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Efforts to Pass Bail Reform Legislation Persists

Michael J. Whitlock

May 26, 2021

Another year and another slate of legislative measures attempting to reduce or eliminate the constitutional right to bail in lieu of either releasing offenders with no conditions for appearance or detaining them without bail. California, Delaware, Nevada and now Ohio have pending bills aimed at making it easier on criminal offenders.
SB 182 was heard in the Ohio State Senate Judiciary Committee yesterday (click here to watch). The arguments made by the bill sponsors left me agog.
SB 182 is a whopping 268 pages long. The sections pertaining to bail include the right to affordable bail, denies judicial discretion in setting bail and pushes for issuing a citation in lieu of arrest for most misdemeanor and several felony offenses. There seems to be little consideration or recognition of similar changes taking place in California, Illinois, Maryland, New Jersey, New York, and other states. That will not happen in Ohio, they claim.
Senator Rob McColley, whose district covers northwestern Ohio, made the usual arguments. Poor people are sitting in jail who cannot afford bail, many crimes should not call for an arrest but a citation and offenders who are arrested should have bail set based on their income and not the seriousness of the crime or criminal history.
Sen. McColley went on to claim people are innocent until proven guilty and should not have to post bail. He followed this by declaring those offenders charged with aggravated offenses should not be granted bail. What? Are they innocent until proven guilty or are they not, which is it?
I was present for New York legislative hearing on bail reform in 2019, when a retired Supreme Court Justice addressed the argument offenders should not be required to post bail because they are “innocent until proven guilty”. He said, people are arrested on probable cause of having committed a crime. Being innocent until proven guilty is an instruction at trial, not arraignment. The purpose of arraignment is to set bail based on a defendant’s likelihood to appear for trial.
We can concede some crimes that do not carry a jail sentence, if convicted, may not require bail on a first arrest. It is also reasonable that select aggravated offenses should carry a very high bail or no bail at all. Unfortunately, the bail reform efforts we have been seeing seeks to take a one-size-fits-all approach to releasing offenders pre-trial. The ever-increasing number of offenders being cited instead of arrested or released on unsecured bail has led to tens of thousands of failures to appear across the country and a national average of a 30% increase in crime.
SB 182 is expected to get out of committee but will face stiff opposition in the full Senate. Due process and reasonable bail is what we seek, not a free process and zero bail. The fight continues.

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