COLUMBUS, Ohio – With the vast majority of ballots counted, Ohio voters overwhelmingly chose to approve a constitutional amendment that would change how the criminal justice system works.
Every statewide race went Republican, and with it voters sided with Republicans on both ballot issues.
The first issue determines whether 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 take into account public safety, a person’s criminal record, the defendant’s likelihood of returning to court, and any other factor determined by the Ohio General Assembly.
In January, a majority of Ohio Supreme Court members upheld an existing state law that prevents the court from setting excessive bail. Bail is considered unconstitutional when the amount is much higher than what is needed to make sure the accused returns for a court date.
The issue was referenced by current OSC Judge and now Judge-elect Pat DeWine in his victory speech Tuesday night.
“I am stunned that four members of the court have decided that justices in Ohio cannot consider public safety,” he said. “I knew then that this was going to be an issue for voters in the fall.”
Pat DeWine, the eldest son of current governor-elect Mike DeWine, was one of the first version’s biggest advocates.
“Voters in this state care deeply about public safety,” he said.
So far, nearly 8 in 10 voters support the amendment.
“Public safety is not a partisan issue, and Ohio voters, Democrats, Republicans and Independents, sent a clear message today that they want policies that put their safety first,” said Lou Tobin of the Ohio Attorneys’ Association.
Nikki Klum, of the Ohio State Attorney General’s office, wasn’t surprised by the vote, because she said it was intentionally confusing to voters.
“The fact of the matter is that the nuance behind it was much more complex, and it was a much longer story to tell,” Klum said.
She said state law already allows judges to consider public safety when setting bail, noting that judges don’t even have to allow bail. She added that what Ohioans had just voted on was in fact allowing for excessive and unconstitutional bail.
“Even though everyone in the courtroom might think you might be a danger, if you had the money, you would get out of this prison,” she said. He added, “Everyone in the courtroom knows you are not dangerous, but if you don’t have the money, you may not get out of this prison waiting for your trial.”
Klum made an assumption. Imagine there is a doctor attacking the house. He was charged with a first-degree misdemeanor and bail was set at $500,000.
Now imagine that there is a mother who cannot afford baby formula, so she steals it. She was arrested and charged with a first-degree misdemeanor. The first problem, Klum said, would make it constitutional for her bail to be exactly the same as a doctor’s.
Because the doctor has money, he’s able to get out, Klum said. Mother can’t.
what happened after that?
The country is in a strange gray area right now, because this amendment is now in effect.
The second part of Issue 1 would remove the requirement that the procedure for determining the amount and terms of bail be determined by the Ohio Supreme Court. Klum said this deprives the Supreme Court of its powers to regulate the work of lower courts.
Ohio now does not have the current standard procedures, and since lawmakers tend to move slowly on issues, it is likely that nothing will be done during the “lame duck” period before those elected take office.
In a previous interview about the case, Mike Weinman, a member of the Fraternal Order of Police, said this wouldn’t be a problem.
“I admit that the language is ambiguous, but it does give the General Assembly some flexibility to mediate if faced with a large group of activist justices who are acting on their own initiative rather than in the spirit of the law and what the people of Ohio want,” he said.
Although the protocols are gone, this does not mean that the system is “free for all”, but it does mean that there will be a lot of confusion for every party in the world of criminal justice.
One way to fix this? Ask lawmakers to pass bipartisan legislation, such as House Bill 315 and accompanying Senate Bill 182, Klum said.
“They actually establish timelines and procedures that determine how quickly a person accused of a crime must be brought before a judge, and timelines if they are going to have a detention hearing,” she said. “The burden of proof is lightened for prosecutors in detention hearings, so it’s really important to get all of this through so our criminal courts know how to act in the future.”
How can federal law come into play?
Although the amount of bail set by an Ohio judge could be legal under the Ohio Constitution, the United States Constitution may consider it unconstitutional.
“We still have to follow the United States Constitution, which still makes excessive bail unconstitutional,” Klum said. “Therefore a $1 million in a misdemeanor of the first degree has a chance of being unconstitutional under the United States Constitution.”
Defendants have the ability to file habeas corpus motions, which is when state prisoners can apply to a federal court for review of their case, which Klum says could increase due to the approval of the first release.
She said this could lead to more lawsuits, more work for prosecutors and public defenders, and may delay justice.
“That’s certainly a concern with respect to the first issue, which is that we’re going to see more and more defendants defy these high cash bail amounts and then disrupt the court system,” she said.
Supporters of the amendment have consistently stated that no one is looking to introduce excessive bail, they just want to give judges more independence in their courts. Weinman told News 5 in a previous interview that over-bailing would be an issue that would be dealt with as soon as it occurred.
“I’m confident that because of what voters did today, we’ll have a Supreme Court in Ohio that does exactly what it’s supposed to do, which is: protect the rule of law, enforce the laws as they are written,” DeWine said. The law is as it is written, make sure everyone is treated equally and fairly under the law.”
To learn more about a bipartisan bill that would address detention based on wealth and would allow the court to make pretrial decisions on the basis of severity, rather than wealth — strengthening the current law — click here.