Sentencing Law and Policy: A prosecutor's view on Foster

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March 1, 2006

A prosecutor's view on Foster

I discussed in this post why prosecutors are celebrating (and defense attorneys are lamenting) the Ohio Supreme Court's big Blakely decision in Foster (basics here, commentary here), which decided to "Booker-ize" Ohio's sentencing laws by severing statutory requirements for enhanced sentences. To reinforce these realities, today I received (and got permission to post) a memorandum from a state county prosecutor's office discussing Foster. The memo, which can be downloaded below, provides helpful background on the Foster case and why it (and the companion Mathis case) has prosecutors so happy. Here are some telling snippets from the memo:

The [Ohio] Supreme Court concluded: (1) Judicial factfinding is not required before a prison term may be imposed within the basic ranges of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant. Foster at 38. (2) Judicial factfinding is not required before imposition of consecutive prison terms. Id. (3) Judicial factfinding is not required before imposition of additional penalties for repeat violent offenders and major drug offenders. (4) Trial courts have full discretion to impose a prison term within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentence. Foster at 39....

[B]oth cases were unanimous decisions with Justice Resnick concurring in the paragraphs that are most pro-prosecution.... In my opinion, the background of those Supreme Court judges who formerly were common pleas court judges shines through the decision.

Good luck and unless the United States Supreme Court overrules Foster and Mathis our jobs and the jobs of our terrific secretaries will be easier. Justice prevailed!

Download prosecutor_memo_on_ohio_sct_ruling.doc

March 1, 2006 at 04:59 PM | Permalink

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Comments

The Fairfield County Prosecutor who wrote that memo should be ashamed of himself. The final paragraph sums it up perfectly--"our jobs will be easier, therefore justice prevailed." I happend to have had the pleasure of facing this particular gentleman once, and he is a perfect example of why Foster is a disaster for notions of fairness, decency, and common sense.

Posted by: Anonymous | Mar 1, 2006 5:19:50 PM

Anonymous - there are quotations in your post, yet you have not quoted the memo. There is no "therefore" before justice prevailed in the prosecutor's memo.

Posted by: anon | Mar 1, 2006 10:19:26 PM

I think that the “therefore” can be reasonably applied. The Ohio Supreme Court decided to be judicially active, because think consider themselves part of the prosecutor’s office. (If it had gone the other way, the papers would be saying that they are “soft on crime.”) Whatever the case, the decision is disgusting, and, indeed, prosecutors jobs will be much, much easier.

Posted by: anon | Mar 2, 2006 2:06:14 PM

or... justice prevailed which also makes our jobs easier. I believe that is a more accurate paraphrase.

Posted by: anon | Mar 2, 2006 10:33:01 PM

The reason that I paraphrased that the way I did, as I indicated in my post, is that I *know* the author of the memo, and I have had cases with him. In fact, I had a case where I beat him *on a Senate Bill 2 issue.* Trust me--for this gentleman, it's absolutely fair to imply the the 'therefore'.

Moreover, I completely fail to see how removing the requirement of guided discretion qualifies as 'justice prevailing.' This has nothing to do with justice. Under S.B. 2, intelligent and conscientous trial judges could give defendants to any justifiable sentence--all they had to do was make the proper findings. Smart judges had no difficulty imposing maximum and consecutive sentences. How is it 'just' to remove the guidance required by the legislature?

Posted by: Anonyomous | Mar 3, 2006 12:48:41 PM

However, under your view the intelligent and conscientous trial judges would be imposing "just" sentences on the basis of facts determined by the judge (and not found by a jury or admitted by the defendant) which the Ohio Supreme Court determined violated the Defendant's constitutional rights.

The legislature is still free to guide the trial courts' discretion. The legislature must simply do so in a way that does not offend the Ohio or US Constitutions.

Therefore, justice occurs by removing the unconstitutional portions of Ohio's sentencing scheme, while leaving trial courts with the discretion necessary to impose sentences consistent with the purposes of sentencing, unless and until the legislature finds an appropriate way of altering the trial courts' current level of discretion.

Posted by: anon | Mar 3, 2006 7:51:33 PM

I'm sorry if I left the impression that S.B. was my idea of a "just" sentencing scheme--it most certainly was not. However, it was *vastly* more "just" that what Foster provides. Foster removes protections for criminal defendants, protections that were part of the S.B. 2 'deal' that was struck when the statute was enacted. Admittedly, those protections are unconstitutional, but they were protections notwithstanding. If you think that "just" is simply equal to "constitutional", you really ought to give that a little more thought.

Posted by: Anonymous | Mar 4, 2006 11:36:24 AM

I don't always believe that what is constitutional=just. However, I believe the word "just" has more than one meaning. Sometime that is morally unjust could be legally just. A quick visit to dictionary.com reveals at least 6 different definitions of the word.

In this particular instance I consider the Ohio Supreme Court doing its best to follow the U.S. Supreme Court precedent and the will of the Ohio legislature in light of that precedent justice.

I also believe it is more just for trial courts to have the discretion they need to impose proper sentences than it would be for them to be required to only impose minimum sentences. Victims also have constitutional rights in Ohio. I believe it would be entirely unjust for a trial court to not be able to take into account the impact on victims and the seriousness of crimes and instead be forced to impose only the minimum prison sentence. I don't believe the Ohio legislature would have preferred that option.

If the trial courts now have too much discretion then the legislature is free to create a different sentencing scheme that both protects defendants and is consitutional. However, in the meantime I believe the Ohio Supreme Court's decision is just.

Posted by: anon | Mar 5, 2006 9:39:56 AM

Anon, you keep moving the ball. In the paost I was responding to, you argued that the problesm with SB2 was that trial judges "the intelligent and conscientous trial judges would be imposing 'just' sentences on the basis of facts determined by the judge (and not found by a jury or admitted by the defendant) which the Ohio Supreme Court determined violated the Defendant's constitutional rights." You never once mentioned victims. For the record, neither did I. If you can explain to me how the Foster decision will do anything but allow judges to sentence more defendants to prison and impose longer sentences, then you might have a point. But otherwise, I suggest that your view of "justice" is spectacularly one-sided. Let's be clear: prosecutors won, judges won, and they won because they no longer have to make findings to justify the sentences they impose. That's all. This does nothing to further the "purposes" of SB2 as stated in R.C. 2929.11, since under the law each sentence was supposed to be designed to further those purposes EVEN BEFORE FOSTER WAS DECIDED. Moreover, thoughtful and reasonable judges will most likely impose the same sentences that they chose in the past. Let's be frank: all Foster does is let trial judges who were too incompetent to make the proper findings off the hook. There's one judge I know who always imposed sentences one month short of the maximum specifically so that he didn't have to make any findings, because he found it too difficult. People like him are the big winners under Foster. That's supposed to be justice for victims? Please.

Posted by: Anonymous | Mar 6, 2006 12:48:39 PM

I don't believe I've moved the ball at all. Each of my comments has been directly related to points you have raised. You suggested that I consider what is just to be equal to what is constitutional. In response to that I clarified that I believe "just" can mean multiple things and that one thing that makes the outcome in Foster just in my mind is that the remedy chosen by the Ohio Supreme Court does not take away the rights of victims.

Although you may or may not agree with this position - there have been criminal defendants to argue that trial courts should be required to impose the minimum w/in the statutory range for every felony in order to correct the Blakely problems with Ohio's sentencing scheme. I believe that result would unduly restrict trial courts' discretion and would violate victim's rights. Therefore, one reason I believe Foster is a just outcome is because it did not apply that particular remedy. The Ohio Supreme Court helped ensure that trial courts could maintain the discretion necessary to continue to impose sentences that would further the purposes of sentencing.

Foster may well lead to judges imposing longer sentences and disparities in sentences. That's part of why guided sentencing schemes were created in the first place. Therefore, the legislature is free to change the sentencing scheme. It must simply do so in a constitutional manner. Until such time as the legislature should act, however, I see justice being served by the current remedy to the Blakely problems (as opposed to the alternative options suggested by defendants).

Posted by: anon | Mar 6, 2006 7:23:29 PM

This will be my last comment on this subject.

Anon, you did move the ball. Doug's original post linked a memo from the Fairfield County Prosecutor's Office. That memo doesn't mention victim's rights--in fact, the word 'victim' doesn't even appear in it. My original comment was directed solely at that memo, which I took as symptomatic of a problem that Foster will no doubt encourage: laziness amongst prosecutors and the elected judiciary.

I take that point as made.

Posted by: Anonymous | Mar 7, 2006 6:35:45 PM

Well, you're right the Prosecutor's memo didn't discuss victims. However, my comment relating to victims was in direct response to your question which stated "How is it 'just' to remove the guidance required by the legislature?" You didn't ask how the memo or prosecutor answered this question, therefore I provided my own thoughts. That's why the ball hasn't been moved, at least not by me.

Posted by: anon | Mar 8, 2006 10:32:35 AM

Posted by: richard | Jun 26, 2007 1:50:20 PM

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March 1, 2006

A prosecutor's view on Foster

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