I’ll be on vacation next week, and I’m going to put off doing a comprehensive review of the USSC cases until after I get back.  One of the cases on that list is Oregon v. Ice, and I wanted to get a jump start on that, since that could have a big impact on Ohio sentencing law.

Three years ago, in State v. Foster, the Ohio Supreme Court threw out much of Ohio’s sentencing law, including those portions which required a judge to make certain factual findings before imposing consecutive sentences.  Ice presented the US Supreme Court with an Oregon statute much like Ohio’s:  before imposing consecutive sentences, a judge had to make factual determinations, such as whether the crimes were part of a continuous transaction, and whether they created separate harms.  Contrary to what the Ohio Supreme Court had determined in Foster, the Court in Ice held there was no constitutional prohibition to requiring judges to make those findings in order to impose consecutive sentences.

As I explained when Ice came down in January, that decision unquestionably impacts Foster.  To date, Ice has been cited in six Ohio appellate decisions, although most haven’t come to grips with its implications.

The first mention was in a 2nd District case, State v. Jones, just a month after Ice came down.   It completely missed the point, determining that Ice

held that the Sixth Amendment does not inhibit states from assigning to judges, rather than to juries, the finding of facts necessary to the imposition of consecutive, rather than concurrent, sentences for multiple offenses.

That’s true as far as it goes, but it ignores the larger point that Ice holds that state legislatures can impose limitations on a judge’s discretion to impose consecutive sentences, by requiring him to find certain facts before he does so.  The same day the 4th District handed down State v. Starrett, which misread Ice even more:  it determined that Ice meant that “Ohio’s revised sentencing scheme, post-Foster, which essentially allows trial judges the discretion to impose or not impose consecutive sentences, passes constitutional muster.”  Again, what Ice actually meant was that there was no problem with Ohio’s sentencing scheme for consecutive sentences before Foster was decided.

The later decisions have shown a developing awareness of Ice’s implications.  In May, in State v. Reed, the 8th District cited Ice in a footnote, noting that the Court had upheld “a judicial fact-finding statute similar to RC 2929.14, calling into question the Foster court’s abrogation of” that statute.  Last week in State v. Robinson the defendant had presented the issue squarely — “that Oregon v. Ice abrogates State v. Foster’s decision that declared the consecutive sentencing section of Senate Bill 2 unconstitutional” — but the 8th chose to “decline to depart from the pronouncements in Foster, until the Ohio Supreme Court orders otherwise.”

The 10th District came to the same conclusion in a couple of cases, State v. Franklin and State v. Mickens.  Franklin peremptorily dismissed the Ice argument, noting that until the Ohio Supreme Court reconsidered Foster, that decision was binding.  The Mickens court engaged in a much lengthier analysis, finding that in light of Ice, “it may now be necessary to take another look at some of Ohio’s current sentencing statutes, as well as some of those which immediately preceded the decision in Foster,” but arriving at the same conclusion:  until the Supreme Court reversed or modified its holding in Foster, that’s what the law is.

Is it?  You could make an argument that Ice implicitly overruled Foster’s holding on Ohio’s consecutive sentencing scheme; there’s no discernible difference between the Ohio statute struck down in Foster and the Oregon statute upheld in Ice.  There’s a lengthy counterargument to that — isn’t there always? — but there’s not much sense getting into it in detail, because there are very few appellate judges, let alone trial judges, who are willing to buck a decision of a higher court, no matter how solid the reasoning for doing so.  Any change is ultimately going to have to come from the top.

Will it?  Back in April, Oregon v. Ice was brought up during oral argument in the Ohio Supreme Court in State v. Hunter  (discussed here).  Hunter involved the question of whether Foster did away with the add-on sentence for repeat violent offender specifications, and the prosecutor argued that Ice permitted judicial fact-finding for imposition of the additional sentence.  I don’t think that’s correct, for reasons I explained at the time, but what I found notable was Justice Lanzinger’s comment that perhaps the court should revisit Foster in light of Ice.

That ultimately will happen; it’s just a question of when.  And when it does, I’m betting that the Ohio Supreme Court finds that the statutes on consecutive sentencing it struck down in Foster aren’t unconstitutional after all, but should be enforced.  (Those statutes are still there; despite amending RC 2929.14 eleven times since Foster, the legislature has never changed the wording on the subsection dealing with consecutive sentencing.)

And that will be the single best thing to happen to Ohio sentencing law in a long time.  Even the Ohio Supreme Court, Lanzinger in particular, has noticed the gross disparity in sentences that has arisen since Foster gave trial judges unfettered discretion in sentencing.  That arises much more from the decision as to whether to run the sentences concurrently or consecutively.  The maximum sentence you can get in Ohio for any one crime — excepting murder, child rape, and a few others – is ten years.  In that context, it’s not a big deal if one judge would give you five and the other ten.  But the maximum consecutive sentence you can get is, well… ask Marquis Hairston, who’d doing 134 years for three home invasion robberies.  Ending judges’ unfettered discretion to stack sentences would go a very long way toward ending the problem of gross disparity.