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A Federal case and old age

I ran across a 6th Circuit decision last week, and found it interesting for a couple of reasons.  First, it amply portrayed the differences between the Federal system of sentencing and Ohio's.  Second, it might actually be useful in state courts here.

Back in 1996, the Ohio legislature passed a big sentencing reform bill.  In addition to creating "flat time" sentences and eliminating parole, it implemented a system of "guided discretion" in sentencing:  the judge's sentence should reflect his consideration of various factors.

 "Discretion" is the key word.  Everybody understands that the potential combinations of offenses and offenders is infinite, and you have to give a judge discretion to fashion a sentence which appropriately reflects the situation in that particular case.

The Feds took a different tack, setting up a complex matrix which compared various factors of the offense -- the amount stolen, whether anybody suffered injury -- with the defendant's criminal history and spat out a number:  a range of months, usually within about a year (e.g., 33 to 41 months), which was the sentence the judge had to impose.  Judges complained bitterly about the Guidelines depriving them of discretion in sentencing, but then in 2004 the Supreme held that the Guidelines were only advisory, not mandatory, and those complaints dissipated.  Now, almost half the sentences imposed are outside of the Guidelines.

As we learn in U.S. v. Payton, that doesn't mean a judge can throw any old number out there and have it stick.  Payton was a serial bank robber, and had done two separate 10-year stints in prison for that.  On the second one, for robbing seven banks, he was released in July 2011 at age 45, and before the year was up he'd robbed four more.  The sentencing guidelines for that third case gave him a range of around 20 years, and the government urged a sentence of "at least" 25.  The judge almost doubled that, giving him 45.  The panel reversed, finding that the judge hadn't given a sufficient explanation of why he felt it necessary to keep Payton in prison until he was 90. 

That's not going to happen in Ohio.  The problem with Ohio sentencing law is that the provisions of the 1996 reforms that were supposed to guide judicial discretion in sentencing have been gutted by court decisions.  The presumptions in favor of minimum sentences and against maximum sentences were tossed in State v. FosterFoster also threw out the findings required for consecutive sentences, and while those were reinstated by legislature five years later, they're a shell of their former selves:  the appellate decisions basically hold that a judge need no more than read the "magic words" contained in the statute.

The only other thing left is RC 2929.12, which gives a list of factors a judge should use in determining whether the crime is more or less serious than usual for that offense, and whether the defendant is more or less likely to commit another crime.  They're logical factors:  the victim suffered serious harm, the crime was motivated by racial or ethnic bias, the defendant is remorseful, he has a long criminal history. 

So, does the judge have to discuss those?  No.  At least make findings?  No.  At least mention the statute?  Nope, although if he does, it's game over:  that's all he has to do, even if he just puts it in the journal entry.  Whoops, my bad.  He really doesn't need to do that; if he makes no mention whatsoever of the statute, the appellate court will presume that he did.  And as long as the sentence is within the statutory range, that will be upheld.

In essence, as far as sentencing goes, the sole function of the appellate courts of Ohio is to make sure that a judge doesn't give five years on a fourth-degree felony.

So all you're going to get is giggles if you cite Payton in your sentencing memorandum in common pleas court, and perhaps a brief rejoinder from the judge:  "You're not in Kansas anymore, Dorothy." 

But Payton could be very useful in one respect:  it contains a wealth of data on the decline of recidivism rates as a person ages.  To be sure, in Payton's case that boiled down to the panel concluding that the judge hadn't explained why a 25-year sentence wasn't enough.

Admittedly, telling a client that you've managed to have his sentence reduced so that he gets out of prison at 70 instead of 90 is not going to elicit tear-stained professions of gratitude.  But if you've got an older client, or one who's looking at sentences in the decades, it might be wise to include that data in your sentencing memorandum in common pleas court.  (The opinion mentions a study that shows that recidivism rates drop substantially after age 50, for example.)  

Just don't tell where you got it.

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