Tough-on-Crime Cash Bail Initiatives Win in Ohio and Alabama

The debate over bail has become a polarizing flash point. But as usual, the answer is more nuanced than either Republicans or Democrats would have their bases believe.

Voters in Ohio and Alabama on Tuesday chose to make their states' respective cash bail systems more stringent, electing in different ways to enshrine a dangerousness standard when determining a defendant's suitability for release before trial.

Ohio's new constitutional amendment will allow judges to set a dollar amount commensurate with a person's criminal record, the seriousness of their alleged crime, and their odds of appearing at court following pretrial release. The Ohio Senate ushered the initiative forward in direct response to a ruling from the state's highest court, which said in early January that bail could only be used to ensure a defendant's presence at trial—the constitutionally prescribed reason for its use.

In Alabama, voters were tasked with deciding if the state should be able to deny bail for certain offenses if the government can convince a judge that the defendant poses a threat to the community or cannot be trusted to return to court. Those offenses include murder; first-degree kidnapping, rape, and sodomy; sexual torture; first-degree domestic violence, human trafficking, burglary, arson, and robbery; terrorism; and child abuse.

Dangerousness standards are not new to the bail debate. New Jersey implemented a similar rubric in 2017, allowing courts to perform a risk analysis when deciding where a defendant should spend time before he or she goes to trial.

But that system also replaced cash bail.

It's a consequential distinction between the amendment passed by Ohio, for example, which will now make its dangerousness standard proportional to the dollar amount required for pretrial release. In other words, whether or not an Ohio defendant is set free before trial will turn on how rich he or she is or who comes to his or her financial aid, regardless of how dangerous he or she might be. In practice, it is divorced from actual danger.

New Jersey's risk-analysis bail reform was implemented under Republican Gov. Chris Christie. The results have shown both a minute risk of re-offense and flight before trial; the pre- and post-bail reform numbers are virtually consistent.

Despite New Jersey's success in offering a prototype for reforming cash bail while protecting public safety, the debate has become increasingly politicized. Many reformers say that a dangerousness standard is racist, while law-and-order politicians are likely to present any bail reform as a driver of violent crime.

The answer is more nuanced than either major political party would want their base to believe.