Sentencing Commission - Memo from President Dan Sabol

Members,

The Ohio Criminal Sentencing Commission has released a first draft (attached, pages 72-80) in what looks to be an attempt to significantly alter Ohio’s sentencing structure. As they emphasize, their initial recommendations are general, and just the beginning of what will be a very long process towards any potential change. Notwithstanding, this is an important issue, and I want to make sure OACDL’s thoughts and concerns are heard.

While there are some positive notes, there are significant problems. Perhaps most significantly, the commission is pushing for reducing the opportunities for early release, enacting indeterminate sentencing for F3s, making all F3s 1-5 year sentences, and imposing mandatory minimum sentences for F1/F2 cases where the defendant is sent to prison. Disingenuously posited under the guise of “truth in sentencing,” the Commission seeks to insert the “known” sentence of initial mandatory time for what will be greater uncertainty for Defendants as they may-or-may-not be subjected to additional years in prison by a DRC panel with opaque rules and procedures. Truth in sentencing unless we look at the sentence from the Defendant’s perspective. Not ideal.

First public comment is due by February 1^st, 2023. We will have a meeting over zoom (or my office if you’d like to swing by in person) on January 25^th, 2023, at 4:00PM to discuss our thoughts and concerns. If you can’t make it in person, please feel free to email me directly, and thank you to those who already have. After the meeting, I will compose a letter to let the commission know where we stand.

If interested, below are my initial general thoughts on the 12 proposed issues/modifications that are raised by the Commission. Thank you all, and I hope to discuss this matter with many of you soon.

Yours,

Dan Sabol

President, OACDL

Ohio Criminal Sentencing Commission Recommendations

1. Establish a modified and modernized rehabilitative model of criminal sentencing.
   201. The report rehashes the sentencing scheme under SB201.
   202. The only suggestion made is that a “more straightforward range of sentences” made in conjunction with more explicit weighting of sentencing factors in order to streamline the sentencing process.
2. Seriousness and recidivism factors to be weighted to provide context and distinction to sentences.
   1. The concern is that, on the surface, similarly situated Defendants are receiving different sentences, which degrades public trust in the process.
   2. The hope is that, by weighting or prioritizing factors—and then journalizing them—the reason for the sentencing disparity will become evident.
   3. Problems and questions:
      1. So….are judges told which ones are weighted or prioritized? Or is it their decision and they must simply journalize their analysis?
      2. If there is no codified change to how they are to be weighed, does anything really change other than a judge stating they gave one factor more weight? Doesn’t that happen already?

• If the main concern is perceived sentencing disparity, aren’t we ignoring the real problem—some judges are simply inclined to give much harsher sentences, while some are prone to be much more lenient. It’s as simple as that.

3. Expand indeterminate sentencing to apply to F3s and get rid of 9-36 month F3s.
   1. The stated benefit is reaping the benefits of SB201 for F3s.
   2. Problems and questions:
      1. Why are we so sure that indeterminate sentencing under SB201 is working? Shouldn’t we wait to see if it was actually a good idea before expanding its use?
      2. Our prison systems are still—perpetually—filling over the brim. Is increasing prison sentences for F3s really in our best interests?

• Some 9-36 month F3s would be re-classified as F4s. Any idea how many?

4. Implement a definite minimum time that a prisoner must serve before release options become available.
   1. Back to truth in sentencing—sentencing judge would establish a minimum of “actual” time from the sentencing range that must be served.
   2. Problems and questions:
      1. Just F1s and F2s? It’s implied but not specifically stated.
      2. Guts judicial release.

• Takes sentencing tools away from the trial court—must now choose between a local sanction and 2/3 years of mandatory time when they may have been inclined to give a four-year sentence and shock them out in a year.

5. Modify consecutive sentencing to provide greater proportionality between similarly situated offenders.
   1. Perceived disparity across the state between similarly situated offenders (you think?)
   2. Problems and questions:
      1. It’s a bit vague, but the idea seems like a good one. Parole eligibility after a set period of time for non-homicide and then homicide offenses. For example, the Defendant who got stacked for 100 years on a string of burglaries could be eligible after 18 years to apply for parole.
   3. Expand responsibility of parole system.
      1. The report notes prior criticisms—inconsistency and lack of transparency. Fixing that would be a good thing, and the commission suggests statutory limitations on discretion with oversight and accountability to help dispel criticism and achieve transparency.
      2. Problems and questions:
         1. That sounds great. How is this going to be accomplished specificially? Nothing is proposed.
         2. It is referenced in passing that the parole system will help accomplish rehabilitation in the new indeterminate system. How? What role, if any, will they play in determining a prisoners release under SB201? Or is this just in reference to consecutive sentencing discussed above?
      3. Promote the adoption of uniform entry templates.
         1. Seems to make sense. Online portal with standard entries for courts around the state to promote clarity and accuracy.
      4. Standardized presentence reports.
         1. The committee suggests standardizing PSIs will lead to more efficient use of resources and clearer communication.
         2. Problems and questions:
            1. Many jurisdictions involve brief or waived PSIs on cases where parties it is a foregone conclusion that community control will be imposed. Will the same thorough PSI need to be conducted on every case? If so, this is probably not an efficient use of resources, particularly in heavy volume courts.
         3. Reorganize and simplify criminal statutes.
            1. The code should be simpler and easier to understand.
            2. Problems and questions:
               1. Sure it should be. But no specific changes or procedures to get to change are suggested, save the Sentencing Commission being expressly authorized to review potential legislation.
            3. Authorize an existing or new agency to handle professional notifications.
               1. Prosecutors were complaining about the burden of reporting convictions to professional boards.
               2. Can’t say I feel to strongly about this one.
            4. Expansion of diversion programs and specialized dockets.
               1. Inconsistent use of diversion programs is noted—goal would be to expand resources and increase involvement. Sounds good to me.
               2. Nothing is really noted expanding use of specialized dockets, rather, it is suggested research should be done to evaluate them and how to best use resources to support the programs.
            5. The drug epidemic in Ohio.
               1. Commission recognized the problem is too big for them to tackle now.
               2. Believes that before any look at the statutes is conducted, they need guidance from General Assembly regarding addiction, such as “is it a public health concern, a criminal offense, or mental health issue?”
               3. Problems and questions:
                  1. Where to begin. Honestly, the commission should have just left this alone. The over-simplistic “what are we dealing with”—as if it falls neatly into a category of a mental health issue OR a public health concern—is laughable

Link to Ohio Criminal Sentencing Commission brief here: OSC Brief