Issue expanding judges’ power to deny bail defended, attacked

By Joshua Benton
Blade Columbus Bureau

Page 1

Some say it would protect Ohio’s citizens from the state’s worst criminals. Others say it would take away their most basic rights.

On Nov. 4, voters will pass judgment on Issue 1, which would amend the state Constitution and give judges the power to hold accused felons without bail if they believe they likely are guilty and could pose a danger to others.

Under the Ohio Constitution, only those accused of death-penalty offenses can be held without bail. The issue’s supporters say it would protect the public by keeping violent criminals off the streets.

“There are judges who want to deny bail to a dangerous criminal, but can’t,” state Sen. Robert Latta (R., Bowling Green) said. “Issue 1 would give those judges another tool to protect the public.”

But opponents say the proposed amendment would violate an individual’s right to be presumed innocent until proven guilty. It asks a judge to determine if an individual probably committed a crime before the trial even begins, they say.

“We have a basic constitutional right to be presumed innocent,” state Sen. Linda Furney (D., Toledo) said. “This bill panders to people’s fears about crime, but doesn’t get us anything.”

Proponents argue that the few citizens affected by Issue 1 would be dangerous criminals who should be locked up.

“There are people who have stepped out of municipal court here who should be be hind bars,” said John Weglian, chief of the special units division of the Lucas County prosecutor’s office.

Harland Britz, northwest Ohio general counsel for the American Civil Liberties Union, disagreed. “I don’t think judges are letting dangerous criminals out on the streets now,” he said. “This is a political move to appease certain politicians who believe the country is soft on crime.

“Meanwhile jails are bursting at the seams. We’re not soft on crime. It’s astonishing.”

If judges are worried about letting dangerous criminals loose, they can simply set a high bail.

“For a lot of people who commit crimes,” Mr. Britz said, “setting $100,000 for bail is the same thing as no bail at all.”

Federal courts are already allowed to consider whether suspects are a threat to the public when determining bail, and Mr. Latta said he wanted Ohio judges to have the same authority their federal counterparts do.

The constitutional provision that guarantees bail in all but capital cases dates back to 1851. Mr. Weglian said the nature of criminal activity has changed substantially since then.

“Now, at least a third of the cases we handle now involve attempts to intimidate witnesses or victims,” he said. “Even 10, 15 years ago, I’d be surprised if that happened in one of 20 cases.”

But Chris Link, the ACLU’s executive director in Ohio, said instances of witness tampering or intimidation are crimes in and of themselves and should be prosecuted separately.

Giving judges the power to elim inate bail puts too much authority in their hands, Ms. Link said. She pointed to a case in 1990 when an Ohio woman burned a flag and was charged with inciting a riot, a felony. Ms. Link said the judge in the case wanted to withhold bail in that case because of her own political opposition to flag burning.

The judge was unable to do so because of the state’s Constitution’s guarantee of bail, but if Issue 1 is passed, withholding bail in such a case would be legal, Ms. Link said.

Federal courts can keep felony defendants without bail, but Mr. Britz said that, under federal law, all nondrug-related defendants are automatically presumed not to be dangerous. Prosecutors must prove them to be a threat before bail can be withheld.

Under Ohio’s proposed amendment, he said, the rules are much looser.

“The language is extremely vague,” Mr. Britz said. “That gives the judge almost unlimited discretion to deny bail in these cases.”

But Mr. Latta said he had enough faith in Ohio’s judiciary to give judges that power.

“Our judges are responsible to the electorate and are going to have enough common sense to interpret this language in the way it was written,” he said.

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