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AG Yost, Republican state lawmakers push for constitutional amendment to change bail rules

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Posted at 6:28 PM, Mar 29, 2022
and last updated 2022-03-29 18:38:08-04

COLUMBUS — State lawmakers from both chambers as well as Attorney General Dave Yost are pushing for a proposed constitutional amendment that would grant local judges the ability to weigh public safety in determining a defendant’s bond. The proposed amendment seeks to effectively go over the heads of the Ohio Supreme Court justices, which narrowly upheld a lower court’s ruling in January, holding that judges shall not use public safety concerns as a factor in determining bail.

Attorney General Yost joined Hamilton County Prosecutor Joe Deters as well as other Republican lawmakers for a press conference held on Tuesday to announce the proposed amendment.

“The bottom line is that the decision by the [Ohio Supreme Court] is a direct threat to public safety and we are here today to fix that,” said State Sen. Theresa Gavarone.

In January, the Ohio Supreme Court narrowly upheld a lower court’s ruling in a case related to the question of whether a Hamilton County murder suspect’s $1.5 million bail was excessive.

Justin DuBose was charged in the July 2020 robbery-turned-shooting death of a man outside of Cincinnati. At a hearing in November 2020, the local judge initially set DuBose’s bail at $1.5 million, which was later reduced to $500,000 at the request of DuBose and his defense attorney. The following day, the judge restored DuBose’s bail at $1.5 million after hearing testimony from the victim’s family.

In his appeal, which was granted by the 1st District Court of Appeals, the lower court ruled DuBose’s bail was excessive and, thus, unconstitutional. Then, in early January of this year, the Ohio Supreme Court upheld the lower court’s ruling that DuBose’s bail was excessive.

A county common pleas judge initially set DuBose’s bail at $1.5 million, citing state law that states judges shall release a defendant on the least restrictive bail conditions that also reasonably assure the defendant will appear in court.

In the state high court’s majority opinion, justices wrote: “public safety, although of the utmost importance, is not a factor relevant to the calculation of the bail amount. The court may not impose excessive bail for the purpose of keeping an accused in jail.”

The state high court’s opinion has “fundamentally changed the practice in Ohio with regards to granting bail,” Yost said.

“Presumption of innocence in court is not the same as pretending that a career criminal poses no threat on the street,” Yost said. “We believe that the interest of the community — the safety of the community — is just as important as a defendant's right to a fair trial and his presumption of innocence. We do not serve one at the expense of the other.”

As introduced, House Joint Resolution 2 would essentially reverse the high court’s decision by constitutionally protecting the judge’s ability to use public safety as a factor in setting bail. The resolution requires passage by a three-fifths majority before it goes to voters in the fall.

Yost and Deters said local trial judges should have the ability to weigh public safety among other factors, including the severity of the crime, whether the defendant is a flight risk, as well as whether the defendant has a criminal history.

“We are saying that, yes, consider the criminal history, the severity of the crime, the individual's ability to flee or return to court, but also consider those hard-working Ohioans and members of the public that deserve a safe community,” said State Rep. D.J. Swearingen.

Cuyahoga County Prosecutor Michael O’Malley declined to comment on the proposed constitutional amendment.