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Separation of Powers v. Reagan Tokes

By: April Campbell

Senate Bill 201, known as the “Reagan Tokes Act,” introduced indefinite sentencing schemes for all first-and-second-degree felonies committed after March 22, 2019. The act sprung from the tragic death of OSU student Reagan Tokes; one we are all familiar with.  

Here is the problem with it. Essentially, the law gives the sentencing decision to hold or release a defendant to the Ohio Department of Rehabilitation (“ODRC”): The ODRC may keep a defendant in custody until the maximum term if it chooses, based on several factors—including the ODRC making the decision as to whether the offender committed a new crime. R.C. 2967.271(B)-(C)(1)(a).   

But to do so puts the state in the position of determining whether there was a crime committed, violating the separation of powers doctrine. Barring congressional attempts to transfer jurisdiction to non-Article III tribunals, this doctrine prevents the encroachment by one branch at the expense another.   

Consequently, the scheme is under attack. Deemed unconstitutional by at least one Ohio Court, defense attorneys now are turning to Ohio’s Courts of Appeals. See State v. O’Neal, Hamilton County Common Pleas Case No. B 1903562 11-20-2019 Judgment Entry.   

Honestly, there has not been much luck. Recently, the Twelfth District released two decisions on the subject. One says a defendant forfeits the argument by not objecting to the sentence in the trial court. State v. Alexander, 2020-Ohio-3838 (July 27. 2020). Another says that the act does not violate a defendant’s Due Process right. State v. Guyton, 2020-Ohio-3837, (July 27, 2020). Notably, neither address the real issue: whether it violates the separation of powers doctrine.   

While this issue is currently being raised in the Second, Fifth, Sixth, and Eighth districts, for now, the takeaway from the twelfth district is this: raise the issue first in trial court, or you’re going to forfeit the argument on appeal.  

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