In recent years, a debate has emerged related to the appropriate role of bail in the American criminal justice system. A coalition of libertarian and progressive advocates has advocated for bail reform in order to reduce the number of Americans who are incarcerated, including those who are awaiting trial on criminal charges.[1] On the other side, certain advocates, including many traditional “law and order” conservatives, argue that bail reform is at least partially to blame for the recent spike in violent crime in America because individuals who have already been charged with crimes and are likely threats to public safety are being left on the streets.[2] 

This simmering debate boiled over in Ohio because of a recent Ohio Supreme Court decision and a proposed amendment to the Ohio Constitution offered in response to the court’s decision.[3] The debate revolves around whether trial courts should be permitted to consider public safety concerns when setting bail amounts.   

In DuBose v. McGuffey, the Ohio Supreme Court upheld a decision by an intermediate state appellate court to reduce the bail of a criminal defendant—who was charged with multiple offenses, including murder—from $1,500,000 to $500,000.[4] The 4-3 decision resulted in five different opinions—the majority opinion, three dissenting opinions, and an opinion from a justice who joined the majority but wrote separately to dispute some of the dissenters’ claims.

Defendant Justin DuBose was charged with two counts of murder, one count of aggravated robbery, and one count of aggravated burglary. The Hamilton County Municipal Court initially set bail at $1,500,000 for DuBose.[5] DuBose then filed a motion for bail reduction with the Hamilton County Court of Common Pleas, which, following a hearing, reduced the bail amount to $500,000.[6] The next day, however, the trial court restored the original bail amount because the victim’s family had not been notified of the bail hearing as required by the Ohio Constitution.[7] 

After the victim’s family was notified, the trial court held multiple hearings on DuBose’s motions to reduce bail. At one hearing, the victim’s grandmother testified that she and the victim’s mother would be “scared to death if [DuBose] gets out” and that they “don’t feel safe with him out on bond.” Following the hearings, the trial court denied the motions to reduce bail and left the amount at $1,500,000.[8] 

DuBose then filed a petition for a writ of habeas corpus with the Court of Appeals for the First Appellate District of Ohio. The appellate court granted the writ, reviewed the case de novo, held that the $1,500,000 bail was excessive, and reduced it to $500,000.[9] 

The state then appealed to the Ohio Supreme Court presenting two propositions of law: first, that the appellate court erred when it reviewed the trial court’s bail decision de novo, rather than under an abuse of discretion standard; and second, that the appellate court erred by discounting the statement of the victim’s grandmother regarding her and her daughter’s concerns for their personal safety.[10] A majority of the Ohio Supreme Court held that “whether a particular bail determination is unconstitutionally excessive is a question of law appropriate for de novo review”[11] and, accordingly, rejected the state’s first proposition of law.[12] 

In considering the state’s second proposition of law, the majority reviewed sections of the Ohio Constitution providing for bail and noted that excessive bail is prohibited.[13] The Ohio Constitution states:

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 . . . . 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.[14] 

The majority noted that if the state believed that DuBose posed a danger to the community and should be held without possibility of release, the state should have complied with procedures set forth in a statute, which include convincing the trial judge that

the proof is evident or the presumption great that the accused committed the serious offense with which the accused is charged, . . . that the accused poses a substantial risk of serious physical harm to any person or to the community, and . . . no release conditions will reasonably assure the safety of that person and the community.[15] 

The DuBose majority further noted that the appellate court found it significant that the state did not pursue having the trial court order DuBose to be held without possibility of release based on public safety concerns, but instead sought to have bail set at $1,500,000.[16] The majority pointed out that the Ohio Rules of Criminal Procedure provide that:

[T]he 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. 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.[17]

The majority found that, based on the rule outlined above, “public safety is not a consideration with respect to financial conditions of bail” and, as such, the appellate court did not “wrongly disregard the grandmother’s statement” when it determined that $1,500,000 was excessive based on DuBose’s financial situation. Accordingly, the majority concluded that the state’s second proposition of law had no merit.[18]

Justices Patrick DeWine, Pat Fischer, and Sharon Kennedy each separately dissented from the majority’s decision. All three argued that the majority was wrong to uphold the appellate court’s approach to reviewing the bail determination de novo. The dissenting justices noted that the Ohio Constitution and the Ohio Rules of Criminal Procedure vest the trial court with broad discretion in setting bail and that such determinations should not be disturbed absent an abuse of that discretion.[19] 

Justice DeWine pointed out in his dissenting opinion that there are good reasons that “[o]ur Constitution and [Rules of Criminal Procedure] entrust bail decisions to trial judges.” He noted that the “typical trial judge has extensive experience in setting the conditions of release, making such decisions on a regular, often daily, basis.”[20] According to Justice DeWine, trial judges are best able to view the witnesses and weigh the credibility of their testimony. Moreover, Justice DeWine noted that trial judges are “far better equipped than appellate courts to actively monitor a defendant’s compliance with the terms of bail” and can “more quickly modify the conditions of release based on changed circumstances.”[21] 

All three dissenters also expressed that the trial court acted within its discretion when it considered public safety concerns when setting the bail amount.[22] Justice DeWine stated that the majority’s holding that public safety may not be considered when setting bail “flies in the face” of court precedent and the Ohio Rules of Criminal Procedure.[23] DeWine emphasized his serious concerns with the majority opinion by saying “Make no mistake: what the majority does today will make Ohio communities less safe.”[24] He summed up his overall concerns with the decision:

In refusing to apply any deference to bail decisions made by trial judges, in refusing to ensure victims’ rights are protected, and in prohibiting a court from even considering public safety in making bail decisions, the majority departs from our rules, our precedent, and our Constitution. And, in doing so, it undermines the safety of our communities.[25] 

Justice Michael Donnelly wrote a separate opinion concurring with the majority to specifically take issue with some of the claims made by the dissenters. He wrote:

Having spent 14 years as a trial-court judge and having set thousands of bonds, I am appalled by the brazen accusations made in some of the dissenting opinions that the justices joining the majority opinion are making Ohio less safe and disrespecting victims simply by telling our courts that they must follow the rules if they want to hold defendants in custody prior to trial without possibility of release before the trial.[26]

While the DuBose case certainly pushed the role of bail to the forefront of the debate over criminal justice reform in Ohio, it might not be the final word on the issue.[27] First, in response to the DuBose decision, the Ohio General Assembly passed a proposed amendment to the Ohio Constitution by the required three-fifths majority of each House, largely along partisan lines, with the Republicans voting in favor and the Democrats against.[28] The proposed amendment will appear on the general election statewide ballot in November and will go into effect if a majority of Ohio voters vote in favor of it.[29]  The proposed amendment would add the following provision to the Ohio Constitution:

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.[30]         

Additionally, Chief Justice Maureen O’Connor, who was in the majority in the DuBose case, is retiring from the court at the end of the year.[31] Two sitting justices—Justice Jennifer Brunner, who joined the majority in DuBose, and Justice Kennedy, who dissented—are running to succeed O’Connor as chief justice.[32] Regardless of who wins, a vacancy will be created which will be filled by the governor.[33] Moreover, both of the other dissenters, Justices DeWine and Fischer, are up for reelection in November.[34] 

With the proposed constitutional amendment and three seats on the Ohio Supreme Court all being on the ballot in November, the issue of bail reform will likely continue to be a focus of debate in the Buckeye State for the foreseeable future.


[1]  See Micah Derry & Claire Chevrier, Ohioans Overwhelmingly Support Criminal Justice and Bail Reforms, cleveland.com, March 24, 2021,  https://www.cleveland.com/opinion/2021/03/ohioans-overwhelmingly-support-criminal-justice-and-bail-reforms-micah-derry-and-claire-chevrier.html.
[2]
See William J. Bratton & Rafael A. Mangual, ‘Bail Reform’ is Killing New Yorkers as Eric Adams Pushes for Change, Wall Street J., Feb. 16, 2022,https://www.wsj.com/articles/bail-reform-killing-new-yorkers-violence-convictions-criminals-judges-court-order-release-murder-stabbing-assault-violent-crime-11645029571; see also Paul Cassell & Richard Fowles, Does Bail Reform Increase Crime? An Empirical Assessment of the Public Safety Implications of Bail Reform in Cook County, Illinois, S.J. Quinney College of Law research paper No. 349 (2020), available at https://dc.law.utah.edu/scholarship/194.
[3] See David Forster, Ohio Supreme Court Bail Ruling Sparks Debate Over Public Safety and Penalizing the Poor, WOUB Public Media, Apr. 15, 2022, https://woub.org/2022/04/15/ohio-supreme-court-bail-ruling-sparks-debate-over-public-safety-and-penalizing-the-poor/.
[4] DuBose v. McGuffey, 2022-Ohio-8, slip op., available at https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-8.pdf.
[5] Id. at 2.
[6] Id. at 2-3.
[7] Id. at 3.
[8] Id.
[9] DuBose v. McGuffey, 2021-Ohio-3815 (Ohio Ct. App.), https://www.supremecourt.ohio.gov/rod/docs/pdf/1/2021/2021-Ohio-3815.pdf.
[10] DuBose, 2022-Ohio-8, slip op. at 5.
[11] Id. at 6.
[12] Id. at 7.
[13] Id. at 4-5.
[14] Ohio Const. art. I, sec. 9.
[15] DuBose, 2022-Ohio-8, slip op. at 8 (quoting Ohio Revised Code, Sec. 2937.222(B)).
[16] Id. at 8.
[17] Id at 8-9 (quoting Ohio Crim. R. 46(B)).
[18] DuBose, 2022-Ohio-8, slip op. at 9-10.
[19] Id. at 18-19 (Kennedy, J., dissenting), at 27 (Fischer, J., dissenting), at 31-34 (DeWine, J., dissenting).
[20]
[21] Id. at 33-34 (DeWine, J., dissenting).
[22] Id. at 22 (Kennedy, J., dissenting), at 27-28 (Fischer, J., dissenting), at 35-38 (DeWine, J., dissenting).
[23] Id. at 35 (DeWine, J., dissenting).
[24] Id. at 28.
[25] Id. at 39.
[26] Id. at 15 (Donnelly, J., concurring).
[27] See Forster, supra note 3.
[28] See Jim Gaines, Bail Change Will Be on Fall Ballot, Dayton Daily News, May 31, 2022,  https://www.daytondailynews.com/local/bail-change-will-be-on-fall-ballot/FLUXHSFG5VAPVLGO5HJJ2ISDPA/.
[29] Ohio Const. art. XVI, sec. 01.
[30] Substitute House Joint Resolution 2 (134th Ohio General Assembly (2021-22)),  https://search-prod.lis.state.oh.us/solarapi/v1/general_assembly_134/resolutions/hjr2/EN/04/hjr2_04_EN?format=pdf.
[31] See Ohio Supreme Court Chief Justice Maureen O’Connor Biography, https://www.supremecourt.ohio.gov/SCO/justices/oconnor/default.aspx.
See also Marc Kovac, COVID, Sentencing Reform Among Focuses for Final Years of Chief Justice Maureen O'Connor's Term, Columbus Dispatch, Dec. 29, 2020), https://www.dispatch.com/story/news/politics/state/2020/12/29/oconnor-heading-into-final-2-years-supreme-court-chief-justice/4006669001/.
[32] See Brunner, Kennedy to Face Off in Ohio Chief Justice Race, Mount Vernon News, May 6, 2022, https://mountvernonnews.com/stories/624891952-brunner-kennedy-to-face-off-in-ohio-chief-justice-race. Justice Brunner has listed “Bail Reform” as part of her “Campaign Platform for Chief Justice of the Ohio Supreme Court” on her campaign website. See https://www.justicebrunner.com/my-platform.
[33] Ohio Const. art. IV, sec. 13; see also Andy Chow, DeWine Supports Constitutional Amendment to Change Rules for Setting Bail, WKSU, Apr. 15, 2022,  https://www.wksu.org/government-politics/2022-04-15/dewine-supports-constitutional-amendment-to-change-rules-for-setting-bail.
[34] See Karen Kasler, Ohio Supreme Court Justices, Chief Justice Races Set for November Election, WKSU, May 3, 2022,  https://www.wksu.org/government-politics/2022-05-03/ohio-supreme-court-justices-chief-justice-races-set-for-november-election.

 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.