This opinion piece was published in The Cincinnati Enquirer.

The fatal shooting inside a Butler County Walmart in May highlights the need to improve Ohio’s bail rules. The suspect was awaiting trial for aggravated armed robbery but was free on a $200,000 bond when he shot two Walmart customers. High bail, it seems, was not enough to stop another killing.

Bail reform requires striking a sensible, legal balance between the public’s safety and the accused’s presumed innocence until proven guilty – no easy task and even harder than it might sound. But Ohio must continue to try, and voters will decide this fall whether to amend the Ohio constitution so state judges may consider "public safety" along with a defendant’s criminal record and the seriousness of the offense when setting bail.

But even if the proposed amendment passes, more legislative work will need to be done because – contrary to popular perception – high bail is no surefire substitute for public safety, and the Ohio and U.S. constitutions both prohibit "excessive bail" as a means of protecting the public. Fortunately, there are alternatives, and the Ohio General Assembly has been working on them for months.

With significant input from judges, prosecutors, defense counsel and the bail bond industry, House Bill 315 and Senate Bill 182 set out to fix broken pieces of a complex, imperfect system. The bills follow the Buckeye Institute’s commonsense suggestion to deemphasize money bail and make many more serious crimes eligible for "preventative detention" before trial. Currently, Ohio courts do not use preventative detention often, even for most serious offenses. It requires a hearing and enough evidence for judges to conclude that the accused has committed a top-level felony and is either dangerous or a significant flight risk. 

Expanding preventative detention offers more public protection than simply setting high bail. With preventative detention, if the proper evidence is presented and the legal standards are met, no amount of money raised by family, friends, advocacy groups, or crowdsourcing websites can free an accused who poses a real danger to the community. And that is important because a recent New York study of more than half a million cases found that the riskiest one percent of defendants failed to appear for court at a 56.3% rate and were re-arrested at a 62.7% – and roughly half of them (48.5%) were released on bail.

Legally expanding judicious use of preventative detention for serious crimes and legislatively reforming bail rules for less dangerous defendants offers additional benefits that the proposed constitutional amendment alone does not. Ohio jails are currently brimming with people not believed to be a public threat who are simply confined before trial because they cannot afford court-assessed bail. In making its bail reform recommendations in 2019, the Ohio Supreme Court lamented that 57% of the Ohio jail population was awaiting trial and not serving actual sentences for crimes.

Sensible bail reform should help fix that disturbing statistic – and save Ohio taxpayers some money. As the Buckeye Institute estimated in 2018, releasing most nonviolent offenders before trial would save Ohio approximately $67 million per year, a significant sum that could otherwise be invested in curbing drug abuse and expanding mental health treatment.

Ohio voters may well amend the state constitution later this year to give courts more discretion in protecting our communities. But even if they do, lawmakers will still need to improve critical alternatives to bail if they want to strike the right balance between securing public safety and safeguarding constitutional rights and liberties.

Alan B. Smith is a criminal justice fellow at The Buckeye Institute’s Legal Center.