Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


SB 337 and fresh chances

If you're marketing beer, the major statistic you need to know is that 80% of beer is consumed by 20% of the consumers.  If you're running a criminal justice system, the major statistic you need to know is that 80% of crimes are committed by people who've committed crimes before, and often have been imprisoned for doing so.

For a long time, the response of our criminal justice system to that statistic was to lock more people up for longer periods.  There's a limit to how much you can do that, though; overcrowding in California prisons led to last year's Supreme Court decision in Brown v. Plata (discussed here), which will result in the release of about 46,000 inmates.  And even without that, you can't keep people locked up forever; this year, about 8,000 people will be released from Ohio prisons and will be returning to their neighborhoods.  If you can't keep them locked up, you have to try to reduce the chances of them committing another crime, which is why Re-Entry is the New Big Thing in criminology.

There are a lot of aspects to that.  Maintaining the inmate's ties with the community is one way; somebody with a family to come back to and a support system in place is a lot less likely to get in trouble.  Monitoring the ex-convict -- making sure he doesn't hang out with the wrong people, gets the drug or mental health treatment he needs -- is another.  But the biggest is getting him a job; people with jobs commit far fewer crimes than people without them.

And that's where newly-enacted SB 337, which will take effect September 28, comes in.  It allows an ex-convict to avoid certain collateral sanctions of a conviction, and expands eligibility for expungement.  We'll take a look at that today.

One of the ways that a conviction hurts your job opportunities is that it precludes you from getting a license which, in today's world, you need just to work a number of jobs.  (Today's economics lesson:  "barriers to entry."  Ever wonder why you need a license to put makeup on people's faces?  Basically, the people who are cosmetologists got the government to pass regulations requiring you to have a license to do that, as a means of limiting competition.)   Even lack of a driver's license can severely limit your employment possibilities. 

All that's addressed in a brand new section, RC 2953.25, which creates the concept of "limited relief."  Basically, it allows an individual to petition for an order which removes certain collateral sanctions, such as loss of a license.  The process is somewhat complicated -- hey, there's a surprise, right? -- with it being initiated by filing the petition with the Department of Rehabilitation and Corrections.  The Department notifies the prosecutor, reviews the petition, and, if it deems it worthy, sends it off to the sentencing court for the ultimate determination.  The court reviews it, and can grant it if in its discretion doing so would "materially assist the invididual in obtaining employment, education, housing, public benefits, or occupational licensing," that the individual needs that in order to "live a law-abiding life," and doing so wouldn't create an "unreasonable risk to the safety of the public or any individual." 

There are a number of limitations here.  You can't get sex offender classifications removed, driver's licenses aren't going to be restored if the offense involved driving under the influence of alcohol or drugs (which includes vehicular homicide and assault offenses), and health care professionals have a tough time with it; they can't even get their license restored if it was imposed for failing to pay child support.   Even if granted,  the limited relief doesn't restore your right to be a juror or to hold public office.  It's automatically revoked if you commit a felony.  Good news for employers:  the limited relief order provides immunity for a claim of negligent hiring.  One more thing:  the bill prevents a lot of regulatory agencies from denying licenses to applicants who've been convicted of crimes, unless they were crimes of "moral turpitude," or various disqualifying offenses, mostly serious crimes.

It's not clear how involved attorneys are going to be in this process.  But we're likely to get calls to clients about it, and it's something that you should tell your clients about when you're representing them in their criminal case.  We all have a vested interest in making sure these people succeed, and letting them know about their options here is important.

Of course, the easiest way of making sure people who've got criminal records get jobs is eliminating their criminal record, and the statute also makes several changes to the expungement laws.  No more "one and only conviction" requirement; now, expungement is available not only to first offenders but to "eligible offenders," meaning someone who doesn't have more than one felony and one misdemeanor conviction, or not more than two misdemeanor convictions that aren't the same offense.  Nothing else in the expungement statute has been changed:  what constitutes an offense is the same (traffic violations don't count), what can't be expunged is the same (sex offenses, crimes of violence, drunk driving).  A few years ago, the legislature precluded expungement in cases where the victim was 18 or younger; the new statute excludes child non-suppport convictions from that prohibition.

SB 337 makes another change regarding child support.  In the past, imprisonment has been regarded as "voluntary unemployment" for child support calculation:  the tab keeps runninng during incarceration.  RC 3119.05(I) changes that:  for the most part, a finding of voluntary unemployment is precluded as long as the parent is incarcerated for more than twelve months, has no other available assets, and wasn't imprisoned for a neglect or abuse offense involving that child.

The legislature also used SB 337 to do some housecleaning in HB 86.  One of the exceptions to the "mandatory probation" provisions for 4th and 5th degree felonies was drug cases; now, 5th degree felony drug cases require probation as well.  HB 86 not only expanded the good-time credits, but required judges to advise defendants of them at the sentencing hearing; that's no longer required.  And there's a new definition of indigency as it pertains to courts costs, fines, and fees:  a defendant is presumed indigent if he has an income equal to or less than the poverty guidelines.  It's not clear exactly how this will impact costs; there's case law holding that costs can be imposed on a defendant, even if he's indigent.

If you want to read more about the bill, the legislative summary is here (pdf file).  If you're particularly adventurous, the full text of the bill is here.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses