The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
The Ohio House and Senate approved a measure to send a cash bail proposal to the ballot. The resolution, which orders judges to consider public safety when setting the monetary provisions of bail, will come before voters in November as a proposed constitutional amendment.
Meanwhile, opponents lined up against a different, wide-ranging bail reform measure in the House criminal justice committee.
That reform measure has been the subject of negotiations for more than a year, and lawmakers kicked off the hearing with a wave of new amendments making tweaks to pre-empt the objections they expected to hear. In some cases, that went pretty well. Lisa DeGeeter of the Ohio Domestic Violence Network, for instance, noted those changes crossed two of their three complaints off the list.
But others remained steadfast in their opposition.
The proposal would de-emphasize cash bail as a way for defendants to secure their release ahead of trial, and unsurprisingly, people in the bail industry pushed back on the idea. Woody Fox, who owns a bail agency of the same name, argued bail agents play an important but “unseen” role in the criminal justice system.
“We provide an option to ensure these charged with crimes will return to families and employment,” Fox argued. “We also ensure that victims and accusers can face the defendants in court, and agents have financial skin in the game to ensure criminal justice process can play out. All this is done at no additional cost and the taxpayers.”
Because bail agents are on the hook for the bond amount if a defendant doesn’t show up, he argued, they have a vested interest in making sure those defendants appear. Fox contends he and other bail agents would be “effectively eliminated” from the criminal justice system if the legislation passes. Another bail agent argued provisions capping bail at 25% of monthly income would make it difficult to attract surety companies to underwrite bail contracts.
Committee members also heard opposition from prosecutors and law enforcement. Speaking for the latter, Warren County Sheriff Larry Sims argued the measure amounts to “automatic release” for a wide array of offenses.
“I just ask all of you, if you would, to consider what those additional unintended consequences are when they come back in and they’re committing crimes in those same neighborhoods,” Sims argued. “So to set an automatic release, I think it’s careless.”
What the legislation actually does is direct the judge to presume a defendant should be released without putting down cash — commonly known as release on personal recognizance — unless the prosecution can prove more restrictive conditions are necessary. This kind of rebuttable presumption is common in court rooms. The idea is central to Ohio’s so-called stand your ground law, for instance, and more generally, the idea of defendants being innocent until proven guilty is a core tenet of the American justice system.
Speaking on behalf of the Ohio Prosecuting Attorneys Association, Gallia County Prosecutor Jason Holdren, made a similar point but from a different direction. He argued the measure’s ceiling for cash bail invites fraud.
“Let’s just call it what it is,” he said, “No bail.”
Despite an amendment nearly doubling the cap if prosecutors can show a defendant lied about their income, Holdren argued it’s not a good enough deterrent.
“In Gallia County,” he said, “Just a guy, again, in the trenches that sees this stuff everyday, there’s rarely a number on an indigency affidavit other than zero.”
Many of his arguments took this practical approach. The measure’s emphasis on pre-trial detention, which is already allowed under Ohio law, instead of cash bail means more hearings, which in turn means more expense. Those hearings, he warned, could also be a venue for defendants to call victims to the stand or push for discovery ahead of trial. But pressed by the bill’s sponsor, Holdren admitted he’d never pursued one of the pre-trial detention hearings the measure favors.
Despite the opposition, Rep. Bill Seitz, R-Cincinnati, sounded upbeat shortly after the committee hearing. While Seitz is not listed among the bill’s 40-plus co-sponsors from both sides of the aisle, he was the driving force behind the raft of amendments added to the measure Wednesday.
It’s not likely for the bill to gain approval by summer recess, Seitz said, as the constitutional amendment seems likely to do, but he still sees a path forward for the legislation.
“We’re trying to emphasize, as I have emphasized, as the attorney general has emphasized and others, that this works very nicely with the constitutional amendment,” he said before Wednesday’s floor vote approving that measure.
“The two are not incompatible with one another,” he went on. “It’s just very important to get it right, because this bill is over 200 pages long, and anything that big, there’s bound to be some little things that need changed.”