Old Bail Practices Penalized the Poor
In the past, when making bail decisions in criminal cases, prosecutors would often request excessively high bail amounts, citing public safety concerns. However, many detractors of this practice point out that, in practice, this does not generally improve public safety and effectively penalizes the poor. This past January, the Ohio Supreme Court announced that prosecutors can no longer do this.
Attorney Joe Patituce, a board member of the Ohio Association of Criminal Defense Lawyers, notes that in cases where there may be a true concern for public safety, setting an excessively high bail does not ensure public safety; it only discriminates against the poor. For example, while the overly high bail may keep a defendant who can’t afford it in jail, it does nothing to keep a defendant of means in prison.
While prosecutors and other detractors of the new bail rule cite examples where someone was released on bail and then harmed or even killed someone, this is an exceedingly rare occurrence. “When it does happen it’s horrible, it’s tragic,” says Attorney Patituce. However, “it’s so minuscule the number go out and harm people.”
Court’s Ruling Challenged by Republican Lawmakers
Many criminal defense attorneys applauded the court’s decision and see this as a step in the right direction. However, some prosecutors and judges have argued that this decision harms public safety, restricting their ability to keep dangerous suspects in jail. Because of the vocal opposition from prosecutors, many fear that judges and prosecutors will challenge the ruling or simply ignore it.
Indeed, Republican lawmakers have proposed a constitutional amendment to change Ohio’s bail system, requiring courts to consider public safety when setting bail. Additionally, this proposed resolution (HJR2) would also remove the Ohio Supreme Court’s ability to set rules for a defendant’s bail amount and conditions.
Detractor of the proposed bill, Robert Alt, President and CEO of the Buckeye Institute, told WOUB that “requiring judges to consider public safety in setting cash bail … does not provide a meaningful guarantee of public safety. A defendant’s financial means to post bail is not an adequate proxy for public safety nor a sufficient indicator of future good behavior.”
Looking to the U.S. Constitution’s Eighth Amendment for Guidance
The U.S. Constitution’s Eighth Amendment reads, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Ohio Supreme Court cited this amendment as well as a 1951 U.S. Supreme Court decision (Stack v. Boyle) when making the point that the basis for setting a bail amount should be on providing a sufficient financial incentive for the defendant to return to court, not as a tool to keep a defendant in jail while they await trial.
In the cited Stack v. Boyle case, the U.S. Supreme Court noted that bail enables defendants to prepare for their trial without the impediments remaining in jail imposes. Keeping a defendant in prison by setting a high bail amount makes it more difficult for them to work with their attorneys and therefore impinges on their ability to prepare for their trial adequately. It may also cause them to lose their job, economically harming their families in the process.
Restricting excessive bail also “preserves the presumption of innocence.” As defined by this case, excessive bail is that which is higher than needed to compel the defendant to return for their court date.
Other Ways to Address Public Safety
Proponents of the new rule highlight that high bail amounts are not the only way to keep an allegedly dangerous defendant incarcerated but are not even the most effective. There are several other ways to protect the public while not imposing an excessive bail amount on a defendant, such as home confinement, electronic monitoring, and other restrictions, such as limiting where a defendant may travel and whom they are allowed to contact. Furthermore, if a defendant truly poses a risk to either a victim or the public at large, the courts always have the option to deny bail entirely.
At Patituce & Associates, we believe in standing up for defendant rights, including their right to fair bail practices as outlined by the eighth amendment. We have extensive experience providing clients with aggressive defense strategies and we are well-versed in the new bail rules set by the Ohio Supreme Court. If you or a loved one has been accused of a crime, or if you believe this new bail rule has been violated, reach out to our law firm for help. When you need a strong advocate, we are here for you.