Editorial: Ohio can reform cash bail while protecting public safety

At first blush, Ohio Issue 1 appears to be a no-brainer: Court judges should be required to consider public safety when setting bail amounts for criminal defendants. Proponents of the measure on the Nov. 8 ballot want to lock that requirement into our state's constitution. Seems pretty commonsense and simple, right? While this editorial board agrees with the need to protect the public from potentially dangerous individuals, we also recognize the issues underlying this ballot measure are more complex.

The Ohio Supreme Court has exposed an issue worth examining and reforming − bail − but amending the state constitution is not the path to change. That is best left in the hands of policymakers, through research and debate, as part of a larger examination of bail and public safety.

Our three branches of government that provide checks and balances. In this case, a majority of the Supreme Court interpreted a state law − that’s their job. If the Ohio Legislature disagrees, then they should revise the law. Lawmakers have been doing this for years, without the need to lock that law into the Ohio Constitution, where it is difficult to change.

An opposing view:Issue 1 is a common-sense approach to public safety

Prosecutors have said the Ohio Supreme Court opinion in the case of DuBose vs. McGuffey makes it harder for prosecutors to keep dangerous suspects behind bars. But state law and the Ohio Constitution already allow judges to hold people in jail if they pose a risk of physical harm to a person or the community. Prosecutors must prove the danger through no-bond hearings, which they say aren’t an option for cases where they don’t want to tip their hand to the defense or where the hearing would force a victim to relive a traumatic experience. We empathize with that point but don’t think this ballot measure is the best way to resolve that − plus our criminal justice system operates on presumption of innocence until proven guilty.

The entire premise of cash bail is worthy of discussion and debate by lawmakers. Someone’s ability to pay shouldn’t be what determines whether they are held or released before trial. A defendant's threat to themselves or to the public is a good reason for someone to be held pre-trial, but it is inequitable to translate that to higher bail.

For example, let's say two people commit the same crime and are both considered to be a danger to the public if released, and a high bail amount is set by the judge. One person has financial means, and the other doesn’t − which means one person might be able to be released, and the other wouldn’t. Now we have a situation that is hardly just − two people who have done the same thing and pose the same threat see vastly different outcomes.

This is the essence of the Supreme Court's majority opinion in DuBose vs. McGuffey. Chief Justice Maureen O'Connor joined three Democrats on the court in finding that excessive bail is unconstitutional and when setting money bail, judges should only consider whether the defendant is a flight risk − not the seriousness of the crime or public safety concerns. The fact our current system hinges so much on someone's ability to pay their way out of jail seems unjust, and doesn't guarantee the public's safety.

Doubling down on cash bail ignores − and threatens to end − the larger conversation in our state and country about how bail discriminates against poor people and a disproportionate number of people of color. It ignores the fact wealthy (and dangerous) people can make bail and then commit another crime. If the method of denying bail to an accused person is flawed, as prosecutors say, then the Ohio Legislature should focus its attention on expanding that option for more crimes and situations.

Bail reform is one of those rare topics that draws support from conservatives and liberals − certainly Republicans and Democrats can work together on modernizing cash bond while preserving public safety.

For these reasons, we are saying no to Issue 1.

Opinion and Engagement Editor Kevin S. Aldridge writes this on behalf of The Enquirer's editorial board, which includes Editor Beryl Love, Senior News Director of Content Jackie Borchardt and community board members Jackie Congedo and Mack Mariani.