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May 21, 2008

A Ohio judicial plea urging the Ohio legislature to fix post-Blakely mess

As detailed in this official press release and this local news report, a "134-year prison sentence for a man who tied up four people while ransacking their German Village-area homes does not violate the U.S. constitutional ban on cruel and unusual punishment, the Ohio Supreme Court ruled this morning."  This ruling in State v. Hairston, No. 2008-Ohio-2338 (Ohio May 21, 2008) (available here), is hardly surprising nor especially notable but for some interesting dicta arising in a high-profile local case.

The first bit of notable dicta comes at the end of the majority opinion, where the court issues this general call for what might be called sentencing civility: "When imposing sentence, courts must be faithful to the law, not be swayed by public clamor, media attention, fear of criticism, or partisan interest, and be mindful of the obligation to treat litigants and lawyers with dignity and courtesy."   Even more interesting is a call for legislative reform in the concurring opinion by Justice Lanzinger:

I write separately to urge the General Assembly to act to repair the damage done to Ohio’s criminal sentencing plan as a result of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, this court’s response to the United States Supreme Court decision in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403....

Unfortunately, the majority’s affirmation of Hairston’s sentence can be interpreted as effectively legitimizing noncapital life sentences and extending them to situations where no one is killed or seriously injured.  It is a rare victim who does not consider the crime committed by an offender to be undeserving of a maximum penalty. When a defendant is convicted of multiple offenses, the community may now expect maximum and consecutive prison terms as the default sentence.  It will take a courageous judge not to “max and stack” every sentence in multiple-count cases....

If the concerns expressed over prison crowding are legitimate, and the General Assembly is considering legislation that allows for the diversion of more nonviolent offenders as well as greater clemency powers for the executive branch, see 2008 Sub.H.B. No. 130, it may also well consider rewriting the statutes to restore guidelines for imposing consecutive sentences.  We are holding that a 134-year sentence is not cruel and unusual and does not violate the Eighth Amendment or Section 9, Article I of the Ohio Constitution. It is the General Assembly’s obligation to decide if such a sentence will become common.

May 21, 2008 at 04:43 PM | Permalink


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Effect of Blakely in Ohio: Doug Berman at Sentencing Law and Policy posted on the Ohio Supreme Court's decision in State v. Hairston, No. 2008-Ohio-2338 (Ohio May 21, 2008). The decision upheld a 134 year prison sentence for a man... [Read More]

Tracked on May 21, 2008 7:40:05 PM


There was also something (actually, quite a few things) notable in the Court Office's summary:

"Marquis Hairston...was convicted on 14 felony counts arising from three robberies that took place in the early morning hours of Sept. 27, Oct. 10 and 25, 2005. In each case, multiple robbers invaded the victims’ homes, forced them at gunpoint to take off all their clothing, tied them up and threatened them, and then left in the victims’ stolen vehicles after loading them with personal property taken from the homes. Hairston was apprehended by police after pawning items taken in one of the robberies, and subsequently admitted his involvement in all three incidents during a videotaped interrogation....Hairston entered guilty pleas to four counts of aggravated robbery, four counts of kidnapping and three counts of aggravated burglary, all with firearm specifications, and three additional counts of having a weapon while under disability. In exchange for his guilty pleas on those counts, the state agreed to withdraw the remaining charges.

"At the sentencing hearing...prosecutors pointed out that Hairston had been imprisoned on two previous occasions for robbery and burglary, had begun the string of robberies just seven days after being released from prison, and had not expressed remorse for his actions. The trial judge [also heard defense] arguments that Hairston’s young age (24), his completion of a GED while previously incarcerated and the absence of serious physical harm to any of the victims were grounds not to impose the maximum possible sentences."

So let's see what we have here. Hairston forced the victims at gunpoint to strip? Was there some reason for that other than to terrorize and humiliate them?

He had twice previously been in prison for minor league versions of the same offenses?

He was convicted (through his own admission) of four counts of ARMED KIDNAPPING, and not just property crimes?

Wss the ringleader of a rash of dead-of-night home invasions?

Expressed no remorse?

Began this escapade SEVEN DAYS after being released from prison?

My goodness. In view of these specific facts, it's straining at a gnat to believe that the sentence was driven by "public clamor" or "media attention." It's even more of a stretch to think that stacking terms "will become common," unless, that is, this sort of spectacular crime spree is common, which (fortunately) it certainly is not.

The problem here is not the sentence. The problem is Mr. Hairston. This guy is a murder waiting to happen. Kudos to the trial judge who (probably) understood this, and understood as well that it's time for Mr. Hairston to go bye-bye.

Posted by: Bill Otis | May 21, 2008 5:25:54 PM

Amen, Bill. Amen.

Posted by: federalist | May 21, 2008 5:29:37 PM

i'm curious, do you not have a totality principle in American jurisprudence? Here simply imposing consecutive sentences one on top of another, without then looking at whether the total sentence reflects the total criminality involved would be an appellable error.

The other thing i noted was the statement "The court referred to the purposes of sentencing – to protect the
public and to punish the offender" the other purpose as I understand it is rehabilitation. Or has that flown out the door as well?

Posted by: Cives Australis Sum | May 21, 2008 9:09:17 PM

Cives Australis Sum:

It's not that rehabilitation has flown out the door. It's that Hairston pushed it off the balcony. He did this when, after two prior stints in the pokey for somewhat similar crimes, he came right out and did it again, only worse.

How many chances do we owe this guy? And who do you nominate to pay the price when he does it a fourth time?

Posted by: Bill Otis | May 21, 2008 10:23:34 PM

Thank god no one got killed and that this turkey will die behind bars.

Posted by: federalist | May 21, 2008 10:40:44 PM


It's been a couple of days now, and the sentences-are-too-long contingent seems notably silent here, even though the sentence was well over 100 years.

Could it be that when confronted with the specifics of a case put forth comprehensively and by a neutral source (here, the court office), the standard liberal line doesn't sound so good?

Posted by: Bill Otis | May 23, 2008 8:37:35 AM

Mr. Otis and federalist, I assume you're not Ohioans. I would suggest that you don't understand the sentencing problems we have here. Our prison population just hit 50,000 for the first time ever, and I can assure you that the vast majority of those incarcerated are not as unsympathetic as Marquis Hairston.

Mr. Hairston's case is particularly unsuitable to address the issue that Justice Lanzinger is talking about -- in light of State v. Foster, trial courts now have essentially unbridled discretion to impose maximum and consecutive sentences on anyone convicted of any felony. This has led not only to prison overcrowding, but the shifting of emphasis from community corrections to prison for minor felony and first-time offenders. This is both unjust and a waste of resources.

Mr. Hairston's Eighth Amendment claim, it was a loser from the outset. But it should at least strike you as somewhat odd that Mr. Hairston will die in prison with no chance of parole, but a person convicted of murder in Ohio will is given an opportunity to be released on parole at some point.

Posted by: Jay Macke | May 23, 2008 1:33:25 PM

Yeah, Bill, I noticed that. The same thing occurred with my criticism of the use of "model" to describe a child porn victim.

Jay, not sure what you're asking about Hairston's sentence. He's a career criminal. Not all murderers are. Personally, I think the default rule for murder ought to be death, so yes, from my point of view, it is "odd". But it does not follow that Hairston should be treated more leniently simply because a murderer might get out.

Posted by: federalist | May 23, 2008 3:50:10 PM

Custom built homes are the best way to go in my opinion. That way you get exactly what you want from your new home and you won't need to spend all of that extra money on remodeling.

Posted by: Schumacher Homes | Sep 19, 2008 1:30:48 PM

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