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What I learned in Columbus, Part II

On June 27, 2013, the Cuyahoga County Grand Jury indicted Jermain Thomas for a rape he'd supposedly committed exactly 19 years and 364 days earlier.  It was a DNA match, the case got tried, and he got convicted.  In 1993, the penalty for rape was a minimum of 5, 6, 7, 8, 9, or 10 years, and a maximum of 25.  So the judge gave him a sentence of 8 to 25.

I got the appeal, and one of the things I argued was that Jermain was entitled to be sentenced under HB 86, which went into effect in 2011.  That statute provided that anyone sentenced after its effective date and whose sentence would be reduced was entitled to be sentenced under the new law.  For rape, that's a sentence of between 3 and 11 years.  One of the reasons I went to law school is because they promised there wouldn't be any math, but even I know that 3 is less than 5 and 10 is less than 25.

The panel was so impressed with my reasoning they reversed, due in small part to the fact they'd already ruled that way in three prior cases by the time mine got heard.  The State appealed, and although the Supreme Court rejected the first three cases, the spinner landed on mine, and off I went to argue the case on Tuesday.

It's a bit more complicated.  There was a major sentencing reform bill in 1996, SB 2, that changed the sentencing scheme to flat time:  that's where the 3 to 11 for a first degree felony came in.  (Actually, it was 10 then; they raised it to 11 with HB 86.)  When the legislature passed SB 2, they tacked on an uncodified provision stating that anyone who committed a crime before the SB's effective date was sentenced under the old law, and anyone who committed a crime after that was sentenced under SB 2. 

So the question in Jermain's case is a simple one:  does that uncodified provision in SB 2 control, or does HB 86 control?  That State had a fairly good argument that the former did; as my buddy John Martin told me helpfully two days before the oral argument, "Boy, I thought you had a slam dunk until I read their briefs."

The State's case boiled down to two contentions.  The first was that HB 86 didn't really reduce sentences from what they were under pre-SB 2 law, since it was up to the parole board to determine when someone on an indeterminate sentence got out.  On the remand for resentencing from the court of appeals, for example, the judge had given Jermain the maximum 11-year sentence; theoretically, under the old sentence he could have been paroled after eight.

And theoretically, I could become the Pope.  At the time SB 2 was passed, you hit the parole board when you'd finished two-thirds of your sentence, and they'd cut you loose.  That's created a substantial ex post facto problem for SB 2.  If a judge wanted to max out a defendant on a rape case on June 30, 1996, the day before SB 2 took effect, she'd give him 10 to 25.  If she wanted to max out a defendant on July 1, 1996, she'd give him ten years flat.  But the second guy had a valid argument that while he'd do every day of the ten years, the first guy would be out in less than seven.

But by the time HB 86 was passed in 2011, the parole board's policies had changed radically.  That year, the board granted parole in less than 7% of the cases it heard.  If you'd gotten a 10 to 25 in, say, 1994, you'd very likely wind up doing 25 years.  That, coupled with the 3-is-less-than-5 point, made the State's argument that HB 86 didn't really reduce sentences a nonstarter.

And that was the key to refuting their second argument, too, which was that since HB 86 didn't explicitly repeal the uncodified section of SB 2, that section remained.  To be sure, there's a doctrine that prior law can be repealed by implication, but you have to show that the prior law is irreconcilable with the new law.

I decided to tackle that head on.  There was no question of the legislative intent for HB 86.  It modified some 150 sections of the Revised Code, and with one exception - that increase in the maximum penalty for a first degree felony - every single modification was intended to reduce the number of people who went to Ohio prisons, or reduce the time they spent there.  The reason was to save money.  And if you want to save money on prisoners, releasing older ones are the place to look:  they're less likely to recidivate, and their medical costs are much higher:  it costs twice as much to care for a prisoner in his 50's as one in his 20's.  The legislature was acutely aware of this when it passed HB 86; one of the provisions directed the parole board to report to the legislature on each inmate over 65, and give reasons why he hadn't been paroled.

Which brings us back to Jermain, and the eleven other defendants whose cases were being held for disposition of Jermain's:  all of them were 20-year-old rape cases out of Cuyahoga County, and the average age of the defendants was 49.  Honoring the uncodified provision of SB 2 would put those defendants in prison into their sixties or even seventies, and there was no way to reconcile that with the clear intent of HB 86.

The Chief Justice threw me a curve at the end, asking me if looking at legislative intent was a disfavored method of statutory interpretation.  I hadn't gotten the memo on that.  I think she might have been channeling Scalia, and his textualist approach.  Fine by me:  if you just go by the plain meaning, HB 86 says the defendant gets the benefit of a reduced sentence, this reduces the sentence, The End.

We'll see what happens.  Meanwhile, if you have absolutely nothing else to do for 33 minutes, click on the space below and take a look.

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