The Ohio Senate has approved a measure codifying court rules that govern how judges set bond. The step comes after a clause in last year’s cash bail amendment eliminated the courts’ ability to set its own rules.
Senate President Matt Huffman hinted this may not be the last time lawmakers take a more active hand in court administration.
Criminal Rule 46
In early 2022, the Supreme Court ruled that judges could not weigh a defendant’s threat to public safety when determining the cash amount of bail. Although the majority was careful to explain safety is a valid consideration for non-monetary conditions, many conservatives loudly objected to the ruling.
State lawmakers were so incensed that later in 2022, they had a constitutional amendment on the ballot explicitly overruling that court decision. The amendment passed with more than 75% of the vote.
There was just one hang up. The provisions judges use to set the terms for pretrial release come from Criminal Rule 46. While the cash bail amendment directed judges to consider public safety, it also nixed the courts’ authority to set bail procedures through rule. As a result, the Supreme Court voted to repeal Rule 46.
On the Senate floor Wednesday, Sen. Nathan Manning, R-North Ridgeville, explained that puts the courts in a tricky situation.
“If we do not pass this with the emergency clause there will be no Rule 46, or law that covers Rule 46, leaving the courts kind of in disarray,” he said.
Co-sponsor Sen. Paula Hicks-Hudon, D-Toledo, added, “the repeal of Criminal Rule 46 will leave the court without any consistent or uniform pretrial detention standards to use.”
“You may have in one court, within the same jurisdiction, one decision, and a similar circumstance being held differently in another court,” she said.
Given that alternative, it wasn’t difficult for Manning and Hicks-Hudson to advance a measure effectively codifying status quo under Rule 46. Sheriffs, prosecutors, defense attorneys, the bar, judges, and a number of outside interest groups supported the measure. There was no organized opposition.
Still, some of that support comes with a caveat. Hicks-Hudson argued the measure shouldn’t preclude bail reform efforts down the road. In committee, for instance, Patrick Higgins from the ACLU of Ohio welcomed the bill as “a necessary step in providing guidance to our courts.”
Still, he warned reliance on cash bail won’t increase safety.
“Wealth is not a good proxy for public safety,” Higgins said, adding, “Cash bail does not keep Ohioans any safer than other conditions of release and instead results in wealth based attention around the state.”
Manning and Hicks-Hudson tacked an emergency clause onto their bill — meaning it will take effect immediately if approved — because the Supreme Court’s repeal of Rule 46 takes effect July 1. Ordinarily, the bill would wait 90 days before taking effect.
That repeal is just one part of a broader annual update of court rules. Senate President Matt Huffman wants to leverage that process to exert greater influence.
“The way this process works, constitutionally, is the legislature has to approve these court rules,” Huffman said, “It’s not up to the court to decide here’s our rules, and everybody has to live with them.”
“If the legislature does nothing, they become the law,” he explained. “And about the last 20 years there have been some overstepping of bounds by the Supreme Court. We’re going to be taking a look at a lot of those.”
Huffman said they took up the bail measure on its own because of the impending deadline, adding they probably should’ve brought it forward even sooner.
With Senate passage, the proposal now heads to the House. Given its broad support, lack of opposition and importance, it seems likely to advance quickly. But to maintain the emergency clause, supporters will have to meet a higher bar. Two thirds of members must support the emergency clause on a separate vote.
This story was republished from the Ohio Capital Journal under a Creative Commons license.