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After the Revolution

In January of 2005, the US Supreme Court revolutionized Federal sentencing law with its decision in US v. Booker, which held that the Federal Sentencing Guidelines were no longer mandatory, but merely advisory.  Thirteen months later, in State v. Foster, the Ohio Supreme Court revolutionized Ohio sentencing law by holding that there wasn't any.

That's a bit of a stretch; Ohio law, of course, still provides for minimum and maximum sentences, and a whole host of add-ons:  penalties for being a repeat violent offender, for having a gun, using a gun, etc.  But the statutes spelling out how sentences were to be calculated, and what was to be taken into consideration in determining a particular sentence, have been eviscerated by Foster's excision of the provisions which required judges to make specific findings in order to impose non-minimum, maximum, or concurrent sentences.

The parallel development of Federal and Ohio law since those decisions has been remarkable.  The biggest complaint against the mandatory Guidelines -- that they virtually eliminated judicial discretion in sentencing -- has been largely alleviated.  The Guidelines still serve as a starting point for computation, and there are guides on the judge's discretion, and some control by the appellate courts over what a judge can do.  Virtually every day, on Doug Berman's Sentencing Law & Policy blog or on How Appealing or Appellate Law & Practice, you can find cites to considered, thoughtful opinions from Federal courts on sentencing issues, attempting to fashion a sentence which is proportionate to what similarly-situated defendants might receive, and which is reasonably calculated to achieve the goals of any rational sentencing scheme.

And every week, you can look through Ohio decisions and find appellate courts rubberstamping whatever a trial court does.  Typical is last week's 8th District decision in State v. Bell

As I mentioned yesterday, Bell involved they typical Cleveland felonious assault case, -- a bunch of guys shooting at a car filled with a bunch of other guys -- and featured assignments of error regarding the trial court's alleged failure to merge certain convictions (turned out he had) and the ex post facto application of Foster, which of course was rejected for the hundred-and-umpteenth time.  The third assignment of error argued that "the court abused its discretion in sentencing defendant without any consideration of the statutory criteria."  This is the entire portion of the opinion disposing of that assignment:

Bell argues that his constitutional rights were violated when the trial court failed to consider statutory criteria. We disagree.

"[T]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give reasons for imposing maximum, consecutive, or more than the minimum sentences."  Foster, supra.

Therefore, Bell's third assignment of error is overruled.

That's it.  Notice that there is nothing to suggest that the trial court actually did consider the statutory criteria.  There's no quotations in the opinion from the sentencing transcript, no attempt to show that the judge at least invoked the talismanic incantion about "having reviewed the purposes and principles of sentencing under 2929.11 and the seriousness and recidivism factors of 2929.12..."  What's even more worrisome is that there's nothing in the opinion to suggest that the trial court has to consider them, although that's what the statutes plainly say.

Worrisome?  Well, on second thought, not so much:  Bell is simply the natural evolution of what's been happening since the day Foster came down.  Last year, in State v. Muhammed, the 8th District did hold that "in exercising its discretion, the trial court must consider the factors set forth in R.C. 2929.12," but then decided that the trial court "is not required to expressly state on the record" how he considered those factors, and concluded that "where the record is silent there exists a presumption that the trial court has considered the factors."  How would you ever overcome that presumption?  It's not like you get to call the judge to the witness stand and cross-examine him about it, or put on other evidence.  So Bell just essentially decides to eliminate the middleman:  if the judge doesn't have to mention the criteria and we're going to impose pretty close to a conclusive presumption that he's considered them, why bother discussing the subject at all?

The problem, of course, is that we no longer have a rational sentencing scheme in Ohio.  There's lip service paid to "principles" and "criteria," but none of it means anything; a judge is free to decide on whatever sentence satisfies his whims that particular day.  In fact, as I pointed out a month ago, judges are even freer to impose Draconian sentences than they were before the sentencing reforms in 1996; back then, a judge's discretion was circumscribed by parole, shock probation, shock parole, and a 15-year maximum on cumulative sentences.  All of those are gone now.

What we're left with is that the primary factor in determining whether your client winds up with probation or imprisonment, with four years or forty years, is not the facts in the case or the principles of sentencing or the seriousness and recidivism factors, it's the name of the judge that the computer randomly assigns your client in the arraignment room.  And that capricousness is eventually going to erode people's confidence in a justice system.

It's become abundantly clear in the two years since Foster came down that the courts aren't going to clean up this mess.  That leaves it up to the Ohio legislature.

That's a pretty scary thought, huh?

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