Sal's got two problems. The first is the Federal drug case I'm representing him on. The second is the case he has out in Oregon. When the cops picked him up on the Federal warrant, he was sitting on top of a duffel bag containing 112 grams of meth.
The Assistant U.S. Attorney and I got on the phone with the Oregon prosecutor to see if we could work out something that would take care of both cases. Sal was looking at the minimum mandatory five years here, and if the Oregon case was less serious, folding that up into this one, and having Sal do concurrent time, looked like the best solution. I asked the prosecutor what Sal would be looking at on a conviction out there. "The sentencing guideline's 39 to 46 months," he said.
I wondered what would have happened if the Fed case had been out in Oregon, and Sal had been picked up here. What would one of the prosecutors here tell someone about what Sal would be facing if he got convicted in the courthouse across the street from me?
Well, that's not true. I didn't wonder that, because I know the answer. The prosecutor would tell them that the sentence was mandatory, and it was anywhere from two to eight years. What I did wonder about is the effect of it. There's a big difference between telling a guy that he's facing a sentence that could vary by seven months, versus telling him that the sentence could vary by six years.
I had an oral argument in a case on consecutive sentencing a couple weeks ago in the 8th District, which devolved into a discussion of appellate review of sentencing in general. One of the judges, Sean Gallagher, has written numerous thoughtful opinions on the subject, without coming to any real conclusion. Which may well be because there is no real conclusion. Ohio law gives an extraordinary measure of discretion to judges in sentencing. I can count on one hand the times the 8th District has reversed a sentence because a panel deemed it excessive.
Obviously, a guideline system, which is used in Federal court and by various states, takes away a good measure of that discretion. The guidelines in the Federal system aren't as strict as they were before the Supreme Court made them advisory instead of mandatory in 2006. Last year, almost half the Federal sentences imposed were outside the guidelines. But that's not judges gone wild. The sentencing range may not be where you wind up, but it's where you start.
A sentence is properly determined by considering the offense and the offender, and there are myriad factors which go into that calculus. The Federal sentencing guidelines attempt to greatly reduce the number of factors, and to quantify them, in a manner which veers close to being a board game. Had a gun when you sold those drugs? Add two levels. Made a threat of violence? Add two more. Were only a minor participant in the conspiracy? Deduct two. Wow! You landed on Acceptance of Responsibility! Go down three levels. And we'll cross-index that with the two points you got on criminal history -- and yes, those marijuana convictions where all you got was a fine do count -- and then it's do not pass Go, go directly to jail for 63 to 78 months...
A matrix system was considered and rejected when Ohio passed its first batch of sentencing reforms, but "guided discretion" was still in the mix: there were presumptions in favor of minimum prison terms and against maximum and consecutive sentences, as well as a smorgasbord of factors which judges were to apply in determining the seriousness of the offense and the likelihood of recidivism. The presumptions went out the window with the Supreme Court's 2006 decision in State v. Foster, on the basis that they constituted impermissible judicial fact-finding, a violation of SCOTUS' decision in Blakely v. Washington.
To be sure, the requirements for imposing consecutive sentences were reinstated in 2011 by HB 86, but at present that's looking like the judge needs to do no more than recite the statutory language, without giving any explanation or reasons. And the appellate courts have ignored the seriousness and recidivism factors under RC 2929.12; the appellate courts will simply presume that the judge did consider them. I can think of a maybe two cases in the past decade where a sentence was reversed because a judge improperly evaluated those factors.
Of course, this raises the question: is discretion such a bad thing? It is when the most important factor in sentencing is not what you did and what you've done in the past, but what judge you draw in the arraignment room. There's something wrong when a judge regularly imposes a 15- or 20-year sentence for child porn, while the judge across the hall rarely imposes more than a year or two for the same offense.
The Ohio sentencing reforms were intended to provide some consistency in sentencing, though the application of guided discretion. That hasn't worked, and I see no way of achieving it through appellate review. Maybe it's time to look at something else.