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Cold cases and 1.58(B)

Since the Cleveland police discovered that they had 3,000 untested rape kits lying around their property rooms and belatedly sent them off to BCI, we've had a rash of "cold case" rape prosecutions.  There have been innumerable people indicted on the 7,305th day -- 20 years -- since they allegedly committed the crime.  In several cases, the State didn't have a name for the defendant, just a DNA profile, so they indicted the profile as "John Doe."

There are a number of legal issues that crop up in these cases:  pre-indictment delay, Crawford... And a big problem is sentencing:  most of the cold cases are from 1993 and 1994, which was two major sentencing reforms ago.  People are scrambling to find out what the sentence for a particular crime was back in 1993.

I think that the relevant question is what the sentence for the offense is now.

That occurred to me when I ran across the Supreme Court's decline of jurisdiction the other day in a 10th District case, State v. Phipps.  The issue there was actually consecutive sentences.  Brief recap for new viewers:  Back in 1996, Ohio passed a law saying that judges had to make particular findings in order to impose consecutive sentences.  The Ohio Supreme Court held that was unconstitutional in 2006, but in a different case the US Supreme Court held it wasn't a few years later.  The Ohio Seven said that didn't mean the statute was automatically revived; it was up to the legislature to do that.  So, in 2011, that's exactly what they did.

Phipps had committed his crimes -- sex assaults involving children -- before the effective date of the revival but was sentenced after, and the judge didn't make any findings before imposing consecutive sentences totaling 27 years.  The question was whether Phipps was entitled to be sentenced under the new law.  The 10th District decided he was, because of RC 1.58(B):

$$(B) If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.

In plain English, it means a defendant gets the benefit of the new law.  If the new law increases the punishment, it can't be imposed upon him because of the Ex Post Facto Clause.  But if it reduces the punishment, he gets that.

The State actually had a decent argument in Phipps:  we're only talking about a potential reduction in sentence, as opposed to an actual one.  (And, as a practical matter, we're talking about no reduction, unless you subscribe to the belief that when Phipps next appears for sentencing, the judge will say, "You know, having looked at the statute, there's just no way I can give you consecutive time.") 

There's a similar question in the cold cases.  The big change in the 1996 sentencing reform was the elimination of indeterminate sentences.  Before that, rape was punishable by a minimum sentence of between five and ten years, and a maximum of twenty-five.  In 1996, it became a sentence of anywhere from three to ten years.  It became eleven years in 2011.  It's hard to see how that wouldn't be a reduction; the minimum sentence now is three years, while it was five years under the old law.  That's enough right there.

And as a practical matter, it's huge.  Back in the 80's, if your client got a 10 to 25 year sentence, he'd be out the first time he hit the Parole Board, which would be after seven years.  After the passage of the 1996 reforms, the Parole Board drastically reversed its policy, often treating the maximum sentence as the minimum sentence.  A lawyer I know had a client sentenced to 10 to 25 in 1989, and the client just got out.  He'd done every day of those twenty-five years, and when he came out, he was 79 years old and had been wearing a colostomy bag for the last decade.

Cold cases are tough to defend:  the law on pre-indictment delay is horrible, and the DNA settles the "was he there" question, so your only argument is consent, plus, you have to give the jury some explanation for why the victim is claiming it was a rape if it wasn't.  Cutting your client's sentencing exposure in half, by more than a decade, is a major accomplishment under those circumstances.

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