Commentary: Ohio Issue 1 ‘Strikes a Balance Between the Competing Interests Behind the Granting of Bail’

by Judge Matt Lynch


On November 8, 2022, Ohio voters will have the opportunity to amend the Ohio Constitution in a way that supports and promotes public safety. Issue 1, the “Ohio Determining Bail Amount Based on Public Safety Amendment” will add the following language to the Constitution: “When determining the amount of bail, the court shall consider public safety, including the seriousness of the offense, and a person’s criminal record, the likelihood a person will return to court, and any other factor the general assembly may prescribe.” The proposed amendment strikes a balance between the competing interests behind the granting of bail: preserving the accused’s presumption of innocence against the community’s need for public safety.

In determining the amount of bail, it should be obvious that public safety is a necessary consideration. In fact, it is already the law of Ohio that, when granting bail, a judge must release the accused “on the least restrictive conditions that … will reasonably assure the defendant’s appearance in court” and “the protection or safety of any person or the community.” One might fairly ask why a constitutional amendment is even necessary if the law already requires judges to consider public safety when granting bail.

That question was answered by four justices of Ohio’s Supreme Court, Republican Maureen O’Connor, and Democrats Melody Stewart, Jennifer Brunner, and Michael Donnelly. In a case decided this January, DuBose v. McGuffrey, these justices formed the majority when considering whether DuBose, who stands accused of aggravated murder in the course of a robbery, was entitled to have his bail bond reduced from $1,500,000 to $500,000. In setting the bail bond at $1,500,000, the Hamilton County judge hearing the case noted the seriousness of the charges, DuBose’s use of a fake identity at the time of his arrest in Las Vegas, and public safety. The judge stated that he “placed a lot of weight on” statements by the victim’s family and “the sentiment and fear that the family member had.” However, the court of appeals in Cincinnati disagreed and lowered the bail bond to $500,000, stating that the $1,500,000 bail bond was so high that it “was effectively a denial of bail.”

The Ohio Supreme Court then had to decide whether the trial judge or the court of appeals was correct and the majority chose the lower amount of bail. In doing so, the court ruled that “public safety” could be considered in establishing the conditions of bail such as electronic monitoring or no contact with the victim’s family, but “public safety is not a consideration with respect to the financial considerations of bail.” In other words, when considering the amount of bail bond that must be posted – public safety is not a valid consideration. Republican Justices Sharon Kennedy, Pat Fisher and Pat Dewine dissented. Dissenting Justice Dewine issued a dire warning to the people of Ohio saying, “Make no mistake: what the majority does today will make Ohio communities less safe.”

The proposed Amendment is the proper and needed response to the DuBose decision. The Supreme Court did not say that public safety should not be a consideration in setting the terms of bail, but only that the law as written limited the consideration of public safety to the non-financial conditions of bail. The proposed amendment restores what should be obvious. As Ohio’s Attorney General Dave Yost observed, “the presumption of innocence in court … is not the same as pretending that a career criminal poses no threat on the street.”

Across the country many jurisdictions have adopted “bail reform” in a stated attempt to bring “equity” to the criminal justice system. In some jurisdictions these reforms have even led to implementation of a policy of “no cash bail”. Here in Ohio the Supreme Court majority effectively eliminated the use of cash bail to protect the public. A “YES” vote by the citizens of Ohio on Issue 1 would re-establish the authority of local judges to set cash bail as they see fit, including in order to protect the community from violent criminals.

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Judge Matt Lynch, 11th District Court of Appeals for the State of Ohio.
Photo “Matt Lynch” by Matt Lynch. 




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