Ohio sentencing judges complain about lack of discretion to send offenders to prison

In the federal system, sentencing judges often complain about mandatory minimum sentencing provisions that limit their discretion to impose alternatives to incarceration on certain offenders.  In this interesting local article from Ohio, which is headlined "Judges chafe under new sentencing requirements," we hear of sentencing judges complaining about mandatory maximum sentencing provisions that limit their discretion to give prison terms to certain offenders. Here is how the article begins:

John Elder pleaded guilty to six counts of theft, three counts of insurance fraud and three counts of forgery in February. He stole from his church, and defrauded the insurance company he worked for. The prosecutor wanted to send him to prison. Fairfield County Common Pleas Judge Richard Berens agreed. But first, the judge had to jump through another hoop.

Last year the Ohio General Assembly passed a sweeping sentencing reform designed to reduce the prison population and promote community corrections. House Bill 86 requires judges to first consult with the Department of Rehabilitation and Correction if they want to imprison a first-time, non-violent, low-level felony offender like Elder.

It's not often prison time is sought for these offenders, Berens said. But as in Elder's case, it does happen, and many judges feel that the Legislature has impeded on their authority. Elder's sentence is still pending. "The law has only been in effect for six months, so (the offenders) are starting to filter through the system," Berens said. "I've had offenders who brazenly will come into the courtroom and say, 'You, judge, cannot send me to prison.' "

Some officials say the battle about how to treat low-level offenders may itself wind up in court. It will take some time, though, for the affected cases to trickle up to the appellate courts and possibly to the Ohio Supreme Court, said David Diroll, executive director of the Ohio Criminal Sentencing Commission.

Hancock County Common Pleas Judge Reginald Routson said since the courts have to consult the Department of Rehabilitation and Correction - an arm of the executive branch - H.B. 86 violates the separation of powers and is unconstitutional.

Berens has circulated a four-page letter to the media, legal circles, and even on the court's website criticizing the new law. He said there are cases when a person commits a number of low-level felonies at once, or has a long misdemeanor record, that do warrant prison time. "For example, an offender on any given day could have sexual intercourse with a 14-year-old girl, break into his neighbor's garage and steal tools worth $20,000, buy and sell up to 49 doses of heroin or LSD, and, upon being pursued by law enforcement in his vehicle, commit the offense commonly known as fleeing and eluding," Berens wrote. "... As a result of H.B. 86, at sentencing, a judge could not sentence the offender ... to prison."