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Farewell to Foster?

As every schoolboy knows, the sentencing reforms contained in the 1996 revisions to the criminal code were pretty much trashed in State v. Foster.  The reforms had created presumptions in favor of minimum sentences for first offenders, in favor of concurrent sentences, and against maximum sentences; Foster declared all that a violation of the Supreme Court's decisions in Apprendi and Blakely, which had essentially prohibited judicial factfinding in sentence determination.  Three years later, in Oregon v. Ice, the Supreme Court gave the go-ahead to a legislature's requiring judicial factfinding before imposition of consecutive sentences, but last December, in State v. Hodge, the Ohio Supreme Court rejected the argument that Ice had automatically revived Ohio's statutes on that subject.  It was up to the legislature to do that, said the court.

And that's apparently just what the legislature intends to do.

I talked yesterday about the new sentencing reform package passed by the Ohio General Assembly last week, HB 86.  In addition to the changes I discussed, the bill also takes aim at restoring the three parts of the 1996 reforms severed by Foster.  Let's take a look at each one.

Minimum sentences.  RC 2929.14(B) had contained a provision creating a presumption in favor of minimum sentences for those who hadn't previously served a prison term.  There were a whole host of exceptions, of course -- repeat violent offenders, major drug offenders, repeat OVI offenders -- and there was of course the usual safety valve:  the court could impose a longer term if she found that "the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."  Still, it did provide some guidance to judges, guidance which was swept away by Foster.

HB 86's provisions are almost identical to that; subject to the same exceptions,

The court imposing a prison sentence upon an offender who has not served, or is not serving, a prison term shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section if the shortest term is consistent with the purposes and principles of sentencing set forth in section 2929.11 of the Revised Code.

Keep in mind that Ice only applies to consecutive sentencing; at least at this stage, Foster's determination that judicial factfinding for imposition of minimum or nonmaximum sentences runs afoul of Apprendi/Blakely is still good law.  Now, maybe it's me, but I can't see much difference between a judge determining that the shortest prison term will demean the seriousness of the offense or inadequately protect the public, and determining that the minimum sentence isn't consistent with the principles and purposes of sentencing.

Maximum sentences.  HB 86 works much of the same trick here.  The law struck down in Foster limited maximum sentences to offenders which the court found had "committed the worst form of the offense" or posed "the greatest likelihood of committing future crimes."  The new law simply specifies that the court can impose the longest term if that is "is consistent with the purposes and principles of sentencing."

Are the changes for minimum and maximum sentences sufficient to clear the Foster hurdle?  Probably so, because I think the court senses that Foster, in this respect, was bad law.  "Findings of fact" -- for example, the weight of drugs, whether a crime was committed with a racial animus (the issue in Apprendi), or that the defendant had acted with "deliberate cruelty" (the issue in Blakely) -- are one thing, but the types of "findings" that were required by Ohio law, and would be required by HB 86, are the types of decisions that judges have always made -- determining the length of a prison sentence by considering the four pillars of any logical sentencing scheme:   deterrence, rehabilitation, punishment, and protection of society. 

Consecutive sentences.  This is the area where, given Ice, the legislature has virtually unbridled freedom.  What's more, it's here that disparity in sentencing is the biggest problem.  Sure, one judge can give a defendant eight years on a particular offense where another judge would give the same defendant two.  But when you're talking about one judge giving a defendant consecutive sentences where another judge would make them concurrent, you can be literally talking a difference of decades.  So what does HB 86 do? 

Let's take a look at the old law first.  The law contained a preference for concurrent sentences, but allowed the court to impose consecutive sentences if it determined that was "necessary to protect the public from future crime or to punish the offender" and "is not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public."  Even then, the court had to find one additional factor: 

  • the offender was on bond, probation, post-release control, or parole at the time he committed the crime
  • his criminal history demonstrated that consecutive sentences were necessary to protect the public, or
  • the harm caused by the multiple offenses was so great that no single prison term adequately reflected the seriousness of the conduct. 

The new bill eliminates the three additional factors, and provides

the court shall first consider imposing the prison terms as concurrent sentences.   The court may require the offender to serve the prison terms consecutively only if the court finds in language specific to the offender and the offenses that consecutive terms are necessary because they are proportionate to the seriousness of the offender's conduct and to the danger of future crime of the offender poses to the public.

To be sure, that gives a judge a lot of wiggle room; whether something is "proportionate to the seriousness of the offender's conduct" and the "danger of future crime the offender poses to the public" are in the eye of the beholder.  But I think there's a good argument to be made that the new statute imposes substantially greater limitations on the ability of judges to impose consecutive sentences than the old law did.

I'll get into that in more detail when and if HB 186 becomes law.  As I said yesterday, a lot of it will be, simply because of monetary concerns.  The revisions concerning minimum, maximum, and concurrent sentencing are certainly part of that, since they affect the length of prison sentences.  Whether those revisions survive the Senate, and in what form, is the another question.  We'll deal with that when the time comes.

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