Ohioans to vote on whether judges can consider safety risk to the public when setting bail terms

In July 2020 a number of people entered the home of 22-year-old Shawn Green in Hamilton county in Ohio and, in the course of an apparent attempted robbery, he was shot dead.

Among those later charged in connection with the incident was a man called Justin DuBose, who was indicted on two counts of murder, one of aggravated robbery, and one of aggravated burglary. A court in Ohio set bail of $750,000 (€755,000) on the murder charge and a separate $750,000 bail on the aggravated robbery charge.

It may have seemed like just another violent crime, similar to those that take place all too regularly across the United States.

However, a dispute over the bail conditions went all the way to the Ohio supreme court which, in turn, has now led to moves to change the state constitution.

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In a 4-3 judgment in January in a case known as DuBose versus McGuffey, the court issued a ruling that caused outrage among conservatives, prosecutors and some judges, but was welcomed by civil liberties organisations.

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The court found that public safety was not a consideration with respect to the financial conditions of bail. It said public safety concerns could be addressed by imposing non-financial conditions, such as restrictions on travel and association, completion of alcohol and drug abuse treatment and orders of no contact with witnesses.

Penalised the poor

The court said if the state believed a person posed a danger to the community and must be held without the possibility of release, then it should follow alternative procedures for an order of detention without bail.

Conservatives in Ohio argued that the ruling could restrict the ability of judges and prosecutors to keep dangerous individuals in jail until their case went to trial.

On the other hand, civil liberty groups said the judgment had overturned a legal practice that penalised the poor who could not afford high bail levels, forcing them to spend potentially lengthy periods in prison awaiting a trial.

Republican politicians earlier this year proposed a constitutional amendment that would restore the previous arrangement under which courts could consider public safety when setting bail terms.

The issue will be on the ballot when voters in Ohio go to the polls in early November.

Perhaps predictably, the vote on the proposed amendment has become politicised and enmeshed in the very close contest for a US Senate seat in Ohio between Republican JD Vance and Democrat Tim Ryan.

This week Ryan said he had not made up his mind how he would vote on the proposed constitutional amendment. He was immediately attacked by Vance’s campaign who painted the proposal as representing “common sense”.

In Ohio judges are elected by the people and in advance of polling day in November, some candidates have weighed in on the proposed amendment.

At a Republican canvassing event in Ohio this week The Irish Times met Sharon Kennedy, a sitting judge who is running for the post of chief justice on the Ohio supreme court.

Common sense

She is a former police officer and is backing the constitutional amendment proposal. She forecast it would be passed overwhelmingly.

When the DuBose case reached the supreme court several months ago, she said, four of her colleagues reduced the level of the bail but also went a step further and said the trial judge was wrong in considering public safety when determining the amount.

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“Many Ohioans think it just makes common sense when setting bond for a dangerous offender, trial judges should consider the safety of victims, any other people and the community when factoring the right amount of bond to set,” she said. “At the moment the DuBose [ruling] says all judges can consider is how much they [the accused] can afford and will they come back for trial.”

She said many individuals she arrested as a police officer did not come with a tax return so what their income level was unknown.

The American Civil Liberties Union in Ohio, however, has urged rejection of the proposed amendment. It said the initiative was an “unnecessary, politically motivated attempt to enshrine cash bail into the Ohio constitution under the guise of public safety”.

It said cash bail did not keep people safe and the proposal “only doubles down on the failed status quo, where wealthy individuals can purchase their freedom simply because they have the money to do so”.