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May 1, 2007

Geography and sentencing differences in Ohio

Thanks to ODPI, I saw this interesting article in the Defiance Crescent-News, entitled "Felony sentencing philosophy reflects community values," which details how local geography impacts sentencing outcomes in different ways in capital and non-capital cases.  Her is how it starts:

Do judges in Ohio's rural counties send certain offenders to prison at a higher rate than judges in larger counties?  The answer -- according to three area common pleas court judges -- is yes.  And they make no apologies for it.

"It's definitely true that convicted offenders in rural areas are sent to prison more than in the metropolitan areas, particularly in drug cases," said Joseph Schmenk of Defiance County. "I think most judges have a sentencing philosophy which reflects their county's values and mores," he added. "I don't think there's anything wrong with that."

May 1, 2007 at 07:24 AM | Permalink

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Prof. Berman points to a news story that highlights the differences in sentences handed out in rural areas and urban areas. The post itself is innocuous, but the comments are very interesting, albeit contentious. The gist of the reporting is that sente... [Read More]

Tracked on May 2, 2007 6:32:58 PM

Comments

What sort of "values" require people to serve more time in prison for the same crimes then people in another part of the state?

Posted by: S.cotus | May 1, 2007 7:31:45 AM

I think it is a difference in the degree of intolerance towards criminal activity that is not restricted to rural Ohio.

Posted by: John Neff | May 1, 2007 8:25:33 AM

S.cotus--the answer to your question is self-evident. The statutory schemes in all 50 states allow for a range of punishment for virtually all crimes. Certain locales will assign different average punishments for similar crimes. That is local democracy in action--kind of, if you will, federalism on a state level. That's the value.

Posted by: federalist | May 1, 2007 8:42:42 AM

“Federalism on a state level.”
Wow! If I didn’t know that you were serious, I would think that was funny. However, city judges and country judges are enforcing the same laws and are appealed to the same court. Unlike state and federal judges they are interchangable. (In some states there are different degrees of autonomy of municipalities, but I don’t think you are talking about this.) Now, maybe if there were different crimes at issue, you might have a point, but there are not.

Underneath it is a strange layer of judicial activism, in which judges declare that local “values” mandate not that they attempt to figure out what the “law” is, but what they want it to be. This is what we pretend to do all day, though we tell non-lawyers that there is an “objective” definition of “the law” which, by some strange coincidence is always fits our clients’ position. A judge that disagrees is an activist, it my book,

It may be that some crimes committed in rural areas are hurt more people, or do more damage to society, and therefore the discretion of judges could rightly reflect this. Though my gut reaction is that urban crimes actually hurt *more* people, but this would require findings of fact to flesh out.

On a personal level, perhaps I see this. People in rural areas are generally ignorant and poor. They don’t have much of a chance of going to college. If they don’t join the military, they SHOULD be in jail longer. Indeed, a country criminal will never do any good for society. City criminals are sophisticated and even the worst of them embody more of the values that the state (as opposed to an individual judge) considers important.

Or maybe this is just about country judges sentencing people longer so that the local government doesn’t have to foot the bill.

Posted by: S.cotus | May 1, 2007 9:28:44 AM

S.cotus--surely you are aware that the "law" has multiple permissible outcomes from a particular set of facts?

Posted by: federalist | May 1, 2007 9:49:20 AM

I read this blog regularly for a couple of reasons. I find the subject interestng and relevant to my job. I also had the privilege of taking multiple classes from Professor Berman in law school. I have noticed that there are a number of individuals who regularly post comments regarding the topics posted. S.cotus is one of them. Perhaps I should simply assume that S.cotus was attempting humor when he or she began by calling people in rural counties "generally ignorant and poor." But then again, there is that saying about assuming something. So instead, I'll give him the benefit of the doubt for now and ask him to explain his insult and completely offensive remarks about the people I serve on a daily basis.

Also, I'm curious as to just what expenses a rural county would be avoiding footing the bill for if it sentences a person to, say 12 months for felony possession of drugs instead of 6, or to 4 years for burglary instead of 2.

Posted by: Rural County Prosecutor | May 1, 2007 11:24:39 AM

RCP,

First of all, calling people in rural counties “stupid” and “poor” is a pretty normal practice. In fact, lawyers (including prosecutors) do it on a regular basis. It might not be politically correct, but people seem to judge others on the extent of their education and wealth. Heck, lawyers judge each other based on what school they went to. And., believe me, there are lawyers who use far worse terms to refer to graduates of schools ranked by US News even slightly below them. So, while I admire your “service” to the citizens, we need to be honest in admitting that a prejudice exists against people that lack in education. (Some would dispute whether prosecutors are really “Serving” the people, but I am going to put that aside.) Is this humor? Partly.

Secondly, since rural people tend to lack education they generally, in fact, do have attributes that society does not value as much as their urban brethren. And, since most sentencing schemes “reward” conformity with certain societal values it is a fair bet that rural people, lacking those attributes (such as education, a record of charitable contributions, etc.) would be punished more severely at sentencing.

In some places (I don’t know if Ohio is one), people sentenced to shorter periods in jail do their time at “county” (or a similar name) which is paid for by the locality, and people sentenced to longer periods do their time at “state” which isn’t paid for by the county.

“Discretion” generally has multiple “permissible” outcomes, but if one views the law as a system of directives, then there is only one set of such directives. (This is a pretty deep area of jurisprudence, and probably goes beyond the scope of this blog.) However, the exercise of “discretion” itself by a fact-finder doesn’t, itself establish “law” (by most accounts), instead whatever mechanisms are available to enforce the ultimate ruling based on that discretion would.

Posted by: S.cotus | May 1, 2007 1:39:47 PM

Gratiano, er S.cotus, once again you run the risk of getting whipped by a mere transactional lawyer, although one at a top firm, the fact is, and I suspect you know this, is that the "law" is not a mathematical function (i.e., one output for one input) with respect to sentences. Thus, since there is a range of sentences, some counties within a particular state are likely to be more lenient with respect to a crime than others (and yes, the ability to pass along costs to the state may influence some decisions).

You may not agree with that--but geographic disparity goes hand in hand with judicial discretion in sentencing, as the exercise of discretion to be harsher than the norm may be concentrated in certain counties.

As for your urban/rural distinction--a mite simplistic, no, since urban areas tend to have many more social strata . . . . . .

So tell me again S.cotus, how is it that the US would have to withdraw from GC if it were to implement battlefield tribunals with respect to determination of protected status or not? Where's your citation for that one?

Posted by: federalist | May 1, 2007 2:13:19 PM

Gratiano, er S.cotus, once again you run the risk of getting whipped by a mere transactional lawyer, although one at a top firm, the fact is, and I suspect you know this, is that the "law" is not a mathematical function (i.e., one output for one input) with respect to sentences. Thus, since there is a range of sentences, some counties within a particular state are likely to be more lenient with respect to a crime than others (and yes, the ability to pass along costs to the state may influence some decisions).

You may not agree with that--but geographic disparity goes hand in hand with judicial discretion in sentencing, as the exercise of discretion to be harsher than the norm may be concentrated in certain counties.

As for your urban/rural distinction--a mite simplistic, no, since urban areas tend to have many more social strata . . . . . .

So tell me again S.cotus, how is it that the US would have to withdraw from GC if it were to implement battlefield tribunals with respect to determination of protected status or not? Where's your citation for that one?

Posted by: federalist | May 1, 2007 2:13:34 PM

Federalist,

First, declaring yourself to “win” doesn’t make your argument better. Perhaps if someone were to analyze two arguments on whatever constitutes a neutral basis and decide which one was better, a “winner” might be declared.

Also, because you lack knowledge of rather basic terms of art, I doubt that you are any kind of lawyer. You probably would have realized the analytic jurisprudential dispute about whether a “sentence” is the “law” or rather the enforceability of such sentence is the law, but rather some sort of “finding” of fact. This dispute is quite live, and is somewhat fascinating to me, because each Supreme Court justice seems to have different ideas about where the lines between these things lie.

Maybe people in rural areas are different than city folk. However, my view of rural people not having the values that the law values seems to make sense, and explains why they go to jail longer.

I don’t see what the Geneva Conventions have to do with Ohio. Since the great war, only a fraction of the country thinks of Ohioians as the enemy. However, the US is free to withdraw from them. Further, under the law as it stands (including Army Regulations) determinations of POW status can be made on the “battlefield.” But there is no provision for shooting people not entitled to such protection. But, I don’t see what this has to do with sentencing in Ohio.

Posted by: S.cotus | May 1, 2007 2:37:26 PM

Gratiano, er S.cotus, take some Pepto Bismol, it may cure the DOM that ails you.

Posted by: federalist | May 1, 2007 3:13:32 PM

Gratiano, er S.cotus, take some Pepto Bismol, it may cure the DOM that ails you.

Posted by: federalist | May 1, 2007 3:13:50 PM

It is not normal to call residents of rural counties "stupid and poor" where I live. When you own between 160 to 640 acres of farm land you may have a cash flow problem but you are not poor and at this time only smart farmers can stay in business.

Most of the people in jail for more than three weeks are likely to be sent to prison on a conviction on a new charge or because of a parole/probation revocation. I did a study of Iowa prison inmates and found that most of the persons sentenced to prison by a rural county court were not residents of that county (probation is not a realistic option for a nonresident). An older study of Iowa jails also showed that most jail inmates were not residents of the county. This is because non residents are most likely to flee.

Posted by: John Neff | May 1, 2007 3:24:45 PM

John, Thank you for actually responding to my argument. Obviously a farmer might have non-liquid assets. But, the stereotype still remains.

I don't see, however, how the liklihood of flight matters.

Federalist, Since you didn't respond to my arguments, yet posted anyway, it would seem that you are conceding them. Does this mean "I win!"?

Posted by: S.cotus | May 1, 2007 3:36:46 PM

No Gratiano, er S.cotus, it means that I'm not going to bother to respond . . . .

Posted by: | May 1, 2007 3:44:13 PM

You just did. Three times.

Posted by: S.cotus | May 1, 2007 4:06:29 PM

"the 'law' has multiple permissible outcomes from a particular set of facts"

What are you talking about? No, that's not true.

The law and the rule of law require advance notice of punishment and applicability across the board ("No one is above the law, and no one is below the law."). See Hammurabi's Code, Code of Justinian (providing notice and general applicability). Although in a sense the rule of law only requires a central authority and a monopoly of power -- for instance, we referred to the "return of the rule of law" in Bosnia -- at the root of what is the "law" is the notion of equal protection.

You can poke holes in this objective view in the abstract, and there's discretion and unreviewability, as to factual findings and jury verdicts, for example. "Transactional law" may require less certainty about the reliability of the outcome than criminal law (see, for example, the standards of proof for verdicts), but even there of those varying outcomes only one is permissible and correct once you've "cooked" the facts in trial.

We do (of course) require equal protection of the law, which (of course) does not allow for arbitrary punishments. Geographic location of the sentencer and other non-legal considerations having nothing to do with the offense or the offender are arbitrary bases for sentencing disparity.

Posted by: rothmatisseko | May 2, 2007 9:23:52 AM

"I think it is a difference in the degree of intolerance towards criminal activity that is not restricted to rural Ohio."

That level of tolerance is set at the state level, in the sentencing statutes, though, yes?

Posted by: rothmatisseko | May 2, 2007 9:28:13 AM

Depends on what you mean by arbitrary punishment. Is drawing a "hang 'em high" judge in a discretionary sentencing regime "arbitrary". I would argue that it is, but no serious observer thinks that the EPC is violated.

Posted by: federalist | May 2, 2007 9:55:39 AM

Roth, I sort of like the lay vision of the “hang ‘em high” judge as a means to illustrate this jurisprudential problem. I have two visions of such judges. Strangely, this issue was addressed head-on in Cunningham, but people don’t seem to care.

1) He simply will never credit any testimony favorable to a defendant, and never construe any ambiguous law in favor of a defendant regardless of any countervailing principles such as the rule of lenity (which might not apply at sentencing). This probably violates due process, but if he is smart enough he can hide this fact. But, based on specific findings, he would reach the same conclusion as a judge without such an irrational blood lust. Again, his findings are probably “illegal” but they can be enforced much easier, because the legal error is more difficult to determine or articulate to a court of appeals – but, and this is key – this doesn’t mean such legal error doesn’t exist. Likewise, the execution of the sentence is probably “legal” in the sense that the court does have jurisdiction to sentence people to jail.

2) The second model doesn’t have any bias regarding credibility of witnesses, and doesn’t actually reach any conclusions in advance. Instead, he applies what he believes to be the law, and adds 25% to each sentence. (I guess people would argue that this is what a “country” judge would do, because, as I gather from the above comments, most criminals in the country are “outsiders” and need to be punished more. I think they country criminal need to be punished more because they don’t reflect my values which are: education, wealth, and style.). This would be an easier “equal protection” problem, since the sentencing disparities are not based on any rational relationship to the state’s interests. (The practice of using subjective beliefs and a judge’s view of “policy” that is unsupported by the legislative view seems to have been squarely rejected in Cunningham, and found its way into Alito’s dissent.).

Posted by: S.cotus | May 2, 2007 10:54:58 AM

I live in a state where the statute sets the maximum prison sentence for a particular offense class and the minimum prison sentence for a subset of offense types. What I was talking about was the difference between counties in the rate of use of probation. What the data shows is that in rural counties judges not as likely to use probation. In a number cases the same judge in an urban county will use probation under what appear to be similar circumstances.

Posted by: John Neff | May 2, 2007 11:58:03 AM

The big unspoken irony in this article is that sentencing disparities between rural and urban counties was one of the motivating problems for the "guided discretion" embodied in the 1995 Ohio Felony Sentencing Reform Act.

The attitudes of these three judges are the inevitable result of the intellectually vacuous remedy chosen by the Ohio Supreme Court when it applied Blakely in State v. Foster.

Posted by: Jay Macke | May 2, 2007 2:36:07 PM

"Is drawing a 'hang 'em high' judge in a discretionary sentencing regime 'arbitrary'. I would argue that it is, but no serious observer thinks that the EPC is violated."

Whether the bias is found to be an equal protection violation or a procedural or even substantive due process violation, it's still arbitrary, as you say.

Posted by: rothmatisseko | May 2, 2007 5:16:52 PM

I the discrepancy is related to volume. Part of it might be 'values' but I think it's primarily the volume of cases in higher populated areas that drives lower sentencing / plea bargains.

Posted by: womanofthelaw | May 2, 2007 8:45:11 PM

Having been a prosecutor in both a big city and a small county, it has been my experience that small jurisdictions have far higher sentences for most crimes. Here are a factors consider:
1) Sentencing options: large jurisdictions have a lot more alternatives to jail: substance abuse treatment, half-way houses, GPS monitoring, work release, etc. Most small counties have the county jail, state prison, and probation. When your toolbox has three tools, and two are hammers, a lot of things start looking like nails.
2) The first question a jury was asked in the big city was: "do you know the judge, the attorneys, or the parties?". A yes resulted in a strike for cause. If you did the same thing in a small county, you would never have a trial. People pay attention and know what is going on. Every arrest is in the local paper, and if someone's name turns up on a serous charge and he is out on the street the next day, the judge and the prosecutor will get a dozen phone calls from concerned citizens. And each call will include a polite reminder that judges and prosecutors are elected.
3) In a city of a million people, if you send a burglar to prison, nothing changes. In a town of a thousand people, if you send a burglar to prison, there are no more burglaries.
Finally, in all the talk about uniform application and objective standards, you need to remember two things. First, sentences are normally reviewed for abuse of discretion, not deviation from the norm. You could design a system where all you have to do is fill in a worksheet and get the exact sentence, but that is not what we have. And second, many states systems are founded on principles of Jacksonian democracy. Having government officials accountable to their immediate constituants is a central tenent of this system, and this leads to differences in the exercise of whatever discretion is allowed under the law.

Posted by: Wobbs | May 2, 2007 9:19:13 PM

Wobbs, was it your experience in small towns/counties that outsiders (i.e., non-locals) really got the hammer. I would imagine so--especially things like drug-dealing. I have a prosecutor buddy from law school who took pleasure in telling stories of city drug dealers who were dumb enough to get caught drug dealing in rural areas and really got the book thrown at them. Smarter criminals are aware of the county line. In Indiana, for example, there is a world of difference between Lake County and Newton County.

Plus, I would imagine that in smaller jurisdictions things like rape etc. are very unlikely to be pled down. Wobbs, was that your experience?

Posted by: federalist | May 2, 2007 10:19:58 PM

Federalist, it is funny you should mention Indiana, because that is where I practice. In small counties they joke about someone with a "Lake County" (which is Gary) or "Marion County" (Indianapolis) criminal record. It entails a lot of arrests with most ending in dismissals or a fully suspended sentence. No criminal in his right mind would commit a crime outside of those two counties, especially Indy. You might get a judge like the one in Hamilton county who gave a child molester something like 240 years, and then suspended four of them on probation. Word of that kind of thing gets out quick.
I can tell you that charge bargaining is a lot less common in smaller jurisdictions. There are a lot of reasons for this, mostly stemming from caseloads. For example, there is no screening division in a small county. You get the police report, you write the charge, and you take it to trial. In a large jurisdiction, the screening deputy and the trial deputy are pretty far removed, and the trial deputy may not see the file until it is too late to file an amendment, so you tend to upcharge and cram in every possible charge at the beginning. This is how disorderly conducts become felony batteries. Also, a small county may have a high end drug charge six or seven times a year, as opposed to having two courts working major drug felonies full time. The same goes for the other big ticket cases: rapes, child molests, OWI deaths, home burglaries, and robberies. When you handle fifty major felonies a month, you want to move them. When you handle five, you want to nail them. And smaller dockets mean fewer cases getting pushed aside. In Indianapolis, if a defendant moved for a speedy trial, it usually got him a better plea as the deadline approached and new cases piled up. In a small county that just would not work. In one county nearby, the judge will set a trial in no more than ten days if you ask for a speedy.
As far as bias against "big city folk", the pleas were the same no matter where the defendant was from. But Indianapolis or Cincinnati defendants tended to have more of a criminal record, and the sentences were just higher, plea or trial.

Posted by: Wobbs | May 2, 2007 11:26:26 PM

I went to law school in Indy. It's funny to hear your comments about a "Marion County" criminal record. The old Marion County prosecutor (Scott Newman?) used to have a "plead to the lead" policy, and supposedly it was tough, but he (or more accurately, his deputies) had to deal with judges like Z. Mae Jimison (a real moron and soft on crime), as well as crowded dockets and a much less favorable venire than say Hamilton County or Johnson County, or even Hendricks County.

Supposedly too, the jurisdiction crossing issue pops up in DC, and I imagine in many many places around the country. I remember reading in the Washington Post that some defense attorneys counsel their DC clients not to cross into Virginia to work their mayhem. And I agree, you would have to be out of your mind as a criminal to cross certain county lines in Indiana to commit crimes.

Posted by: federalist | May 2, 2007 11:50:24 PM

Collegue: This message is to the comment adressed to Honrable Judge Z. Mae Jimison. Judge Jimison had the courage, strength, and character to rule on cases as she deeemed. She did not cringe to the political environment. The citizens of Indianapolis applaud her courage to buck the good-ol=boy network of politics. She suffered the consequences of this political regime. Most of her critics are simply jockeying for position. Let it be written: Hon. Judge Mae Jimison is a woman of character, class, and individuality. We salute you Judge Jimison!

Larry Jeffries BA, MS
317-300-0430

Posted by: Lawrence Jeffries | Nov 7, 2007 2:17:15 AM

this is so crazy to sentence people on where they live. i think this is very unfair.

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Posted by: MA Dissertation | Oct 23, 2009 7:11:49 AM

"I think it is a difference in the degree of intolerance towards criminal activity that is not restricted to rural Ohio."

That level of tolerance is set at the state level, in the sentencing statutes, though, yes?

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