The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
The cash bail amendment last year brought by Ohio lawmakers and approved in November directing judges to weigh public safety when setting cash bail inadvertently undermined the state’s entire bail system.
Effectively every legal interest — prosecutors, defense attorneys, judges, the Ohio Bar Association, sheriffs, and the ACLU — agree on the proper course of action to correct the situation, and lawmakers seem ready to proceed quickly as they face a July 1 deadline to maintain the system, but the episode highlights the dangers of unintended consequences after bipartisan bail reform efforts in Ohio’s last General Assembly were abandoned in favor of the amendment proposal.
Cash bail & public safety
This time last year, lawmakers were getting ready to head out on the campaign trail. But on their way out the door, they fast-tracked an amendment for the November ballot. The proposal’s goal was straightforward. Lawmakers wanted to overturn an Ohio Supreme Court decision that public safety could be considered in setting any bail condition besides cash.
Some analysts viewed the effort as a move by Republican lawmakers to bring a ‘tough on crime’ proposal to bolster voter turnout, but the effort was complicated.
A bipartisan team of lawmakers had spent more than a year hashing out a broad overhaul of Ohio’s bail system. The rush toward cash bail undermined that effort. Still, the reformers got one last minute concession. After laying out several specific factors judges must consider, the resolution added, “and any other factor the general assembly may prescribe.”
Reformers saw that as a potential on-ramp for their broader changes once they built a large enough coalition. But it also put determinations about the state’s bail system squarely in the hands of state lawmakers. To avoid any confusion, the amendment excised a line allowing the courts to set bail procedures through internal rules.
And that’s where things get interesting.
Criminal Rule 46
Right now, Ohio’s courts set bail conditions based on the provisions in Criminal Rule 46. But Supreme Court Chief Justice Sharon Kennedy explained that authority evaporated when voters approved the cash bail amendment.
“The vote of Ohioans in striking our rulemaking power under Article IV, Section 5, basically left all conditions of setting bond to the General Assembly,” she explained. “So the justices voted 7-0 to repeal Criminal Rule 46 in respect of that vote.”
In a letter to Senate President Matt Huffman, Kennedy and several legal interests warned the repeal takes effect July 1.
“Prompt action – that is to say, enactment of a statute containing Criminal Rule 46 by July 1 – is paramount,” the letter read.
Last Wednesday, Sen. Nathan Manning, R-North Ridgeville, got the ball rolling. Kennedy showed up, as well as representatives from the Ohio judicial conference. The state bar association, prosecutors, defense attorneys, and sheriffs showed up too.
Former state supreme court justice Paul Pfeifer, speaking on behalf the judicial conference, explained the nature of the bill. The text is the entirety of Rule 46, with one important tweak when it comes to financial conditions of bail.
“The words ‘public safety’ were not present in the rule,” he explained. “And that led to the DuBose decision that was so controversial and prompted the constitutional amendment, so that is the one addition.”
The Ohio Association of Criminal Defense Lawyers doesn’t always find itself in agreement with prosecutors. OACDL public policy chair Blaise Katter explained the exception.
“For our practitioners, having readily available standards to apply, to argue to guide the discretion of the judges, we felt is very important,” he said “We also feel that the status quo on the ground right now is working.”
What comes next?
Manning, who chairs the Senate Judiciary Committee, is co-sponsoring the measure with ranking member Sen. Paula Hicks-Hudson, D-Toledo. In her testimony, Hicks-Hudson made it clear that while the measure is important, it shouldn’t be the final word.
“The bill does not resolve all the questions surrounding bail,” she explained, “but it does provide for some types of consistency, and it is urgent that we pass this legislation.”
The ACLU of Ohio, which also supports codifying Rule 46, was even more explicit. In a statement, policy counsel Patrick Higgins, explained they view the move as a “stopgap measure.”
“We remain committed to improving pretrial fairness and liberty for all Ohioans, which requires more than the status quo,” he said. “It’s for that reason that we will support Senate Bill 122 while continuing our push for evidence-based policy changes that eliminate wealth-based detention and honor the presumption of innocence.”
After the committee, Manning acknowledged a fact some of his colleagues have spent the better part of six months demonstrating: it’s very hard to amend the constitution. That’s a big reason lawmakers liked leaving the door open to further legislative changes. Speaking only for himself, Manning said he hadn’t expected last year’s amendment to necessitate the repeal of Rule 46.
He certainly didn’t close the door on bail reform, but he can hear the clock ticking. He noted there’s a study committee working on recommendations, but it wouldn’t make sense to squeeze broader changes into his bill.
“This is a time crunch, we need to get this passed very quickly,” he said. “The cleanest way to do this is just basically codify Rule 46.”
Manning is planning to advance the measure rapidly. He suggested the committee could vote on the proposal as soon as this week.