8.1 Pretrial Release Law and Conditions of Release Before Trial

Know the Current Law

Older study materials describe Ohio bail under Criminal Rule 46. That rule was repealed effective July 1, 2023. Its content now lives in statute, mainly ORC 2937.011, effective June 30, 2023. Questions about "conditions of release prior to trial" should be answered from the constitution and statutes below.

Constitutional Framework

Ohio Constitution, Article I, Section 9 (as amended in 2022)

• All persons shall be bailable by sufficient sureties, except:
  • a person charged with a capital offense where the proof is evident or the presumption great; and
  • a person charged with a felony where the proof is evident or the presumption great and the person poses a substantial risk of serious physical harm to any person or the community.
• Where a person is charged with any offense for which they may be incarcerated, the court may determine at any time the type, amount, and conditions of bail.
• Excessive bail shall not be required.
• When determining the amount of bail, the court shall consider public safety, including the seriousness of the offense, the person's criminal record, the likelihood the person will return to court, and any other factor the General Assembly prescribes.
• The General Assembly must set standards for deciding dangerousness. That is the job of ORC 2937.222.

The Eighth Amendment

The U.S. Constitution also provides that "excessive bail shall not be required." In Stack v. Boyle (1951), the U.S. Supreme Court described bail set higher than an amount reasonably calculated to assure the defendant's presence as excessive.

ORC 2937.011: How Release Decisions Are Made

The Standard (Divisions (A) and (B))

Unless the defendant is detained under ORC 2937.222 or other law, the court shall release the defendant on the least restrictive conditions that, in its discretion, will reasonably assure:

• the defendant's appearance in court;
• the protection or safety of any person or the community; and
• that the defendant will not obstruct the criminal justice process.

Financial conditions must relate to public safety, the risk of nonappearance, the seriousness of the offense, and prior criminal record. They must also be the least costly to the defendant while still sufficient to reasonably assure appearance.

Types of Bail (Division (C))

An unsecured bail bond; a 10% cash deposit with 90% returned on compliance; or a surety bond, real estate or securities bond, or cash deposit at the defendant's option (Section 6.2).

Conditions of Release (Division (D))

Factors the Court Considers (Division (E))

1. The nature and circumstances of the crime, specifically whether the defendant used or had access to a weapon;
2. the weight of the evidence;
3. confirmation of identity;
4. family ties, employment, financial resources, character, mental condition, length of residence, jurisdiction of residence, conviction record, and record of appearance at court proceedings or flight to avoid prosecution;
5. whether the defendant is on probation, community control, parole, post-release control, bail, or a protection order; and
6. the considerations required by Article I, Section 9.

A bail schedule is not "relevant information" for these factors (division (I)(2)). ORC 2937.23(A)(3) likewise requires that bail be set with consideration of the seriousness of the offense, prior record, and the probability of appearing.

Presumptions, Schedules, and Timing

• Summons cases: Absent good cause, there is a presumption of release on personal recognizance when the defendant appears on a summons (division (F)).
• Bail schedules: Each court sets a schedule covering all misdemeanors, including traffic offenses, solely to allow release before the initial appearance. Courts review it biennially by January 31 of even-numbered years. Municipal and county courts must allow bail to be made by credit card (division (I)).
• Initial bail hearing: A person arrested and not released must be brought before a judicial officer no later than the second court day after arrest. If the defendant was unrepresented and remains in custody, a second hearing is held on the second court day after the first, with appointed counsel for an indigent defendant (division (J)).
• Evidence: Bail information need not meet the rules of evidence. Statements the defendant makes at a bail proceeding or while complying with a condition cannot be used as substantive evidence at trial (division (H)).

Denying Bail: ORC 2937.222

Offenses eligible for a detention hearing: aggravated murder (non-capital), murder, first- or second-degree felonies, violations of ORC 2903.06, felony menacing by stalking under 2903.211, and felony OVI offenses.

Procedure:

• The hearing is held on the prosecutor's motion or the judge's own motion. The accused is detained until the hearing ends.
• Continuances are limited: the state's are capped at three court days and the accused's at five court days, unless waived in writing or good cause is shown.
• The accused has the right to counsel (appointed if indigent) and may testify, present witnesses and information, and cross-examine. The rules of evidence do not apply.

Burden: The state must prove, and the judge must find by clear and convincing evidence, all three of the following:

1. the proof is evident or the presumption great that the accused committed the offense;
2. the accused poses a substantial risk of serious physical harm to any person or the community; and
3. no release conditions will reasonably assure safety.

If the offense is not bailable, bail is denied, or sufficient bail is not offered, the court orders the accused detained (ORC 2937.32).

What This Means for the Surety

• The court sets the type, amount, and conditions. The agent's indemnity agreement cannot override them, and the agent cannot post a surety bond if the order does not allow one.
• The surety's financial exposure is tied to appearance. Under 2937.011(K), anyone who fails to appear is subject to punishment and any bail may be forfeited. When there is a breach of a condition of release, the court may amend the bail. That can mean higher bail, new conditions, or remand, so watch closely for violations that could lead to a revocation or a flight risk.