For those with a basic understanding of cash bail, the Ohio Supreme Court’s 2022 decision in Dubose v. McGuffey would have seemed unremarkable. In its ruling, the court recognized that a judge cannot lawfully increase a bond amount for the sole purpose of ensuring the defendant can’t afford it, which is exactly what the trial judge in Justin Dubose’s case had done. The court’s majority noted that cash bail’s purported purpose—indeed, its sole legal function in Ohio at that time—is to guarantee a defendant’s return to court. Prosecutors who believe the person poses a threat to public safety can request a detention hearing under R.C. 2937.222 and ask that the defendant be held pending trial. They can’t use excessive bail as a shortcut.
The problem, though, is that in practice cash bail is used this way all the time. So, while legally predictable, the Dubose decision was an unexpected blow to the status quo and those who see no problem incarcerating people for their poverty. In a dissenting opinion, Justice Pat DeWine rebuked the majority, asserting that the decision “will make Ohio communities less safe.” With three seats on the Supreme Court up for election, it didn’t take long for the Dubose decision to ricochet out of the Supreme Court and into the 2022 midterms.
The Dubose ruling offered conservative politicians a golden opportunity, and they took full advantage of it. Two Republican state representatives soon had initiated the process to get a constitutional amendment on the ballot for the Fall 2022 midterm election. Specifically, they sought to change Ohio’s constitution to require judges to “consider public safety” when making decisions about the financial conditions of bail. Ohio attorney general Dave Yost and Hamilton County prosecutor Joe Deters both appeared at a press conference announcing the effort, decrying the Ohio Supreme Court’s “reckless decision” in Dubose and tying it to the need for the amendment so that judges “have the tools they need to protect the public from violent offenders.” The Republican-controlled legislature pushed the amendment language through, and Issue 1, as it came to be known, ended up on the November ballot.
Ultimately, Issue 1 passed with overwhelming support—and Republican pols swept their races. Issue 1’s passage also seemingly extinguished the hope that HB 315, a bipartisan bail reform bill Ohioans had been working toward for years, would ever make it to the governor’s desk.
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So where does one go from here, when here is Ohio—a state where the fearmongering about crime did work, and the Republicans responsible for it are in power. It’s a strategic question with national implications.
As a former public defender who has seen the devastating effects of our punitive criminal legal system, I think the question of what to do next—because doing nothing is not an option—is a critical and urgent one. It is a question surely on the mind of anyone who directs their energy toward the political process in hopes of scaling back the reach of mass incarceration.
What follows is a reflection on Issue 1’s passage and two lessons we can take from it as we work to avoid similar setbacks in the future.
Shortly before early voting began, the Republican State Leadership Committee ran an attack ad against the three Democratic candidates for Supreme Court seats: “Outrageous bail rulings risk our safety . . . yet Jennifer Brunner and Democrat justices on the Ohio Supreme Court ruled in favor of lowering an alleged murderer’s bail.” The Ohio State Bar Association sent a letter to the RSLC, calling out the ad as “misleading and a disservice to voters to grossly oversimplify their opinions just to score political points.”
The same could be said about Issue 1 itself. Styling the Dubose decision and cash bail as a major public safety crisis facilitated the Republican effort to inject crime and fear into the midterm election—a strategy they believed would give them a significant political advantage. Rather than just speak generally about rising crime, Ohio Republicans created a specific problem (the Dubose bail decision), the source of the problem (Democrats on the Supreme Court), and the answer (elect Republicans instead). Democrats had no unified response.
Instead, key Democratic candidates took the bait and expressed their support of the amendment, presumably thinking this would make them appear sufficiently concerned about “public safety.” Democratic gubernatorial candidate Nan Whaley explained she would vote yes on Issue 1 because “judges should look into whether someone’s going to be unsafe for the community. That makes sense.” (Never mind that the Supreme Court decision emphasized that judges do and can consider public safety at bail and detention hearings.) Her support of Issue 1 signaled to voters that Republicans were right about the Supreme Court’s “reckless decision.”
Democratic U.S. Senate candidate Tim Ryan also threw his support behind Issue 1, after previously stating he didn’t think “rich people should be able to buy their way out of jail.” His support of the amendment came with a reminder to voters that “crime is an issue. I don’t care what anybody says about that.” But by treating Issue 1 as though it was a good-faith effort to address a real public safety crisis created by the Ohio Supreme Court’s liberal justices, he gave credence to the Republicans fabrication.
The weight of these political miscalculations became clearer to me when, following the midterms, I read Anand Giridharadas’s book The Persuaders: At the Front Lines of the Fight for Hearts, Minds, and Democracy (2022). While the book details example after example of “persuaders”—people who have found success in shifting the narrative in the world around them—one chapter highlights the repeated failures of those who hopelessly play defense instead of working to build a coalition of support. In this chapter, political messaging expert Anat Shenker-Osorio explains that successful political campaigns are never reactive: They set the narrative, rather than allowing it to be set by their opponents.
That is a lesson to be learned here. We have to think more strategically about what our opponents are saying, and how what we say in response may be unwittingly affirming their narrative. We have to be prepared to effectively shift away from conversations we will certainly lose. As Shenker-Osorio warns, “To be arguing on your opponent’s conversational turf, on their terms, through their frames, is to concede before you open your mouth.”
Issue 1 was clearly politically motivated fearmongering. Democrats should have treated it as such, instead of behaving as though it was a legitimate question about public safety. They should have had a unified response, instead of leaving voters confused about the amendment and their vote. They should have turned conversations about Issue 1 away from bail and toward Republican power grabs, which was what the amendment was really about.
But Democrats also need an affirmative agenda—a positive, proactive message about safety and stability. Playing defense on Republicans’ tough-on-crime turf will only guarantee another series of losses. Instead, Democrats must build support for a different vision of safety, one that focuses on ensuring people can access the things that keep them safe, like housing, health care, education, and a stable income. With effective policymaking and communications, Democrats can weaken the stranglehold incarceration has on our conception of safety, which will help mitigate future Republican fearmongering about crime.
The 2022 midterms also showed us that decarceral progress in Ohio can be upended by those who are able to secure political office and then roll back or undermine our work. So it is imperative that we elect progressive leaders who can use their power to not only enact policies that keep people out of jail and prison, but actively work alongside communities and advocates to shift the public’s understanding of what keeps us safe.
Directing energy to our local elections and reaching out in our respective communities is a critical part of this strategy. Statewide politics garner a lot of attention, but we know local politics have an enormous impact on our day-to-day lives. In 2024 Ohioans will not just be voting for president. We will also be voting for our county prosecutors and sheriffs, which means that crime and safety will inevitably play a part in the 2024 election cycle.
There are reasons to be hopeful that different conversations could take place in this next election. In Cuyahoga County (which includes Cleveland), Matthew Ahn recently announced he would be exploring a challenge to Cuyahoga County prosecutor Michael O’Malley. O’Malley, a Democrat, was elected in 2016, ousting incumbent Timothy McGinty, who was broadly criticized for his failure to indict the officers who shot and killed Tamir Rice. But since taking office, O’Malley has led the nation in the number of death sentences handed out, has prosecuted more children as adults than any other prosecutor in the state, and recently lost the board of his conviction integrity unit over his obstructionist practices.
Ahn announced his interest with thirty-two tweets detailing his vision for the office, which includes never seeking the death penalty, putting a moratorium on transferring children to adult court, adding a public integrity unit to the office to prosecute cases of wage theft, and implementing “aggressive policies” to reduce the jail population. In the thread he wrote: “Justice isn’t about punishment. Justice, even after a crime occurs, is about allowing a community to heal. We need a prosecutor who wants to build justice, and to make our communities safer by using the evidence and the knowledge we have to heal them.” This is the kind of narrative-shifting work we need our candidates to do.
At the other end of the state, Hamilton County (which includes Cincinnati) will see, for the first time in twenty years, an election for prosecutor in which Deters is not on the ballot. Deters, who helped stoke public furor about the Dubose ruling, was recently appointed to the Ohio Supreme Court by Governor Mike DeWine, which left a vacancy in the office. While Deters himself had avoided being ousted, Hamilton County has seen an increasing number of Democrats winning judicial races, resulting in a flip of the appellate court and a split among trial-level judges. A strong candidate for prosecutor could help immunize voters to another round of electoral scare tactics rooted in crime and safety.
Ohio’s rural counties are also ideal places to expand support for progressive policies. A 2022 survey found that central and southeastern Ohio voters cared about a living wage, mental health and substance use treatment, infrastructure, health care and prescription costs, food security, and housing. Democrats often write off rural voters, but the survey highlights the power a progressive message could have in these areas.
If we want broad change throughout Ohio, whether it is the decriminalization of simple drug possession or an end to cash bail, we will need a much broader coalition of people to rally around these goals and push them past the finish line. That means we need a vision for all of Ohio that is not rooted in fear, but in health and stability. And we need a political party that recruits and uplifts candidates who are willing to work toward a future where everyone gets to be safe and free—and who know how to talk about that future in a way that persuades more Ohioans to believe in it.
Ohio Supreme Court architectural detail / Image: GmanViz/flickr
