after 24 hours, Rosnick wrote. They would also take defendants’ ability to post bail into account.
“The size of one’s wallet should not determine their freedom, especially when we know policies that enforce the vicious cycle of criminalization of poverty harms us all,” Rosnick wrote.
A separate constitutional amendment also up to voters on Nov. 8 would deny noncitizens the right to vote.
This story was originally published June 28, 2022 at 5:00 AM.
