Ohio judges (and prosecutors) lament new limits discretion to send offenders to prison

In the federal sentencing system, judges and defense attorneys frequently complain about mandatory sentencing provisions that require imposition of long prison terms on certain offenders. Now, as this new local article reports, in Ohio judges and prosecutors are complaining about new mandatory sentencing provisions that require imposition of no prison terms on certain offenders.   The piece is headlined "Judges are offended by new law on sentencing," and here are excerpts:

A Fairfield County judge ran up against Ohio’s new sentencing law last week and was prevented from sending an offender to prison. Instead, Common Pleas Judge Richard E. Berens must ask the state Department of Rehabilitation and Correction for non-prison alternatives before he sentences embezzler John W. “Bill” Elder.

Berens said the requirement amounts to asking permission from state bureaucrats to send someone to prison.  Other common pleas judges around Ohio agree. At issue is a requirement that judges who want to sentence offenders to prison must first ask state prison officials for alternative sanctions lasting at least one year.  If prison officials either cannot identify suitable local sanctions or fail to respond to a judge’s request within 45 days, the judge may go ahead with a prison sentence.

The requirement applies to the sentencing of first-time, nonviolent offenders convicted of fourth- and fifth-degree felonies.  Rather than prison, they must now be sentenced to a community-control program unless none is available.  The community-control programs may range from probation and drug treatment to county jail and other locked community correction centers.

The provision is included in a comprehensive sentencing law that took effect on Sept. 30. It is part of a package of changes intended to divert lower-level offenders from crowded state prisons into community-control programs.

This was the first time that Berens had run up against the requirement, which he said is bad public policy that removes judicial discretion and may violate the constitutional separation of powers by allowing the executive branch of government to override the judicial branch.  Other judges aren’t happy, either. They all noted, however, that they will follow the law. “This, in my opinion, is essentially an executive agency co-opting a judicial function,” said Hocking County Common Pleas Judge John T. Wallace.

The provision will be challenged, predicted Hancock County Common Pleas Judge Reginald J. Routson, a former president of the Ohio Common Pleas Judges Association who worked with lawmakers when the bill was being drafted.  He says legislators should have listened more to judges.  “It needs to be tested,” Routson said. “It is unlike any piece of legislation that I’ve ever seen.”

Sen. Bill Seitz, the Cincinnati Republican who was the law’s principal architect, disagreed that the provision undermines judicial discretion or the separation of powers.  The legislature continually enacts laws that affect what judges can do, including the requirement to impose mandatory minimum sentences for certain crimes, he said.

The debate reflects a tug of war between judges who want complete discretion in sentencing and elected leaders who have to fund the state prison system, Seitz said.  “If people want to raise Cain over this provision, how much in higher taxes are you willing to pay to build more prisons?” he said....

Fourth-degree felonies used to carry a maximum of 18 months in prison, and fifth-degree felonies a maximum of a year in prison.  County Prosecutor Gregg Marx said he and his assistant prosecutor decided to ask for up to 10 years [in the Eller case] because that punishment fit the crime.

Marx said he agreed with judges that the new law’s requirement to sentence lower-level felons to non-prison alternatives improperly removed judicial discretion and allowed the executive branch to encroach on the judiciary.

It is telling (and not all that surprising) that when the mandate to judges from applicable sentencing law is to impose more lenient sentences, prosecutors begin talking about the need for sentencing judges to be given more discretion.  It is also worth noting that in Ohio it was a Republican-dominated legislature that passed this mandate to seek non-prison sentences for low-level offenders and a Republican governor (John Kasich) that signed the bill into law.  As regular readers know, when money gets tight, the politics of sentencing reform will often change.  And, as this story highlights, when judicial discretion to increase sentences gets limited, who advocates for more judicial discretion will also change.