Stark legal experts express skepticism, opposition to Issue 1

CANTON – Prominent members of the local legal community expressed unease and skepticism, if not opposition, on Thursday to a proposed state constitutional amendment that could change how bail is determined in criminal cases.

A panel of five spoke about Issue 1 at a League of Women Voters of the Canton Area forum held at Timken Commons at McKinley High School's downtown campus. The issue will appear on the November ballot. About 50 people attended the discussion.

2022 election preview:What to know about Ohio Issue 1 on November 2022 ballot

"You should vote no on this because it's unnecessary and it just keeps poor people in jail," said Stark County Public Defender Tammi Johnson, whose office represents indigent defendants.

She said if a poor person can't post bail and is held in jail for months or years before they're acquitted at trial, at that point they've lost their job, probably their home and probably custody of their children.

In addition to Johnson, the panel featured retired University of Akron law professor J. Dean Carro, Stark County Common Pleas Judge Kristin Farmer, former Canton Law Director Joe Martuccio and Canton Prosecutor Jason Reese.

Seeing Ohio Issue 1 from both sides

Jason Reese said he loves the proposed Issue 1 on the November ballot because as a prosecutor, "I will automatically be up 14 points," in arguing for a high bond to keep defendants in jail while awaiting trial.

While "it's important to protect the citizens," the lawyer part of him says, "this is a cheap way to have judicial reform. Putting people in jail isn't judicial reform."

Reese said the proposed amendment doesn't address the root causes that lead to people committing crimes. It doesn't address the trauma of a missing parent, growing up in a household with domestic violence, the lack of education and other factors that contribute to someone becoming a criminal.

What does Issue 1 say?

The proposed state constitutional amendment would add this line to the section on bail in 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."

Panelist J. Dean Carro, a retired University of Akron law professor who specialized in inmates' civil rights, discussed the catch-all phrase at the end of the proposed new amendment. He said it means "the general view is the General Assembly will do what it wants to do."

The panel's moderator, former Canton Law Director Joe Martuccio, said: "That's a dangerous phrase in my opinion. ... It's taking power away from the court system."

The Ohio Constitution already denies bail in capital offenses "where the proof is evident or the presumption great" and "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."

The amendment also deletes the line in the Ohio Constitution that gives the Ohio Supreme Court the power to set the rules for courts on setting bail.

Martuccio referred to the deletion as "Bye, bye, we don't need you justices."

"This is well intended, but we need to read into it a little closely," he said.

On the other hand, Martuccio said, "We don't want people awaiting trial who are dangerous to be released. ... Nobody is against safe streets. Nobody is against dangerous people being held in check."

But he said he didn't want the other extreme either where a low-income defendant, often a person of color, who can't afford to post bail is incarcerated for months waiting for their day in court.

Martuccio and Reese have been elected or run as Democratic candidates in past elections. Farmer has been repeatedly re-elected a judge as a Republican candidate.

Back story

The proposed amendment is an apparent reaction to an Ohio Supreme Court decision in January known as DuBose v. McGuffey that bail should not be set so high due to public safety concerns. The court in a 4-3 decision ruled the bond should be the minimal amount to ensure the defendant's appearance in court. And judges can protect the public through no-contact orders and travel restrictions set on defendants.

The Ohio House voted 63 to 33 on May 25 to place the proposed amendment on the Nov. 8 ballot. State Rep. Scott Oelslager, R-North Canton and State Rep. Reggie Stoltzfus, R-Paris Township voted yes. State Rep. Thomas West, D-Canton, voted no.

The Ohio Senate voted 25 to 7 on June 1 to place the amendment on the ballot. The Ohio Constitution says the Ohio General Assembly can approve state constitutional amendments for voters' consideration only if 60% of both chambers approve the amendment. State Sen. Kirk Schuring, R-Jackson Township voted for the amendment.

All the legislators who voted for the amendment are Republicans, which Martuccio pointed out. All the legislators who voted against the amendment are Democrats or independents.

Is constitutional amendment necessary?

Farmer did not express outright opposition to Issue 1. But she noted that if voters approve the proposed amendment, it becomes difficult to change how courts set bail if changes are needed in the future.

She said judges often take public safety in account when deciding bail. And the amendment doesn't seem to address the other options judges have to protect the community. Judges can require defendants be placed under electronic monitoring or GPS tracking. Or restrict them to their homes while they await trial.

Carro said under the current system whether people are released on bond often depends on how much money they have.

"If you can't make bail because you didn't have a lot of money, you're going to remain in jail for a lengthy period of time," he said.

Carro said a defendant who's being held in jail is less able to assist in their defense and help find witnesses to back their defense or alibi than a defendant who's free on bond. An investigator or attorney who's not part of the community is often going to have a more difficult time finding witnesses to bolster their defense due to people in a community being reluctant to speak with them. Plus, the effects of incarceration while awaiting trial saps the defendant's mental health in addition to the defendant often losing their job.

Is bond system fair?

Johnson, the public defender, said defendants being held in a county jail because they can't afford to make bail still are supposed to enjoy the presumption of innocence until the state proves they're guilty.

"If you're wealthy enough, you can get out of jail," she said, adding that the current system of allowing those who can post high cash bonds to be released doesn't protect the public. "There are ways to keep people safe without having people populate the jail."

Johnson referred to the case of Dragan Sekulic who in 2015 was charged with felonious assault with trying to ram his car into that of his ex-wife's. Sekulic was able to post bond of $100,000, which Canton Municipal Court Judge John Poulos set at double the recommended bond amount for his alleged offense, and he was released.

Sekulic shot and killed his ex-wife a couple of weeks later. Sekulic was sentenced by Farmer the next year to life in prison without parole.

Carro said incarcerating more defendants as they await trial is expensive. And he sees the amendment as a response by Republican legislators to the Ohio Supreme Court decision who "want to be seen as protective of the public."

Reese said there are only so many jail beds available. With the limited resources, Reese said if voters approve the amendment, "operationally, I don't think it'll make much of a difference."

Reach Robert at robert.wang@cantonrep.com. Twitter: @rwangREP.

This article originally appeared on The Repository: Stark legal experts question proposed Ohio constitutional amendment