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Ohio Issue 1, Determining Bail Amount Based on Public Safety Amendment (2022)

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Ohio Issue 1
Flag of Ohio.png
Election date
November 8, 2022
Topic
Civil and criminal trials
Status
Approveda Approved
Type
Constitutional amendment		Origin
State legislature

Ohio Issue 1, the Determining Bail Amount Based on Public Safety Amendment, appeared on the ballot in Ohio as a legislatively referred constitutional amendment on November 8, 2022. The measure was approved.

A "yes" vote supported amending the Ohio Constitution to require courts to consider factors such as public safety, the seriousness of the offense, a person's criminal record, and a person's likelihood of returning to court when setting the amount of bail.

A "no" vote opposed amending the Ohio Constitution to require courts to consider factors such as public safety, the seriousness of the offense, a person's criminal record, and a person's likelihood of returning to court when setting the amount of bail.

Election results

Ohio Issue 1

Result Votes Percentage

Approved Yes

3,107,629 77.50%
No 901,997 22.50%
Results are officially certified.
Source

Overview

What does the amendment change about bail in Ohio?

See also: Text of measure

Issue 1 eliminates the requirements that bail amounts and conditions are established pursuant to Article IV, Section 5b, which requires the Supreme Court to prescribe the rules and practices of the state courts. As of 2022, the Supreme Court had the authority to set the rules for trial courts, according to the constitution. Instead, the measure requires courts to use factors such as "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" when setting bail amounts and conditions.[1]

What were the bail laws in Ohio in 2022?

See also: Bail law in Ohio

Article I, Section 9 of the Ohio Constitution says that bail is not granted to a person who commits a capital offense "where the proof is evident or the presumption great", or to a person who is charged with a felony "where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community." This section also states that excessive bail and excessive fines shall not be imposed.[2]

A section in the Ohio Revised Code also states that bail “shall be fixed with consideration of the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of the defendant appearing at the trial of the case”, and that a judge can deny bail if the defendant poses a risk to the community.[3]

What were the arguments for and against the measure?

See also: Support and Opposition

Ohio Attorney General Dave Yost (R), who supported the amendment, said “the presumption of innocence in court does not equal, it is not the same as pretending that a career criminal poses no threat on the street.”[4] State Sen. Theresa Gavarone (R-2) argued that the amendment is about public safety, and it’s something all Ohioans can support.[5]

In opposition to the amendment, State Sen. Cecil Thomas (D-9) argued that prosecutors can already keep dangerous suspects in jail, and a judge can also decide to hold a defendant without bail.[6] The ACLU also opposes the measure. "These new efforts are unnecessary and deeply misguided. The true solution to reforming Ohio’s broken cash bail system is by advancing existing legislation, SB 182, a bipartisan bill that will enhance public safety, end wealth-based detention, and keep communities together," the ACLU said.[7]

How did this amendment get on the ballot?

See also: Path to the ballot

In Ohio, a legislatively referred constitutional amendment needs a 60 percent vote in each legislative chamber during one legislative session to qualify for the ballot.

The amendment was introduced on March 28, 2022, by Rep. Jeff LaRe (R-77) and Rep. D.J. Swearingen (R-89). On May 25, 2022, the Ohio House of Representatives voted 63-33 in favor of the amendment. The Ohio State Senate then 25-7 in favor of the amendment on June 1, 2022, qualifying it for the 2022 ballot.

Text of measure

Ballot title

The official ballot title was as follows:[1]

“
Issue 1
Proposed Constitutional Amendment
TO REQUIRE COURTS TO CONSIDER FACTORS LIKE PUBLIC SAFETY WHEN SETTING THE AMOUNT OF BAIL
Proposed by Joint Resolution of the General Assembly
To amend Section 9 of Article I of the Constitution of the State of Ohio


A majority yes vote is necessary for the amendment to pass.

The proposed amendment would:

  • Require Ohio courts, when setting the amount of bail, to consider public safety, including the seriousness of the offense, as well as a person's criminal record, the likelihood a person will return to court, and any other factor the Ohio General Assembly may prescribe.
  • Remove the requirement that the procedures for establishing the amount and conditions of bail be determined by the Supreme Court of Ohio.

If passed, the amendment will be effective immediately.[8]

”

Constitutional changes

See also: Article I, Ohio Constitution

The ballot measure amended Section 9, Article I of the Ohio Constitution. The following underlined text was added and struck-through text was deleted:[9]

Text of Section 9: Bail

All persons shall be bailable by sufficient sureties, except for a person who is charged with a capital offense where the proof is evident or the presumption great and except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physical harm to any person or to the community. Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted. 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 General Assembly shall fix by law standards to determine whether a person who is charged with a felony where the proof is evident or the presumption great poses a substantial risk of serious physical harm to any person or to the community. Procedures for establishing the amount and conditions of bail shall be established pursuant to Article IV, Section 5(b) of the Constitution of the State of Ohio.[8]

Readability score

See also: Ballot measure readability scores, 2022

Using the Flesch-Kincaid Grade Level (FKGL) and Flesch Reading Ease (FRE) formulas, Ballotpedia scored the readability of the ballot title for this measure. Readability scores are designed to indicate the reading difficulty of text. The Flesch-Kincaid formulas account for the number of words, syllables, and sentences in a text; they do not account for the difficulty of the ideas in the text. The state legislature wrote the ballot language for this measure.

The FKGL for the ballot title is grade level 11, and the FRE is 39. The word count for the ballot title is 130.


Support

The Coalition for a Safer Ohio was the campaign registered in support of Issue 1.[10]

Supporters

Officials

Candidates

Arguments

  • Ohio Attorney General Dave Yost (R): “The presumption of innocence in court does not equal, it is not the same as pretending that a career criminal poses no threat on the street.”
  • State Sen. Theresa Gavarone (R-2): “Ohioans care about public safety, and I have no doubt that they will overwhelmingly support this amendment.”

Opposition

Opponents

Officials

Organizations

  • ACLU of Ohio
  • Ohio Families Unite for Political Action and Change
  • Ohio Organizing Collaborative
  • Policy Matters Ohio
  • The Bail Project
  • The Buckeye Institute

Arguments

  • Robert Alt, president and CEO of Buckeye Institute: “House Joint Resolution 2 not only fails to protect the public, but it actually promotes absurd results. By striking from the Ohio Constitution the ability of the Ohio Supreme Court to establish rules for establishing the amounts and conditions of bail, House Joint Resolution 2 undoes recent changes to bail rules, and thereby excises ANY ability to pay requirement from bail determinations, including from proceedings setting bail for low-level, non-violent, misdemeanant offenders. Ohio would be left with a system in which impecunious individuals with no criminal records, who are accused of low-level, non-violent offenses, and who pose no threat to their communities will languish in jail, utilizing scarce space and resources; meanwhile dangerous, violent offenders will be permitted to buy their way out of jail and prey on the community at large or specific victims.”
  • ACLU of Ohio: “These new efforts are unnecessary and deeply misguided. The true solution to reforming Ohio’s broken cash bail system is by advancing existing legislation, SB 182, a bipartisan bill that will enhance public safety, end wealth-based detention, and keep communities together.”
  • State Sen. Cecil Thomas (D-9): “Good prosecutors in Ohio already know how to keep dangerous suspects in jail pending trial. They request a detention hearing and present evidence about the risk to public safety. This ensures that before denying a person who is still considered innocent their freedom, due process rights must be respected and enforced. A judge can also decide to hold a defendant without bail.”
  • Mike Daugherty, judge of the Clinton County Municipal Court: "The Constitution gives the Supreme Court the authority to set the rules for trial courts. This amendment would take away that authority by deleting a whole sentence of Article 1, Section 9 ... If we are to remain a free society, and if Ohio is to remain a good place to live, we cannot let one branch of government take over. The three branches must have separate powers to keep them accountable to us — the people."


Campaign finance

See also: Campaign finance requirements for Ohio ballot measures
The campaign finance information on this page reflects the most recent scheduled reports that Ballotpedia has processed, which covered through December 31, 2022.


The Coalition for a Safer Ohio was the campaign registered in support of Issue 1. The campaign reported $465,601 in contributions.[11]

Ballotpedia did not identify committees registered in opposition to the ballot initiative. If you are aware of any committees, please forward the information to editor@ballotpedia.org.[12]

Cash Contributions In-Kind Contributions Total Contributions Cash Expenditures Total Expenditures
Support $465,601.99 $0.00 $465,601.99 $468,092.99 $468,092.99
Oppose $0.00 $0.00 $0.00 $0.00 $0.00
Total $465,601.99 $0.00 $0.00 $468,092.99 $468,092.99

Support

The following table includes contribution and expenditure totals for the committees in support of the measure.[12]

Committees in support of Issue 1
Committee Cash Contributions In-Kind Contributions Total Contributions Cash Expenditures Total Expenditures
Coalition for a Safer Ohio $465,601.99 $0.00 $465,601.99 $468,092.99 $468,092.99
Total $465,601.99 $0.00 $465,601.99 $468,092.99 $468,092.99

Donors

The following were the top donors to the committee.[12]

Donor Cash Contributions In-Kind Contributions Total Contributions
Ohio Chamber of Commerce $100,000.00 $0.00 $100,000.00
Geraldine Warner $50,000.00 $0.00 $50,000.00
Minuteman Inc $50,000.00 $0.00 $50,000.00
Southern Ohio Holding Org LLC $50,000.00 $0.00 $50,000.00
Western & Southern Life Ins Co. $50,000.00 $0.00 $50,000.00

Media editorials

See also: 2022 ballot measure media endorsements

Support

You can share campaign information or arguments, along with source links for this information, at editor@ballotpedia.org.


Opposition

The following media editorial boards published an editorial opposing the ballot measure:

  • The Cincinnati Enquirer Editorial Board: "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."
  • Cleveland.com Editorial Board: "Issue 1 is aimed not just at making safety a consideration for cash bail (even though a really dangerous suspect should never be considered for bail), but also at removing the Ohio Supreme Court from oversight of bail rules, effectively giving that power exclusively to lawmakers. That’s a fraught and hazardous move that will subject bail rules (and, potentially, other criminal justice reforms) to how the political winds blow, not to the “judicial” process of committee study and consultation under Ohio Supreme Court auspices."


Background

DuBose v. McGuffey

The proposed constitutional amendment followed a ruling by the Ohio Supreme Court, which ruled that a $1.5 million bond for a man who fatally shot another man during an alleged robbery was too high.

Justin DuBose was one of three men charged in the July 2020 killing of Shawn Green during an alleged robbery in Hamilton County. DuBose was arrested in Las Vegas, Nevada. On November 5, 2020, DuBose’s attorney requested a bail based on DuBose’s limited financial means and lack of felony record. The court set the bail amount at $1.5 million.[13]

On January 26, 2021, DuBose filed for a bail reduction in the Hamilton County Court of Common Pleas. The court reduced the bail to $500,000, but later restored the initial bail amount because the court had failed to notify the victim’s family of the bail hearing, as required by law. DuBose filed a second motion to reduce bail, which the court denied, and on September 22, DuBose filed a petition of habeas corpus. The court of appeals held that the $1.5 million bond was excessive, and reduced the bail to $500,000. The state of Ohio appealed.[14]

On January 12, 2022, the Ohio Supreme Court voted 4-3 to uphold a lower court decision that lowered the bond to $500,000, concluding that the $1.5 million bail amount was unconstitutionally excessive. Ohio Supreme Court Justice Michael P. Donnelly, who concurred with the ruling, stated that the "issue is that the amount set by the trial court was clearly calculated to be at a level that DuBose cannot possibly afford to pay," and that "trial court has the power to order that such defendants be held without bail, but as clearly explained in the majority opinion, the way to do that is to follow the procedure in R.C. 2937.222, not to set a bail amount so high that the defendant cannot afford it."[14]

One of the three dissenting judges, Justice Pat DeWine, said that the decision of the majority “undermines the safety of our communities.”[14]

2022 bail law in Ohio

Section 9, Article I of the Ohio Constitution granted courts the ability to determine the type, amount, and conditions of bail; however, the Constitution prohibited excessive bail or excessive fines.

The Constitution triggered automatic detention without bail in three instances: to a person charged with a capital offense “where the proof is evident or the presumption great”, to a person who is charged with a felony “where the proof is evident or the presumption great”, and to where a person “poses a substantial risk of serious physical harm to any person or to the community.”

In Section 2937.23 of the Ohio Revised Code, bail “shall be fixed with consideration of the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of the defendant appearing at the trial of the case.”[15] Section 2937.222 of the Ohio Revised Code also allowed a judge to deny bail when a judge finds that the person charged with a crime poses a substantial risk to the community, and a judge was allowed to consider "the nature and circumstances of the offense charged", the "history and characteristics of the accused", including criminal history and past conduct, and "the nature and seriousness of the danger to any person or the community that would be posed by the person's release."[16]

Rule 46 of the Ohio Rules of Criminal Procedure said that bail conditions should take into account whether a defendant will appear in court, and whether a defendant puts the safety of the community at risk. The rule said that “the court shall release the defendant on the least restrictive conditions that, in the discretion of the court, will reasonably assure the defendant's appearance in court, the protection or safety of any person or the community, and that the defendant will not obstruct the criminal justice process." This section also sais that the financial conditions of bail should be set based on the risk of a non-appearance by the defendant, and the seriousness of the crime, but that bail should be least costly to the defendant. The rule read “If the court orders financial conditions of release, those financial conditions shall be related to the defendant's risk of non-appearance, the seriousness of the offense, and the previous criminal record of the defendant. Any financial conditions shall be in an amount and type which are least costly to the defendant while also sufficient to reasonably assure the defendant's future appearance in court.” [17]

History of bail in the United States

In 1789, the first United States Congress enacted the Judiciary Act of 1789, which established the federal court system. A section of the act said that “upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death.”[18]

The Eighth Amendment of the United States Constitution reads “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Amendment was adopted with the rest of the Bill of Rights in 1791. Prior to the writing of the Bill of Rights in the Constitution, Virginia and Pennsylvania both prohibited excessive bail in their state constitutions. Section 9 of Virginia’s 1776 Constitution said “excessive bail ought not to be required”, while Section 29 of the Pennsylvania Constitution of 1776 said “excessive bail shall not be exacted for bailable offenses. And all fines shall be moderate.”[19]

The Federal Bail Reform Act of 1966, which the United States Congress enacted in 1966, revised bail policy for federal criminal courts, saying that “all persons, regardless of their financial status, shall not needlessly be detained pending their appearance to answer charges, to testify, or pending appeal, when detention serves neither the ends of justice nor the public interest.” The act also establishes that a person can be detained if there is a risk of flight or danger.[20]

In 1984, Congress repealed the Bail Reform Act of 1966 by passing the Bail Reform Act of 1984. The Bail Reform Act of 1984, which "authorizes a judicial officer to consider the safety of any person or the community when making a pretrial release determination."[21]

In the United States v. Salerno Supreme Court decision in 1987, the Bail Act Reform of 1984 was upheld and determined to be constitutional, permitting federal courts to arrest and detain an individual who was deemed a danger to society. The Bail Reform Act of 1984 was not found to violate the Fifth Amendment’s due process clause, nor the Eighth Amendment, which prohibits excessive bail.[22]

Path to the ballot

See also: Amending the Ohio Constitution

In Ohio, a 60 percent vote in each legislative chamber during one legislative session is required to refer a legislatively referred constitutional amendment to the ballot. That amounts to a minimum of 60 votes in the Ohio House of Representatives and 20 votes in the Ohio State Senate, assuming no vacancies. Amendments do not require a governor's signature to be referred to the ballot.

The amendment was introduced separately in both the Ohio House of Representatives and the Ohio State Senate. The state House introduced the amendment as House Joint Resolution 2 (HJ2) on March 28, 2022. The state Senate introduced the amendment as Senate Joint Resolution 5 (SJR5) on March 29, 2022. On May 25, both the state House and the state Senate passed their respective amendments. The state House passed HJR2 with a vote of 63-33, while the state Senate passed SJR5 with a vote of 24-6. On June 1, the state Senate adopted HJR2 with a 25-7 vote, placing it on the ballot.[23]

Vote in the Ohio House of Representatives
May 25, 2022
Requirement: Three-fifths (60 percent) vote of all members in each chamber
Number of yes votes required: 59  Approveda
YesNoNot voting
Total63330
Total percent63.63%33.33%0.00%
Democrat0330
Republican6300
Vote in the Ohio State Senate
June 1, 2022
Requirement: Three-fifths (60 percent) vote of all members in each chamber
Number of yes votes required: 19  Approveda
YesNoNot voting
Total2570
Total percent78%22%0%
Democrat070
Republican2500

How to cast a vote

See also: Voting in Ohio

See below to learn more about current voter registration rules, identification requirements, and poll times in Ohio.

How to vote in Ohio


See also

External links

Footnotes

  1. ↑ 1.0 1.1 Ohio Secretary of State, "Issue 1," accessed Aug 30, 2022
  2. ↑ The Ohio Legislature, "Ohio Constitution," accessed Sep 27, 2022
  3. ↑ Ohio Laws & Administrative Rules, "Section 2937.23," accessed Sep 27, 2022
  4. ↑ WKSU.org, "Ohio Attorney General Dave Yost calls for constitutional amendment to allow for higher bail," accessed Sep 27, 2022
  5. ↑ US News & World Report, "Proposed Constitutional Amendment on Bail Advances in Ohio," May 25, 2022
  6. ↑ WSAZ.com, "Ohio bail amendment debate heats up as lawmakers roast Deters for ‘fear-mongering’," accessed Sep 27, 2022
  7. ↑ ACLU, "STOP HJR 2 - BAD BAIL BILL," accessed Sep 27, 2022
  8. ↑ 8.0 8.1 8.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source. Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content Cite error: Invalid <ref> tag; name "quotedisclaimer" defined multiple times with different content
  9. ↑ The Ohio Legislature, "Am. S. J. R. No. 5," accessed June 12, 2022
  10. ↑ Coalition for a Safer Ohio, "Homepage," accessed Oct 27, 2022
  11. ↑ Ohio Secretary of State, "Report Filing Details," accessed Oct 27, 2022
  12. ↑ 12.0 12.1 12.2 Ohio Secretary of State, "Campaign Finance," accessed August 3, 2022
  13. ↑ AP News, "Ohio justices spar over reduction of murder suspect’s bond," January 12, 2022
  14. ↑ 14.0 14.1 14.2 Ohio Supreme Court, "DuBose v. McGuffey (Slip Opinion)," accessed June 14, 2022
  15. ↑ Ohio Revised Code, "Section 2937.23," accessed June 15, 2022
  16. ↑ Ohio Revised Code, "Section 2937.222," accessed June 15, 2022
  17. ↑ Casetext.com, "Rule 46," accessed June 29, 2022
  18. ↑ National Archives, "Federal Judiciary Act (1789)," accessed June 29, 2022
  19. ↑ Justia US Law, "Excessive Bail," accessed Sep 27, 2022
  20. ↑ U.S. Code, "Public Law 89-469," accessed June 29, 2022
  21. ↑ Congress.gov, "H.R.5865 - Bail Reform Act of 1984," accessed July 1, 2022
  22. ↑ Oyez, "United States v. Salerno," accessed June 29, 2022
  23. ↑ The Ohio Legislature, "House Joint Resolution 2," accessed May 27, 2022
  24. ↑ Ohio Secretary of State, “Election Day Voting,” accessed April 12, 2023
  25. ↑ Ohio Secretary of State, “Voter Eligibility & Residency Requirements,” accessed April 12, 2023
  26. ↑ Ohio Secretary of State, “Register to Vote and Update Your Registration,” accessed April 6, 2023
  27. ↑ Democracy Docket, “Ohio Governor Signs Strict Photo ID Bill Into Law,” January 6, 2023
  28. ↑ 28.0 28.1 28.2 NCSL, "State Profiles: Elections," accessed August 7, 2024
  29. ↑ Ohio Secretary of State, "Voter Registration and Information Update Form," accessed November 2, 2024
  30. ↑ Under federal law, the national mail voter registration application (a version of which is in use in all states with voter registration systems) requires applicants to indicate that they are U.S. citizens in order to complete an application to vote in state or federal elections, but does not require voters to provide documentary proof of citizenship. According to the U.S. Department of Justice, the application "may require only the minimum amount of information necessary to prevent duplicate voter registrations and permit State officials both to determine the eligibility of the applicant to vote and to administer the voting process."
  31. ↑ Ohio Secretary of State, "Identification requirements," accessed Aprl 6, 2023
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