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Putting Foster on Ice

Three years ago, in State v. Foster, the Ohio Supreme Court decided that the Ohio sentencing statutes pertaining to consecutive sentencing were unconstitutional because they required judicial fact-finding before such sentences could be imposed.  On Wednesday, in Oregon v. Ice, the US Supreme Court held that there was nothing wrong with requiring judicial fact-finding for imposition of consecutive sentences.  What now?

Both decisions, of course, stemmed from the latter Court's holdings in Apprendi v. New Jersey and Blakely v. Washington that a sentence based on factual findings that weren't made by a jury, other than a defendant's prior criminal record, violated his 6th Amendment right to a jury trial.  Back in 2006, Ohio law allowed a judge to impose consecutive sentences if he found that the harm of the multiple offenses was so great that a single prison term wouldn't adequately reflect the seriousness of the defendant's conduct, or that in light of the defendant's criminal history consecutive sentences were necessary to protect the public.  In Foster, the court held that requiring those findings ran afoul of Apprendi and Blakely, and excised them; since then, a trial court can impose consecutive sentences without making any findings at all.

Oregon's statute was slightly different -- the court could order consecutive sentences if it found the offenses didn't arise from the same course of conduct, or indicated the defendant's willingness to commit more than one offense, or caused a greater harm than a single offense.  But there's no question that if Oregon's scheme survives constitutional scrutiny, so would Ohio's.

Ice gets this term's award for the most unlikely alignment of judges:  Ginsberg wrote the opinion for the five-member majority, which included Alito, Stevens, Kennedy, and Breyer, while Scalia, Thomas, Roberts, and Souter dissented.  The majority found that Apprendi and Blakely didn't apply, because whether to impose consecutive sentences was traditionally a function not of the jury, but of the legislature and the courts.

That can be debated, and Scalia certainly does in his dissent.  But what isn't debatable is this:  the Ohio Supreme Court nullified an Ohio law because it believed the US Supreme Court would declare the law unconstitutional, and the US Supreme Court has just essentially held that it wouldn't have.   

What's more, the law the court struck down in 2006 is still on the books; despite the legislature having amended RC 2929.14 on no fewer than nine different occasions, the section on consecutive sentences has never been changed.

That puts trial and appellate judges on the horns of a dilemma.  Should they go back to imposing consecutive sentences under the statute as if Foster had never been decided?  There's certainly an argument to be made that Ice implicitly overruled Foster on that point.  On the other hand, there's the argument that Ice didn't involve Ohio's statute, and unless and until the US Supreme Court expressly rules on that statute,  Foster remains the law for Ohio judges.

For how long, though, is another question.  As I said, the statute is still on the books.  What if defense lawyers start objecting if trial courts don't follow the statute in handing down consecutive sentences?  Sooner or later, that issue is going to come before the Ohio Supreme Court again.  Could it follow Foster, and hold that the statute violates the 6th Amendment again, despite Ice's clear holding that it does not?  Could it hold that the statute violates Ohio constitutional law?  That would get it off the hook with Ice, but I doubt that the court wants to open up a whole 'nuther can of sentencing worms, as deciding that a parallel track of sentencing law existed under the Ohio constitution would do.  Could it overrule Foster and hold that consecutive sentencing does have to follow the statute, thereby reversing all the sentencings that were handed down in reliance upon Foster still being good law?

The last option is exactly what it should do.  As I mentioned last week, it's clearly dawned on the court that the post-Foster sentencing landscape is a disaster, and a large part of the reason for that is the unfettered discretion judges now enjoy in regard to consecutive sentencing.  As Justice Lanzinger noted in her concurrence in State v. Halston, a case affirming a 134-year sentence for a 24-year-old who'd committed three home invasions, it's no longer uncommon for a defendant to receive the functional equivalent of a life sentence without parole for a crime "where no one is killed or seriously injured." 

Lanzinger also appealed to the legislature to "repair the damage" to Ohio's sentencing scheme.   One can make a compelling argument that the biggest damage was to the concept of consecutive sentencing:  the decision on whether to impose sentences concurrently or consecutively is the single most significant decision a judge faces in sentencing, and the single biggest contributor to the disparity in sentencing results.

Ohio's 1996 sentencing reforms were supposed to create a system of guided discretion in sentencing.  That system is actually still out there, for the most part:  a bit more demanding application of the seriousness and recidivism factors under 2929.12, and a revival of the scheme for consecutive sentencing, will go a long way toward repairing the damage wrought by State v. Foster.  Let's see if the courts take advantage of that.

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