Six weeks ago, I did a post on HB 86, the new Ohio sentencing reform statutes. The bill made its way through the Senate, and was passed by the General Assembly on Friday, and signed yesterday by Gov. Kasich. It takes effect in 90 days.
The purpose of the bill is to reduce the number of people in Ohio's prisons; currently, there are slightly more than 50,000 inmates residing in facilities designed to house 38,000. The bill does that in a number of ways: making some offenders less likely to go to prison in the first place, making it harder for judges to send people to prison for long periods of time, and making it easier for inmates to get out. For the most part, my earlier post contains the major changes the bill makes. One major change in that regard was that the House bill had lowered the punishment for a third degree felony from 1 to 5 years to either 9, 12, 18, 24, or 36 months. The Senate Bill kept those, but added 4 and 5 years as possible penalties as well. Another change was a provision that eliminates the ten-year cap for judicial release; now, an inmate can file for judicial release regardless of the length of his sentence, as long as he waits until half of the nonmandatory portion of it is served. And the presumptions in favor of prison in fourth degree felony drug cases were eliminated, and the mandatory requirements for most third degree felony drug offenses were reduced to mere presumptions.
I also did a post, though, on the changes the bill made in response to the Supreme Court's decision in State v. Foster. There, the Senate did make some significant changes.
The most significant was to trash just about everything the House had done in that regard. The House bill restored criteria for determining whether a defendant should be given more than minimum, maximum, or consecutive sentences. Those provisions had been struck down in State v. Foster, which had held that they required judicial factfinding, in violation of the US Supreme Court's decisions in Apprendi v. New Jersey and Blakely v. Washington.
The legislature was free to do whatever it wanted on the consecutive sentencing issue as a result of the US Supreme Court's 2009 decision in Oregon v. Ice, which had declared that there was there was no constitutional impediment to requiring judicial factfinding for imposition of consecutive sentences. Hodge had no application to more-than-minimum or maximum sentencing, though. In my earlier post, I expressed the concern that the changes in the new law on those issues weren't that much different from the ones in the old struck down in Foster, but said they'd probably make the grade because the Supreme Court senses that it made bad law in Foster -- the findings required in the new law (and in the old) are the type of considerations judges have always made, unlike the findings struck down in Blakely and Apprendi.
The Senate apparently felt my assurances in this regard were insufficient, and simply deleted the portions of the House bill dealing with more-than-minimum and maximum sentences. Even worse, they threw out the House's formulation on consecutive sentencing and reinstated the ones struck down in Foster. The House version would have mandated that a judge could impose consecutive sentences "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."
Now, that "proportionate" stuff is very flexible, but look at the words I bolded. Note that they're in the conjunctive: the judge has to make findings specific both to the offense and to the offender. I think a pretty good argument could've been advanced that these mirror RC 2929.12: whether the crime is more or less serious (divisions (B) and (C)) concern the offenses, and the recidivism factors ((D) and (E)) concern the offender. The upshot? A judge couldn't give consecutive sentences unless he found that the crime was more serious, and that the defendant was more likely to reoffend.
Whether that's a correct analysis is mooted by the Senate's going back to the pre-Foster law, which also speaks in generalities: whether a consecutive sentence is "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." To be sure, the judge has to make one (out of three possible) additional finding, and two of those are "hard" factors: the defendant was on bond, probation, PRC, or parole at the time he committed the crime, or had a sufficient criminal history to warrant consecutive sentences. But one of those three is butter-soft: "the harm caused by the multiple offenses was so great that no single prison term adequately reflected the seriousness of the conduct." That leaves an awful lot of wiggle room.
There's another change to the sentencing statutes which could prove significant. RC 2929.11 has been revised to add the language in bold:
A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
At first blush, that's not much different from the present requirement in RC 2929.13(A) that "the sentence shall not impose on unnecessary burden on state or local offenders." But it's stronger: first, it includes the language about "using the minimum sanctions," and secondly, it now makes it an overriding purpose of sentencing. Still, appellate arguments based on the "unnecessary burden" language when it was part of 2929.13 went nowhere, and given the obsequious deference that appellate courts have shown on 2929.11 issues in the past, I'd be surprised if that changes. It might be more effectively used at the trial level, though.
A couple of weeks ago, I mentioned an 8th District decision which rejected an ineffective assistance of counsel claim based on the trial attorney's failure to file a sentencing memorandum; the court noted, accurately, that the "vast majority" of defense attorneys rely on arguments at sentencing. I'm not suggesting there's anything wrong with that, but the new sentencing law might warrant some rethinking on that issue. The new law isn't merely tinkering here and there; there's no question that the legislature has made a determination, with this bill, that judges should be more reluctant to sentence people to prison, and favor sending them for less time, than before. It wouldn't be a bad idea to throw together a couple of paragraphs spelling that out, and then analyze the factors applicable to your client's case, for submission to the judge. At the very least, it's an argument that should -- must -- be made at sentencing.