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Unlike the Eighth Amendment to the U.S. Constitution, which provides, in part, that “excessive bail shall not be required,” Article I, sec, 9, of the Ohio Constitution provides not only that “[e]xcessive bail shall not be required” but also that there is an affirmative or positive (but qualified) right to bail: “A person shall be bailable by sufficient sureties . . . .”

The right to bail in the Ohio Constitution can be traced to the Northwest Ordinance of 1787, which provided an affirmative right to bail as well as an exception in capital cases. See Northwest Ordinance, Sec. 14, art. 1I (“All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great.”). In slightly different language, the 1802 Constitution in Art. VIII, sec. 12, guaranteed the right to bail in non-capital cases, See 1802 Const., Art. VIII, sec. 12 (“That all persons shall be bailable by sufficient sureties, unless for capital offenses, where the proof is evident or the presumption great . . . .”).  In addition, the 1802 Constitution in another provision provided that “[e]xcessive bail shall not be required . . . .” 1802 Const., Art. VIII, sec. 13.

In 1997, the voters approved an amendment that permitted the denial of bail in non-capital felony cases where the defendant posed “a substantial risk of serious physical harm to any person or to the community.”  The 1997 amendment required the General Assembly to fix standards for making this determination, but it delegated to the Ohio Supreme Court authority to establish procedures “for establishing the amount and conditions of bail.”

Article I, sec. 9, of the current Ohio Constitution, which also includes a ban on the infliction of cruel and unusual punishment and the imposition of excessive fines, provides in its entirety as follows:

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.

 

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.

 

In 2005, the Ohio Supreme Court, relying on the text of this section, its history, and the purpose of the 1997 amendment, held that a cash-only bail bond is unconstitutional. Smith v. Leis , 106 Ohio St.3d 309, 857 N.E.2d 138 (2005). And, in 2014, the court held that this section is violated when a court requires that 10 percent of the bail be paid in cash and prohibits a defendant from posting a surety bond for the full amount. State ex rel. Sylvester v. Neal, 140 Ohio St.3d 47, 14 N.E.3d 1024 (2014).

In its most recent decision addressing this section, the Ohio Supreme Court in DuBose v. McGuffey, ____ Ohio St.3d ____ , 2022 WL 34730, 2022-Ohio-8, ____ N.E.3d ____ (Jan. 4, 2022), held in a 4-3 decision that the “sole purpose of bail is to ensure a person’s attendance in court” and held that an appellate court acted properly in applying a de novo, rather than an abuse of discretion, standard in reviewing a trial court’s setting of bail. The court also held that the safety concerns of a victim’s family were not proper considerations with respect to the financial conditions of bail because “public safety is not a consideration with respect to the financial conditions of bail” (emphasis in original) and that a $1.5 million bail was constitutionally excessive under Art. I, sec. 9, because “the serious nature of the charges did not outweigh [the defendant’s] lack of financial resources.” Finally, the court pointed out that this section of the Ohio Constitution permitted the adoption of a statute, see R.C. 2937.222, for an order of detention without bail, which, when properly relied upon, could justify the denial of bail in cases where a defendant is a danger to any person or to the community, and it further noted that the 1997 amendment delegated to the Ohio Supreme Court the power to adopt “[p]rocedures for establishing the amount and conditions of bail . . . .”

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