Justice R. Patrick DeWine (R) stopped by Wapakoneta along his campaign trail for November’s upcoming election, where he, as the incumbent, faces opposition by Marilyn Zayas (D) for judge of The Supreme Court of Ohio.
One of the hot topics for November’s ballot is “Issue 1.”
“’Issue 1’ is a constitutional amendment that says that judges, when they set bail for criminals, shall consider, among other things, public safety. That came out of DuBose, a 4-3 decision of the Ohio Supreme Court. It said that local judges, when they set bail for accused criminals, are not allowed to consider the safety of the public. That, in my view, was a pretty shocking ruling, because judges in Ohio have always considered public safety when they set bail for alleged criminals,” said DeWine. “In fact, the rule that judges are supposed to follow specifically says a judge may consider, in setting the
terms of bail, the safety of any person in the community. When the court made [the DuBose] decision, I wrote a pretty vehement dissent explaining why that decision was wrongly decided and ultimately made Ohio less safe. But nevertheless, it was a dissent. The majority opinion was the law in Ohio. Local judges have been forced to follow that across the state. “
DeWine explained citizens, prosecutors, sheriffs, and police officers have been concerned as a result of the DuBose decision.
“[Due to] some of the people who’ve been immediately released on low bail, as a result of [DuBose], the outcry was so great that the legislature put a Constitutional amendment, called ‘Issue 1,’ on the ballot that will effectively overrule that decision,” DeWine said. “I support ‘Issue 1.’ I think that it makes sense for judges to consider public safety. I think it’s critical that they do that. But I will also say that it shouldn’t take a Constitutional amendment to get the Ohio Supreme Court to follow the law and exercise common sense. That’s why I think these upcoming elections are so critical for the Ohio Supreme Court.”
In a somewhat related matter, Ohio has formed a committee to collect data and arrive at a uniform sentencing entry form judges would use. The form would ideally address and ameliorate concerns about the fairness and consistency of sentencing in terms of race and gender.
The question arises, then, when allowing latitude in the imposition of higher bail, if it poses similar concerns of possible race and gender bias.
DeWine did not think so.
“’Issue 1’ is just about bail, so that’s different than sentencing. What ‘Issue 1’ really does is it puts into the Constitution what had always been the law in Ohio up until the [DuBose] Supreme Court decision in January of this year. There may be individual cases where there’s a concern, but I don’t think when judges consider public safety, that’s a racial issue. I think that’s a criminal justice issue. That’s a common sense issue. If judges can’t consider public safety when they set bail, it’s going to affect people who live in the most crime-ridden neighborhoods the most. So people who live in the toughest neighborhoods are going to suffer the most because they’re going to see people released who are violent and dangerous.”
Likewise, judges have some latitude in their sentencing decisions, generally.
“By law in Ohio when judges sentence people they have a range. So if someone commits an F1 (the most serious crime), other than homicide, the range is 3 to 11 years, so you have to pick something within that. But you don’t have unbridled discretion. Discretion is already constrained by the sentencing ranges, which is different than at one time when judges had a great deal of discretion. Some would like to see [judges] have less discretion. But I generally think that local judges who know the community generally make pretty good decisions about sentencing, and also about bail,” DeWine said. “One of the things with this bail issue is when the Ohio Supreme Court decided the DuBose case. They said that when a reviewing court reviews the local judge’s decision, they don’t give any type of deference to what the local judge decides. They just look at it brand new--even though when the local judge does it, he or she has the victim come in and testify, evidence and police officers come in, and they actually hear the evidence that gives the judge credibility. When it comes to Court of Appeals or Supreme Court, all you are looking at is a paper record. But the court in DuBose said that that doesn’t matter, you don’t have to give any type of discretion, any type of deference, to what the lower court judge decided.”
Comparatively speaking, sentencing differences are a result of a lot of considerations, including factors like previous criminal history. The sentencing process is a complex one and it is often difficult for journalists to convey what went into a decision, especially one involving a plea bargain. DeWine shared his thoughts on transparency in the sentencing decision process.
“I always think it is a good idea when judges can outline as much as they can why they decided to do anything. We write decisions and explain to people why we decided what we decided. I think that is good practice for judges,” DeWine said.
“To me, I would consider ‘Issue 1’ bail reform because it’s fixing what’s broken in the system now. There are other things people want to do. The legislation has kind of changed over time. I think there’s some good ideas there. There’s some not-so-good ideas, in fact. I think one good idea is that right now, under existing law, you can hold certain types of offenders without bail--people where there’s strong evidence that they’ve committed the most serious crime. That misses some people. Say you had a domestic violence, where someone is really dangerous but they’re not charged with an F1 or F2. But you have good reason to think that if that person gets out, they’re going
to hurt their spouse. So expanding [higher bail or denial of bail] to include lower-level felonies in the right circumstances makes sense. I think, generally, none us want to see someone who’s non-violent who could be out supporting their family sitting in jail awaiting trial. I think most of our judges already do a pretty good job of getting those people out of jail. I think our judges actually do a better job than people think.”
“In redistricting, I applied the same set of standards that I’ve applied to every other case. I got independent ethics advice from an outside expert and I followed that advice. That advice was: where my father is not personally affected, and he’s one of seven members on the [Ohio Redistricting Commission], that I do not need, and, in fact, should not recuse myself. Now, when there was a question about contempt (even though some people said that the court did not have the authority to hold them in contempt), which could have involved personal sanctions, then I’d recuse myself. So, I followed the same standards in those cases as I have in other cases. I just feel that since they’re more politically charged, there’s been a little more attention to them.”
In terms of redistricting affecting elections, DeWine pointed out that most people don’t realize that the matter is not resolved.
“We have a pending case. The case is not over. People think it’s over because we’re voting, but actually, the case is ongoing—and so it will affect next year’s districts.”
Because he is limited on what he can say about pending cases, DeWine directed people to visit his website, patdewine.com, and read his dissents on the Supreme Court’s website, to know his opinion.
“I think it’s a very clear contrast,” DeWine said of his opponent. “It’s probably most pronounced when it comes to issues concerning public safety, the rule of law, and police practices. While I dissented from the DuBose case, and said judges should be able to consider public safety, she has said publicly that she agrees with the decision.”
He cited another case where Zayas wrote an opinion about a police officer at a gas station convenience store who was alerted to the fact someone was about to get into a car and drive drunk. Zayas’s opinion was that it was a Constitutional violation for the officer to stop them.
“That’s a dangerous decision for police practices,” DeWine said. “It was reversed 7-0 by the Ohio Supreme Court. Every member of the Court thought that was wrong. So, I think we have very different views when it comes to the rules of law and public safety.”
DeWine also mentioned a distinct difference in campaign funding sources.
“Just look at where the funding is coming from,” DeWine said. According to the last finance report, I raised over 98 percent of my funds from people in the State of Ohio. In her case, over 90 percent of her contributors came from outside of Ohio. Only about 10 percent of the people who donated to her campaign were actually Ohioans.”
While comparing dollars to dollars or number of contributors would be more exact, the impression is that the majority of Zayas’s funding comes from outside of the state.
As someone running for an elected position, DeWine says he is confident in the security and accuracy of Ohio’s election process.
“I think in Ohio our election officials do a pretty good job,” he said. I’m not overly concerned about what’s going on in the State of Ohio as far as election security. I trust our Secretary of State and political election officials . . . [but] I can’t speak to what happens in other states,” DeWine said.
DeWine has plans after a potential win that reflect a continuation of his judiciary style.
“I’m going to do what I’ve done for the last six years, which is to be a judge who calls balls and strikes within the existing rules,” DeWine said, using a baseball metaphor. “I’m not someone who thinks judges should make the law. I think we’re more like umpires. The rules of the game are established by the legislature and we call balls and strikes within those rules. I’m going to be a judge that protects those laws and understands the importance of the safety of Ohio’s communities.”