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 »


Some arguments on sentencing

The 8th District has changed the scheduling of its oral arguments.  Used to be that they were at 9:00 AM and 10:30 AM, with three arguments for each period.  For reasons unknown, they're now at 10:00 AM and 1:30 PM.  This resulted in me having to go down for a morning argument yesterday, then going back in the afternoon for another one.  That's an eight-minute walk -- each way.  Oh, the humanity!

Not a fan.

But that's the way it will be, I suppose, unless at the next conference one of the judges says, "Hey, let's think of something we can do to make Bensing's life easier."  Unlikely, to be sure, but possible.

Anyway, let's talk about one of those arguments.

Not mine.  I had the second case on the docket, and the first one was more interesting.

In addition to this blog, handling criminal cases and appeals, tutoring disadvantaged youth, and working on a cure for cancer, I also do a weekly roundup of the 8th District cases (all of them, not just a select few, as I do here), which I send to the listservs of the local and state criminal bar associations, as well as to a number of judges around here.  I give a shoutout to lawyers who win appeals, and the defense attorney who was handling the first argument had gotten a shoutout just the week before.  "Going to earn another one with this case?" I asked.  She shrugged noncommittally. 

After listening to the argument, I'm guessing not. 

Not because of anything she did or didn't do.  But this was a sentencing case, and those don't fare well in the 8th.  Or just about anywhere else in Ohio.

She did have something to work with.  The defendant was 51 years old, and the judge had given him 18 years of consecutive sentences for crimes ranging from the more serious to the frivolous.  In the latter category was a theft of two bottles of soda from Trader Joe's and of a fishing rod from a neighbor's garage. 

In the former group was a few burglaries.  To be sure, the defendant wasn't armed, and he skedaddled as soon as he was confronted by the homeowners.  The prosecutor argued that the victims nonetheless expressed feelings of having been violated, an opinion with which I concurred, having been burglarized twice. 

Judge Sean Gallagher was on the panel, and he was uncharacteristically silent during most of the argument.  I say "uncharacteristically" because he's been one of the most vocal and articulate judges in the 8th on the issue of sentencing.  He's one of what I call the "sentencing hawk."  Basically, their view is that the legislature has chosen to vest an immense amount of discretion in sentencing to trial judges.  If you want to impose more limits on that discretion, get the legislature to change the law.

I don't agree with that view, but I'd be a bit firmer in my opposition if I could point to something indicating it's wrong.

 At any rate, Gallagher's self-imposed silence was broken during the rebuttal portion of the argument, when he made two points, one valuable and one interesting.

The valuable one was this:  RC 2929.11 outlines the purposes and principles of sentencing, and says that a court should impose a sentence which achieves those purposes using the minimum sanctions necessary.  How much the Ohio prison system spends on the average prisoner is a matter of record:  it's just shy of $26,000 a year. 

That's the average prisoner.  The defendant here was 51.  Stats show that crime is a young man's game:  it's a lot easier to run away from the police or crawl through a window when you're in your twenties than it is when Social Security is on the horizon.  As one of the other judges pointed out, there didn't seem to be a whole lot of reason to put a guy in prison, at least for this, into his late 60's.  Here's another factor when it comes to age:  stats also show that it costs about twice as much to house a prisoner in his fifties as it does to house one in his twenties.

Something to think about the next time you're appealing a sentence.

The interesting that Gallagher said was that maybe the way to correct Ohio's sentencing problems is to repeal SB 2.

That was the sentencing "reform" which was passed in 1996, changing Ohio's scheme from indeterminate sentences to determinate ones.  Under pre-SB 2 law, for first- and second-degree felonies, you got a minimum and a maximum.  The minimum for a first-degree felony would be anywhere from five to ten years, and the maximum would be twenty-five.  You were eligible for parole after serving the minimum (actually, two-thirds of the minimum, or one-third if you were 21 or under).

Gallagher's point is that under present law, judicial release is the only mechanism of reviewing a sentence at a later time; under the prior law, the parole board could review it. 

That argument fares much better if the parole board is actually reviewing sentences and making a determination that the defendant has served enough time.  They don't; last year, the board granted parole in just over 6% of the cases it heard.  I'm not happy if the judge maxes out my client at eleven years, but I'm a lot happier with that - and so is the client - than if the judge sentenced him to five to twenty-five, and he did the whole quarter.  An attorney I know had a client a few years ago who'd been sentenced to ten to twenty-five back in 1989.  He did every day of those twenty-five years.  He was 81 when he got out, and had been wearing a colostomy bag for the last decade.

So I'm not too keen on that idea.  But it turns out that there's plenty of stuff on the stove about sentencing reform.  We'll talk about that next week.


Recent Entries

  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax
  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States
  • June 27, 2017
    What's Up in the 8th
    A worrisome decision on expert funding, and, mirabile dictu, a court's dismissal of a case for a discovery violation is upheld