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Sentencing: where to from here?

Yesterday I discussed the recent 8th District decision in State v. Quinones, and what ramifications it might have on search and seizure law.  At the end, I mentioned in passing that the case is also helpful in that it holds that court costs can't be imposed on each charge, but only on a single case.  Silly me and my mixed-up priorities.  As this morning's fish wrap makes clear, the significance of the case does not lie in such trivialities as the 4th Amendment to the United States Constitution, but with the impact that last point about court costs might have on municipal finances.  According to the news accounts, various and sundry city officials described the decision as "devastating" and having a "huge impact" on their revenues.  Boo hoo.  It's no secret that many communities around here look at traffic enforcement the same way the Girl Scouts look at cookie sales.  It shouldn't have taken three appellate judges to figure out that there was something wrong with a system that could, as in Quinones' case, impose more in court costs than in fines. 

I had an oral argument in the 8th District here last week, and I hadn't gotten more than a sentence into my spiel before the panel began bombarding me with questions.  We went back and forth the entire time on the range of issues presented in the appeal, with their forth usually getting the better of my back.  I enjoy that sort of thing.  So yesterday I have an oral argument before the 9th District up in Summit County, and none of the three judges said a peep the entire time.  A little bit unnerving.

The case that I had last week, which I briefly discussed here, involved a sentencing issue.  I also filed a brief in the Ohio Supreme Court last week on that issue in another case.  (Helpful Hint:  the brief was due on Thursday.  The last pick-up at the Kinko's/Fed Ex on East 9th St. is 9:00 PM.  We got it there at 8:45 PM on Wednesday.  Plenty of time to to spare.)  Which got me to thinking about sentencing.  As just about everybody realizes, it's a mess. 

Any sentencing scheme involves tradeoffs between judicial discretion and uniformity.  You don't want judges handing out wildly disparate sentences for the same crimes, but you don't want every judge to hand out the same sentence for the same crimes, either; a judge should be able to take into consideration the specific facts regarding the defendant's history and the harm caused by the crime.

The passage of the SB 2 sentencing reforms in 1995 was supposed to solve that problem.  It still allowed a sentencing range, but it defined the criteria judges were supposed to use in fashioning a sentence.  What's more, it achieved some consistency in sentencing by virtue of the various presumptions it created.  That one defendant would get probation for a serious crime while another would be imprisoned became less likely because there was a presumption of imprisonment for 1st and 2nd degree felonies.  Yes, one judge might still give out prison sentences to a first offender where other judges wouldn't, but the sentence was more likely to be a minimum one, because there was a presumption of a minimum sentence for offenders who hadn't been to prison before.  Yes, some judges might sentence toward the upper range while other judges would sentence toward the lower range, but because of the findings that had to be made to impose maximum or consecutive sentences, those sentences were rare, and terms of imprisonment tended to be bunched toward the middle.

Of course, all that went out the window with the Ohio Supreme Court's determination in Foster that those presumptions were unconstitutional because they were "judicial fact-finding," contrary to the US Supreme Court decisions in Blakely and Apprendi.  Now, a judge doesn't have to make any findings before giving a defendant more than minimum time, or maximum time, or consecutive time.  (Interestingly, the presumption in favor of imprisonment for 1st and 2nd degree felonies was not affected by Foster.)

This is a classic example of the Arab curse, "may your wishes come true."  Following Blakely, defendants argued that Ohio's sentencing scheme violated that decision because it allowed judges to find facts that only juries were allowed to.  So the Ohio Supreme Court comes along and says, "Yeah, you're right, so we'll just take out the portion of the law that requires those findings to be made," and the net result is that a defendant's Sixth Amendment jury trial right is protected, at the cost of making it easier for judges to hand out maximum or consecutive sentences.

Or, really, any sentence at all; as one of the judges on my panel last week noted, the major effect of Foster might have been to abolish judicial review of sentences.  That may be overstating it, but not by much; we've pretty much returned to the pre-1995 era, when sentences were only reviewed for abuse of discretion.

And maybe, just maybe, that's all you're ever going to get.  We've conducted a grand experiment in this country with sentencing over the last twenty-five years, and the results have not been particularly edifying.  The Federal Sentencing Guidelines were supposed to establish some consistency, but that was achieved at the cost of imposing sentences in many cases in which even the judge who imposed it did not believe it was fair or appropriate.  The Ohio sentencing scheme was supposed to introduce consistency while still allowing some discretion, and now lies in tatters.  I don't know how you repair it.  I don't know if you can.  And, given the results to date, I'm not sure you should.

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