Ohio Commission reponse to Foster

David Diroll, the executive director of the Ohio Criminal Sentencing Commission, was kind enough to send me a copy of his Commission's formal staff response to the Ohio Supreme Court's big recent Blakely decision.  (I have done a lot of coverage of the Foster decision, much of which can be found linked in posts here and here.)   This memo, which can be downloaded below and was sent to Ohio's felony and appellate judges, has this comical opening:

Did you hear the one about the defendant whose right to a jury trial was vindicated by giving judges more power?  Welcome to the sentencing world wrought by the United States Supreme Court’s decisions in Apprendi v. New Jersey, Blakely v. Washington, and U.S. v. Booker and the Ohio Supreme Court's recent effort to make sense of them in State v. Foster and State v. Mathis.

Download ocsc_on_foster.doc

In addition, David sent me an e-mail which provided this interesting report on post-Foster developments the prosects for a "Foster legislative fix" in the near future:

As of now, the only direct legislative response to Foster is a bill being drafted for Rep. Bob Latta that simply strikes the offending language (per Foster) from key sentencing statutes. It does nothing to tackle sentencing consistency or other issues.  If enacted, it would merely make the statutes reflect the opinion, easing confusion among practitioners.  We have nothing more ambitious in the works at present, but are watching and weighing things.

At a glance, most current sentencing is in line with pre-Foster patterns.  But there are anecdotal examples of judges who are using maximum and consecutive terms in more situations (always mindful, of course, of the defendant's right to a jury trial).

If the legislature returns to larger sentencing issues, it probably will occur next session (2007-08). They simply won't be around much until November's lame duck session.