Changes
My client Sandra provided a valuable lesson in the importance of articles of speech when she told me that I was "the shit."
I was assigned to represent Sandra -- which may or may not be her real name, depending on my mood -- on her fifth-degree felony drug possession charge, a case sure to find its way into my highly-anticipated, but unauthorized, autobiography. First step was getting her out of jail, which proved more complicated than necessary. I got the judge to give her a personal bond, but I checked the next day and she was still in county.
A trip to the Justice Center and conversations with more people than I cared to talk to produced the answer: the bailiff had journalized an entry stating that Sandra's bond had been reduced to a personal bond. The clerk's office, however, could not process it that way: their computer system required the entry to say that bond was set at $1,500 personal. Well, at least that makes sense.
Then I needed to resolve her case. She had a couple of prior felonies - drugs and theft - and I wanted to see if I could avoid adding to that total by getting her into treatment in lieu of conviction. Too bad, said the prosecutor; she'd been given ILC once before, and that made her ineligible. I checked the law, though, and discovered that the statute was amended, and she would be eligible for ILC under the new version. That didn't go into effect until October 30, so we kicked the case until that date. And last week, the judge referred her. She'll be put into the program a month from now.
After I explained all this to her, she beamed. "Mr. Bensing, you are the shit."
A check of the Urban Dictionary showed that's not a bad thing. In fact, it's a very good thing: it means "the best." But only if you include that all-important preposition. The Dictionary provided two helpful examples of the difference:
"This joint is the shit" / This is potent marijuana
"This joint is shit" / This is poor quality marijuana
I'm not sure if having a review stating that I am the shit would help my Avvo profile.
The changes to the ILC statute are substantial. The old version not only precluded prior participants from eligibility, but provided that the prosecutor had to consent to ILC if you'd been previously convicted of a felony. That's gone now, as is the preclusion for a third-degree felony drug possession charge. Now, only first and second degree felony possession charges keep you from getting ILC.
Those amendments are part of Am. Sub. SB 66. The bill provided other significant changes, which went into effect last week.
Remember the two principle purposes of felony sentencing found in RC 2929.11? Now there are three: in addition to protecting the public from future crime and punishing the offender, we have as a purpose "to promote the effective rehabilitation of the offender," "using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources." The last quoted part was in the old statute, and some adventurous lawyers argued that this meant unduly harsh sentences violated that admonition. The next court which buys into that argument will be the first, but perhaps the inclusion of rehabilitation as a purpose will change that mind-set.
There's an Internet site somewhere which will tell you what the collateral consequences of a felony conviction are. The most serious consequence, of course, is that it makes it a lot harder to get a job.
Unfortunately, for some time Ohio had been narrowing the list of crimes you could get expunged, and limited the circumstances under which you could get it. If you had more than offense, felony or misdemeanor, you were out of luck. A break in that pattern occurred several years ago, when the State allowed you to expunge either two misdemeanors (as long as they weren't the same offense), or one felony and one misdemeanor.
Well, S.B. 66 goes all-in on the multiple offenses issue: you can have up to five felonies expunged, as long as they're all fourth or fifth degree felonies and aren't crimes of violence of sex offenses. (From the wording of the statute, it appears that you can have an unlimited number of misdemeanors expunged.) The time frames are expanded: before, you had to wait three years after completing your sentence to have one felony expunged. Now, you have to wait four years if you've got two felonies, and five if you've got three, four, or five.
There are still some restrictions that I'd like to see go away. One of the main problems is that there's no time limit for how long felonies can stay on your record. One of my clients not named Sandra had a 1989 conviction for aggravated assault -- a fourth degree felony, but a crime of violence -- and the change does him no good.
Still, half a loaf ... The changes aren't nearly as comprehensive as those provided by HB 86 in 2011, but they both seek to reduce Ohio's prison population, and that's a good thing. SB 66 may not be the shit, but it's a step in the right direction.
Speaking of reducing Ohio's prison population, Proposition No. 1, on the ballot on Tuesday, would go a long way toward that. Whether it's a good way of doing it is another matter. We'll talk about it tomorrow.
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