May 12, 2013
Ohio prosecutor upset public unwilling to pay higher taxes to make his job easierThe title of this post is my proposed alternative headline for this local article discussing recent sentencing law reforms in Ohio (made by a Republican legislature and signed in law by GOP Governor John Kasich). The actual headline from the local paper is "Prosecutor: Sentencing changes damaging judicial system," and here are excerpts (with the prosecutor's telling comments highlighted by me):
In light of a recent trial in which a Springfield man was convicted in Athens County Common Pleas Court of three counts of trafficking in cocaine, Prosecutor Keller Blackburn discussed how the man will face a lesser sentence thanks to House Bill 86 and said the legislation changes in sentencing is hurting the state’s judicial system.
Michael Turner, 29, sat through a four-day trial before a jury found him guilty of two third-degree felony counts of trafficking in cocaine and one second-degree count of trafficking in cocaine. When he was indicted in August of 2011, the charges he faced carried a maximum prison sentence of 18 years with at least eight years being mandatory. However, after House Bill 86 passed through legislation, the maximum he can now be sentenced is only nine years. A sentencing date has yet to be set.
Blackburn explained that House Bill 86 not only made a distinction between cocaine and crack cocaine and the weights of the drugs, but it also significantly changed the prison sentences associated with lower level felony crimes. Prior to the changes, fifth-degree and fourth-degree felonies carried the real possibility of prison time. Now, probation or jail time is more likely for first-time offenders. Third-degree felony crimes carried a maximum of five years in prison but now only three can be ordered....
“It’s balancing the budget on the backs of local taxpayers on felony cases,” he added. “There’s a reason things are felonies and others are misdemeanors. Local communities are supposed to pay for misdemeanors and the state is supposed to pay for felonies. Now felony fives, fours and some threes are paid for by the counties.”
While Blackburn does not believe the sentencing changes affects the criminal mind much, he does point out the differences it makes after the fact. “When you change the numbers, then negotiations get more difficult. If someone is only risking six additional months by not taking a deal, they’ll go to trial. It harms negotiations and pass costs to local communities,” Blackburn said.
According to Blackburn, there are around 600 cases that come across his desk in a year. He said it’s not possible for the prosecution and defense to try that many cases, nor is it possible for the courts to handle such a load and taxpayers cannot afford that many cases. He said there is also additional stress placed on the probation department.
“The principles and purposes of sentencing used to be to punish the offender and protect the public. It’s now to punish the offender and protect the public in the most economical manner. That’s not what’s supposed to be happening but that’s what legislation has decided,” Blackburn said....
“You start taking tools out of the toolbox. Maybe the person with 24 balloons of heroin does need an intensive treatment program but maybe we know they just sold twice and we just missed them,” the prosecutor said. “Maybe they are one of the major spokes in the wheel and all I can do is put them on probation when the probation department is underfunded.”
“The problem is money and they don’t want to put any more money into prisons so they’re not willing to make many changes,” said Blackburn.
Based on the prosecutor's comments here, it does not seem at all accurate to say, as does this article's headline, that a new sentencing law is "damaging [Ohio's] judicial system" in any way. Rather, by enabling more defendants to go to trial and by making sure communities cover certain costs, it would appear the new sentencing law may actually be strengthening the judicial system in the Buckeye State.
Rather, what really seems to be bothering Prosecutor Keller Blackburn is that Ohio's new sentencing laws make plea negotiations "more difficult" and may lead to more defendants exercising their constitutional right to a jury trial. Pulling back the curtain as to what prosecutors really care about, Backburn laments that he is losing one of the tools he wants in his toolbox so he can determine the fate of a defendant's future without the complications or challenges of proving to a jury or judge why this fate is appropriate or cost effective. And dang those voters and legislators, concludes Blackburn, they are unwilling to put more of their hard-earned money into making his job as a prosecutor easier.
May 12, 2013 at 09:01 PM | Permalink
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The more cases go to trial, the better I like it. It was not entirely clear until 40 years ago (with Santobello) that plea bargaining was even constitutional, although everyone knew the SCOTUS had no choice but to approve it.
If more cases go before juries, fine. But then let's not hear defendants who get convicted whine when they get a higher sentence than they would have had they admitted the truth about their behavior up front.
Defendants have a perfect right to put on their two-step in front of the jury (as Jodi Arias just finished doing), but they do not have a right to expect that sentencing judges are going to look on them the same way as they do upon defendants who come clean from the getgo. No sane system will or should treat defendants who tell the truth the same way as those who evade it.
Posted by: Bill Otis | May 12, 2013 9:24:34 PM
He can save 20% by not prosecuting innocent people, and using scientific methods to prove people guilty. Stop using police intimidation, feeding of information to witnesses. That 20% would more than make up for any tax shortfall.
Posted by: Supremacy Claus | May 12, 2013 9:52:39 PM
When Bill finally does make it up to hell he is going to look up at the pearly gates and cry out to Saint Peter, "Why am I here? What did I do? I never evaded the truth in my whole life." And Saint Peter is going to look down on Bill in hell and say, "Yes, Bill. You never did evade the truth but the fact is the truth evaded you."
Posted by: Daniel | May 12, 2013 10:25:00 PM
i have the give daniel this one bill!
This here is a big part of the problem!
"No sane system will or should treat defendants who tell the truth the same way as those who evade it."
Last time i looked under our Constitution until the state walks into court and proves what they CLAIM is the truth BRD. IT'S NOT!
as for this!
"But then let's not hear defendants who get convicted whine when they get a higher sentence than they would have had they admitted the truth about their behavior up front."
Last time i looked a statement" like this "if you plead out instead of going to trial we'll cut you a deal" Should be considered extortion.
Posted by: rodsmith | May 12, 2013 11:18:42 PM
Reality has a stubborn independent place that, oddly, survives all the junior league solipsism defense lawyers try to gin up. The defense is obviously better off if nothing can ever, truly be know (i.e., if we're all in the solipsistic blind). That way, the government can never discharge its burden of proving, not only that the defendant actually did something, but the jury can know it beyond a reasonable doubt.
All this gauzy, metaphorical talk about truth is to make the concept seem exotic and alien. Unfortunately, almost all the truths upon which criminal cases hinge are, however, simple.
That juries understand this throughout all the defense shake-and-jive is why almost all defendant's get convicted.
It just not that hard to see, ladies and gentlemen: We have a boatload of guilty defendants and jurors with normal good sense. That is the real prescription of the such a huge preponderance of guilt verdicts. Shake and jive and lawyer razzle-dazzle just can't get past the evidence.
If you want all these bargains, fine, go for it. No skin off my nose. But you can't decide a la a ten year old to play superhero and just do an imperial march through trial. When the evidence comes in, the middle school band stops playing and reality comes home to roost. But if you want to test out what I'm saying, feel absolutely free.
Posted by: Bill Otis | May 13, 2013 5:09:00 AM
I see this common ground.
The more serious the charge and the punishment, the greater the reliance on objective evidence, the lesser the reliance on eyewitness testimony. A standard must be set, perhaps in statute. If the potential prison sentence is greater than a year, there must be scientifically validated, objective, physical evidence, meeting Daubert standards.
No one goes to an extended prison term on the word of another nor the word of the defendant himself. It has been shown the police can make anyone falsely confess to anything, even without threats. All testimony should be preceded by recorded interrogations, available to the defense prior to trial. We are looking for indicators of excessive police persuasion, and for self interested lying.
Posted by: Supremacy Claus | May 13, 2013 6:21:48 AM
This is one of those situations where you and should I have far more common ground than we would generally.
Part of our problem here in Ohio--in fact most of our problem, to my mind--is an economic one. Assuming that there are a finite number of people who must go to prison for the good of society (a proposition that we should both accept), even if we disagree about how many of those people there are (I assume we do), I think we can agree about who should pay for the costs of that incarceration.
But prosecutors and an awful lot of Ohio judges don't want to consider those costs. AT ALL. Prison incarceration in Ohio is a free ride for county prosecutors and judges--the State budget pays, not the county. The county pays (with some reimbursement) for local jail and probation. That's why Mr. Blackburn's quote begins with
'“It’s balancing the budget on the backs of local taxpayers on felony cases,” he added. “There’s a reason things are felonies and others are misdemeanors. Local communities are supposed to pay for misdemeanors and the state is supposed to pay for felonies. Now felony fives, fours and some threes are paid for by the counties.”'
You see? Mr. Blackburn is mad that the STATE legislature made some crimes that the STATE had been forced to pay for the COUNTY's problem. This story isn't about your normal defense attorney / prosecutor fight--it's a BUDGET issue, hence Prof. Berman's pithy title.
Now I know you're not just a conservative prosecutor, you're a conservative full stop. And HB 86 is a conservative approach! Home rule! Local solutions, not big government!
Posted by: Ohio PD | May 13, 2013 11:30:37 AM
"All this gauzy, metaphorical talk about truth is to make the concept seem exotic and alien. Unfortunately, almost all the truths upon which criminal cases hinge are, however, simple.
That juries understand this throughout all the defense shake-and-jive is why almost all defendant's get convicted.
It just not that hard to see, ladies and gentlemen: We have a boatload of guilty defendants and jurors with normal good sense. That is the real prescription of the such a huge preponderance of guilt verdicts. Shake and jive and lawyer razzle-dazzle just can't get past the evidence."
Sure plenty of those convicted are guilty!
But far far far too many are not!
They get convicted becuse DA's over charge knowing the suckers on the jury will think. "They must have done something!"
They get convicted because juries when faced with someone with 10-20-30-100 diff charges for the same 10 min's of criminal activity are afraid to face the truth. The state did not prove their case...But in fear convict of something. Just in case!
They get convicted because too many of the public at large that make up the juries. Still belive Cops! don't lie! We all know that in itself is a LIE!
Posted by: rodsmith | May 13, 2013 1:55:13 PM