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Throwing away the key

There's not much question that Marquis Hairston was a bad guy.  Over a four-week period during the fall of 2005, he and some pals conducted three home invasion in the Germantown section of Columbus, terrorizing the inhabitants at gunpoint.  His spree started just seven days after he'd been released from prison for another crime.  Midway through his trial, he changed his plea to guilty on eleven first-degree and three third-degree felony counts, plus three three-year gun specs.

If there was any lingering doubt over the mess that is Ohio's sentencing laws in the wake of Foster, it was dispelled during the oral argument in the Ohio Supreme Court last week on Marston's resulting 134-year sentence.  That's right, 134 years.  The defense had argued that this violated the 8th Amendment's cruel and unusual punishment clause.  That might be so, except there's case law that says you only look at the sentence for a particular crime, not the composite sentence.  Plus, as Justice O'Connor pointed out, Hairston had committed two violent felonies prior to this one.  In California, he would have gotten a life sentence based on their three strikes law.  And the US Supreme Court had upheld that law against a constitutional challenge.

The sentencing reforms enacted back in 1996 basically struck a bargain:  in return for more power flowing to the judiciary on sentencing (mainly by abolition of parole), that power would be subject to "guided" discretion:  judges were to consider various factors, and there were limitations placed on their power to impose more-than-minimum, maximum, or consecutive sentences.  The first part of that bargain is intact, but Foster eliminated the second part of it.  I started doing this blog about three months after Foster came down.  In the time since, I can think of two cases I've seen where a sentence was reversed.  And in one of them, it was reversed because the court gave probation instead of prison time.  Judges now essentially have unfettered discretion to impose sentences, and the Supreme Court will likely put an exclamation point on that when it comes down with its decision in Hairston's case a few months from now. 

Marques Hairston has been given the functional equivalent of life imprisonment without parole.  Shock probation and parole, both of which would have shortened his sentence before the 1996 sentencing "reforms," are no longer available.  (Judicial release, the successor to shock probation, isn't available to a person serving a sentence of more than ten years.)  In fact, back then, Hairston couldn't have gotten more than 15 years in prison; that was the maximum cumulative sentence which could have been imposed for the crimes he committed.

Not that I'm shedding any tears about that.  The fact that the Marques Hairston show is not going to be coming to a neighborhood near me is just fine.  This was hardly an isolated incident of bad judgment.  In addition to the two previous convictions, Hairston's post-release crime spree spread beyond Franklin County; in oral argument it came out that he's also doing 59 years for another batch of offenses out of Scioto County.  Even given his somewhat tender age of 24, whatever chance there was of redeeming Hairston, that ship sailed a while ago.

Still, from my vantage point of skimming through the cases each week, it appears that harsher sentencing is not an isolated occurrence.  I frequently see double-digit sentences handed down in cases which, here in Cuyahoga County, would result in a prison term half or even less of that. 

The loser in all that isn't just the concept of consistency of sentencing, which was at the heart of the 1996 reforms:  the idea that similar sentences would be handed down for similar crimes.  The taxpayers of Ohio are going to be paying the tab for Marques Hairston's incarceration long beyond the age when he's a threat to anyone.  Given the proposed passage of a three strikes law here in Ohio, and the contemplated increase in powder cocaine penalties, it's likely that a lot more people are going to be sent to prison in the coming years, and are going to be staying there for longer periods.  Ohio's spending for prisons increased five times faster over the past twenty years than its spending for education.  It doesn't look like that's going to change anytime soon.

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