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Ohio Attorney General Dave Yost calls for constitutional amendment to allow for higher bail

In this Feb. 20, 2020, file photo, Republican Ohio Attorney General Dave Yost speaks in Columbus, Ohio. [Julie Carr Smyth / AP]
photo of dave yost

Ohio Attorney General Dave Yost is throwing his support behind a proposed change to the state constitution that would give local courts more leeway to set high bail amounts.

In a press conference in Columbus Tuesday, Yost said setting a high dollar amount to keep a defendant in jail until trial wouldn’t interfere with the presumption of innocence or the right to a fair trial.

“That’s bedrock American law, that’s our sense of justice and that should never be compromised or diluted,” Yost 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.”

The Ohio Supreme Court has ruled that the constitution, which prohibits excessive bail, requires cash bail amounts be based primarily on a defendant’s likelihood of appearing for trial and should not be set with the goal of keeping a person in jail until trial.

The proposed constitutional amendment in front of the Ohio legislature would ask voters to add the line: “When determining the amount of bail, the court shall consider public safety, a person's criminal record, the likelihood a person will return to court, and the seriousness of a person's offense.”

“Most people don’t realize the type of violent offender we have in some of our urban areas today, the level of violence is quite frightening,” said Hamilton County Prosecutor Joseph Deters.

Deters gave several examples of people out on bail who committed violent crimes. One was a Hamilton County man who was arrested for illegally possessing a weapon. According to Deters, the man posted a $400 bond and then shot a man at a bar in Cincinnati.

The legislature is also considering a bill that would add the same bail considerations to state law.

The proposals were made in response to a recent Ohio Supreme Court ruling, DuBose v. McGuffey, which upheld a reduction in bail from $1.5 million to $500,000 for a Hamilton County man accused of murder.

“In making this statement, we do not minimize the importance of the safety concerns of the victim’s family in this case,” the majority wrote in the DuBose case. “We merely recognize, as did the court of appeals, that under Crim.R. 46(B)(2), public-safety concerns may be addressed by imposing nonfinancial conditions, such as restrictions on travel and association, completion of alcohol and drug abuse treatment, and orders of no contact with witnesses in the case.”

State law lets courts hold defendants without bail, if they are accused of a serious crime and pose a threat to public safety. The opinion in the DuBose case pointed to that option as an alternative to setting a $1.5 million bail.

Yost said Tuesday holding defendants without bail until trial requires that prosecutors meet a higher bar.

“That requires a motion from the state, it requires pretrial investigation to prove up all of those things, and it requires an evidentiary hearing,” Yost said. “Those are things that if they were used commonly in every case would simply bog the calendar down farther.”

Groups, including the ACLU of Ohio, and conservative groups like Arnold Ventures and Americans for Prosperity, have campaigned for bail reform bills introduced last year that would reduce the reliance on cash bail.

Those proposals establish guidelines for judges to take into consideration when setting cash bail amounts, including a defendant’s ability to pay, risk to the community and risk of flight.

According to Jeff Dillon from Americans for Prosperity, officials contradict themselves when they rely on cash bail to protect public safety.

“It’s kind of a false security, where people assume, ‘Oh it’s a high cash bail amount so the person can’t get out,’” Dillon said. “But if you have enough money, you can commit murder and still get out of jail.”

Dillon said the supporters of last year’s bail reform bills are planning to add onto the list of crimes that are eligible for detention without bail. He added that Yost’s argument that holding a person without bail is too burdensome for prosecutors is not convincing.

“They basically want to make it as easy as possible for them and their staff to put people behind bars,” Dillon said. “Don’t get me wrong, there are some people who belong behind bars, but that shouldn’t come at the expense of due process and justice.”

If three-fifths of the house and senate pass the proposed constitutional amendment, it will go on November’s ballot.

Putting the proposal on the ballot could backfire on Yost and the measure's supporters in the legislature, said Micah Derry campaign director with Arnold Ventures, a conservative group that supports criminal justice reform.

“I think the irony of a political approach to putting this on the ballot is it will drain resources from conservative groups who know this is a mistake,” Derry said.

Even a short stay in jail before trial, Derry said, can do harm to a person's life and impose a cost to society.

“The unintended message from this proposal is, it doesn’t matter if you are dangerous, if you have money, you will be out before trial.”

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