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A cry for help

Back in January, I did a post about the oral argument in the Ohio Supreme Court that week in the case of State v. Hairston, in which the 10th District had affirmed a 134-year sentence for a defendant convicted of three home robberies.  I'd predicted that the Court would have little trouble upholding the sentence, a prognostication that isn't going to make anyone forget Jean Dixon (unless you already have):  given the condition of Ohio's post-Foster sentencing law, betting that a particular Draconian sentence will be sustained is about as risky as predicting that a Cincinnati Bengals player will be arrested sometime this week.  And last week, the Court confirmed that, unless Hairston gets a commutation or pardon from the governor, he's going to spend the remaining fifty or sixty years of his life (or more; he's in his mid-20's) behind prison walls.

Indeed, it's hard to see how Hairston could have come out differently.  He argued that the maximum consecutive sentences he received created a cumulative sentence that was "grossly disproportionate" to the nature of the crimes he'd committed, thus violating the prohibition on cruel and unusual punishment.  One problem:  under 8th Amendment analysis, the cumulative, consecutive nature of the sentences is disregarded; only the disproportionality of the sentence for an individual crime is considered.  This might seem illogical at first glance, but it's not; as Justice O'Donnell wrote for the unanimous court, quoting another case,

If a proportionality review were to consider the cumulative effect of all the sentences imposed, the result would be the possibility that a defendant could generate an Eighth Amendment disproportionality claim simply because that defendant had engaged in repeated criminal activity.

What's interesting about Hairston, though, is not the majority opinion, but the concurring opinion by Justice Lanzinger, which was joined in by Chief Justice Moyer and Justice Pfieffer.  Lanzinger shed no tears for Hairston -- he was a bad guy, by anybody's definition -- and fully agreed with the majority's analysis of the legal issues.  She noted, though, that Foster had left the trial judge in Hairston's case with unfettered discretion in determining his sentence, and that

the majority's affirmation of Hairston's sentence can be interpreted as effectively legitimizing noncapital life sentences and extending them to situations where no one is killed or seriously injured.

The remainder of the opinion is a plea for "the General Assembly to act to repair the damage done to Ohio's criminal sentencing plan as a result of State v. Foster."

This is somewhat akin to having the Supreme Court justices -- or at least the three joining in the concurrence -- scrawling "STOP US BEFORE WE DO THIS AGAIN" in lipstick on a bathroom mirror.  The Court isn't as powerless as it may seem; it could have made the trial court's recitation of the seriousness and recidivism factors under 2929.12 more meaningful, instead of reducing them to rote incantation.  (And not even that; there are appellate decisions out there holding that even if the judge doesn't say anything about those factors, it will be "presumed" -- pretty much conclusively -- that he considered them.) 

Still, Lanzinger's got a point:  any real sentencing reform has to come from the legislature.  What's more, Lanzinger's concurrence, and that of Judge Gallagher of the 8th District in another sentencing case last week, which I discussed here, may represent a tipping point in Ohio sentencing law.  I started this blog a little over two months after Foster came down, and I wouldn't even want to think about how many appellate opinions on sentencing I've read since that time.  My good buddy Lexis tells me that the phrase "state v. foster" appears in 2156 Ohio cases since March 1, 2006.  I'm betting that in 2150, the sentence was upheld, and in 2149, the appellate court's analysis didn't go much farther than, "Hey, it's legal, whaddya want from us?"

So it may be that some judges are beginning to realize the havoc that Foster wrought, and will begin beseeching the legislature to do something about it.  And it may be that that might happen; Lanzinger notes that "the General Assembly is considering legislation that allows for the diversion of more nonviolent offenders as well as greater clemency powers for the executive branch," and that "it may also well consider rewriting the statutes to restore guidelines for imposing consecutive sentences."

Or it may not.  As I mentioned a few weeks ago, any movement to reduce the harshness of consecutive sentences post-Foster is going to collide head-on with the growing desire to enact some type of "three-strikes" law in Ohio.  Tomorrow, we'll take a look at what California's experience with that has been.

One thing to keep in mind in all this, though, is Bensing's Ninth Law:  No one ever lost an election by being hard on crime.

You don't want to know what the other eight are.

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