Opinion: A Bad Court Ruling Almost Finished Off Public Safety

By Megan Shanahan

Just two years ago, the Ohio Supreme Court gave judges like me some startling news: public safety had died. Its obituary was announced in a narrow Supreme Court opinion that prohibited judges from considering public safety when setting bail for people charged with dangerous crimes. 

In that case, Ohio Supreme Court Justice Michael Donnelly – a strong supporter of allowing defendants who pose a serious danger to the community to be released on bail -- wrote, “The fact that a defendant might have committed a terrible crime does not allow us to ignore the law.” He got the law wrong.

I went to the Ohio General Assembly to tell lawmakers why Donnelly’s logic was incorrect. I was the only judge in the state to do that. I testified that an amendment to the state constitution would give judges the discretion to set bail at an amount that keeps vulnerable people safe, secures the defendant’s appearance at trial, and promotes public confidence in the justice system. One particular lawmaker who heard my arguments – Senator Cecil Thomas -- was notably unpersuaded. 

Thomas agreed with Donnelly’s opinion and Thomas falsely claimed, “the amendment would pave an unnecessary shortcut for lazy prosecutors to deny defendants due process.” He even published partisan talking points calling the amendment somehow “dangerous.” 

But I didn’t let Thomas’ hyperbole stop me. I campaigned publicly for the amendment and repeatedly drew attention for the need to give judges tools to keep people safe when making bail decisions. I knew that the passage of this constitutional amendment would correct Donnelly’s mistake and protect Ohio families from violent offenders.

Here’s the good news – in the 2022 statewide election, Ohio voters fixed the problem. They sided against Justice Donnelly and Senator Thomas. Ohio voters didn't just disagree with those two; they roared back with a loud mandate for safety -- the public safety amendment passed with 77% of the vote. To put it bluntly, Ohioans fixed what Donnelly and the three justices who helped him broke. 

The passage was a clear mandate for safety and a rejection of judicial overreach. Now the Ohio Constitution makes explicit what I always knew to be right – it’s not justice if someone arrested for a violent crime can be back on the street the next day.

We saw this recently, when two New York City police officers were assaulted near Times Square. Five illegal immigrants were arrested and then immediately released from jail. NYPDchief of patrol John Chell wanted the attackers held until trial and pointed out that ignoring public safety would make things worse. “You want to know why our cops are getting assaulted? There are no consequences,” he said.

Thomas Sowell, a noted black scholar and author, has observed that legal and constitutional protections in place for decades “can be lost as a result of judicial rulings based on seeking particular social results in accordance with judges’ social visions.” It’s almost as if Professor Sowell was thinking of the judicial error Justice Donnelly made in the case that nearly killed public safety.

Ohioans know that public safety is a fundamental pillar of a civil society. And by amending the Ohio constitution, voters made sure that trial court judges like me are free to consider public safety, and yes, use our common sense, when setting bail. 

Recently, media outlets reported on two high profile assaults in downtown Cincinnati, which is part of the county where I serve as judge. News reports showed images of large groups attacking two citizens. City leaders condemned the violence, and the local Fraternal Order of Police leader praised the judge who assigned a high bond to one of the suspects. No surprise there.

But, in response to these attacks, Cecil Thomas – the lawmaker who had been previously unpersuaded by my efforts to correct the Donnelly mistake -- said, “I'm fearful that we're going to see a violent incident worse than what we've already seen.” I’d like to be optimistic enough to presume that Thomas has finally seen the light on the issue of public safety.

But what will history say of Justice Donnelly's ruling? It was out of touch and will never be more than a legal footnote. Ohio's message was a rebuke of Donnelly's folly. Now judges can use their gavel for good—keeping threats at bay. 

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Hamilton County Common Pleas Court Judge Megan Shanahan is a Republican candidate for Ohio Supreme Court.

This column appeared in the Cincinnati Enquirer on Sunday February 18.