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Published: Monday, 9/26/2011 - Updated: 2 years ago

Local judges assessing sentencing-reform law

New Ohio statute goes into effect Friday

BY ERICA BLAKE
BLADE STAFF WRITER

When Luis Osley entered a plea last week in the shooting death of an East Toledo store owner, he typically would have had to wait at least two weeks for a sentencing date.

But with changes in the sentencing laws quickly approaching, both his attorney and the assistant Lucas County prosecutor asked that Osley receive his sentence before anything new takes effect.

On Friday, Osley received 23 years in prison for involuntary manslaughter and aggravated robbery convictions. Because the state’s new sentencing laws weren’t in place, he won’t be eligible for early release or good time credit, but he also wasn’t subjected to additional years for the first-degree felonies.

During the months that state lawmakers worked to balance Ohio’s overextended budget, they were also putting together a new way for state courts to do business. Known by some as the “prison-reform” legislation, House Bill 86 makes significant changes in felony-sentencing laws and the juvenile-justice system and goes into effect Friday.

State officials said that the changes will help Ohio’s bulging prison system, which has for years operated over its capacity.

Locally, attorneys and judges are still trying to determine what it all means.

“We’re going to great lengths to get up to speed very quickly,” said Judge Myron Duhart of Lucas County Common Pleas Court. Judge Duhart, the newest member on the bench, expressed concerns that some of the new guidelines take away a judge’s ability to look at cases individually.

“None of the judges want to be restricted as to sentencing options,” he said. “No particular case is a cookie-cutter case; every case is different. We want the ability and the flexibility to sentence appropriately.”

Over capacity

According to the Ohio Department of Rehabilitation and Correction, the state prisons housed about 51,000 inmates in 2010, about 31 percent over capacity.

State analyses of the bill indicate that the changes are intended to reduce the cost of operating the prison system, to reduce the number of low-level offenders in prison, and to enhance the juvenile justice system.

Highlights of the lengthy bill — about 140 pages — include several changes in rules governing how judges sentence felony convictions.

For example, the law generally requires judges to order community-control sanctions, not prison, for nonviolent, first-time offenders convicted of a fourth or fifth-degree felony. The bill does allow discretion if the crime was committed with a gun or if the offender committed physical harm to another person while committing the offense.

Fourth and fifth-degree felonies are punishable by prison terms of up to 1½ years and one year, respectively.

The law further lowers the maximum prison penalty on a third-degree felony from five to three years, except if the crime is an offense of violence, a sexually oriented offense, aggravated vehicular homicide, aggravated vehicular assault, or a repeat robbery or burglary.

Also, first-degree felony maximums will be raised from 10 years to 11 years.

Cocaine distinction

One change no one seems to be troubled by is the removal of a distinction between crack and powder cocaine and so making all laws pertaining to cocaine possession the same.

The juvenile system is to have several significant modifications, including competency reform and changes in the certification process.

Judge James Jensen of Lucas County Common Pleas Court noted that the new law, in essence, added a significant element to the purpose of sentencing. No longer is it just to “protect the public and punish the offender,” he said.

“Now it’s protect the public, punish the defendant, but with minimal sanctions and considering the budget,” the judge said.

“They may have solved one problem but created 88 other problems, which is the number of counties there are,” he added. “This is going to cause a huge [financial] burden on local courts in terms of utilization of community sanctions that are available.”

The judge noted that in any given week, the use of community sanctions — including the Corrections Center of Northwest Ohio, the Community Treatment Facility, work release, and electronic monitoring — are over capacity, sometimes significantly. He said that while the court’s budget continues to be cut, the state now has added more responsibilities.

Specifically, with lower level offenders now being put on community control rather than in prison, probation departments across the state will be stretched thin, the judge said.

Potential funding woes

“I understand the need for the state to do this,” he said, noting that the county’s own jail is under federal mandate because of overcrowding. “… But how do we do this? How do we comply with the statute completely and keep the community safe when we are being asked to cut budgets?”

Defense attorney David Klucas, who practices throughout the region, said he too sees potential fiscal problems for counties but noted that prison overpopulation is a serious issue. He said while most Lucas County judges tend not to send low-level offenders straight to prison, it is a practice in other counties.

The new law may change some of that, he said.

“In my practice, it’s really, really rare for me to come up with a first-time felony four or five offender who should go to prison. [This law] mirrors what sentencing should be,” he said.

Mr. Klucas, who has been practicing 23 years, said that he applauds many of the changes, including the expansion of the diversion and intervention programs, granting judges more discretion for early release, and expanding sentence options to include monthly increments.

He further noted that what is characterized as the “worst” offenders — those facing charges such as murder and rape — appear not to gain any benefits in the new laws.

“Here’s the thing, our prisons are crowded, overcrowded,” he said. “This seems to be better than what we have right now.”

Bates’ stance

Lucas County Prosecutor Julia Bates said she believes that the changes were a result of state lawmakers “emptying the prisons to balance the budget on the backs of victims.”

Mrs. Bates said she understands the budgetary issues involved in running a prison system and agrees with the notion of putting dollars toward prevention. But, she added, that it is “unrealistic” to believe that some offenders will be deterred by what she believes is a “slap on the wrist.”

“I don’t agree with it,” she said. “It has tied the hands of the courts in terms of what they can do.”

Ottawa County Prosecutor Mark Mulligan agrees. He said in his years practicing in the criminal justice system, since 1997 as prosecutor, he has not seen someone in his county sent to prison that he believed should not have gone. On the other hand, he has seen some offenders placed on community control when he believed prison was more appropriate.

“I think what will happen, those people in the first or second or even third go-around who didn’t land in prison, will eventually be going to prison. They’ll just be loose in the community longer before they go,” he said. “Before where there was a presumption of probation, now there is mandatory probation and I think it will put a lot more pressure on the resources of the local communities.

Low-level felonies

“And based on past practice, I doubt the money going to the local governments will offset the additional work they will have to do,” he added.

Wood County Common Pleas Court Judge Robert Pollex said he too was most surprised by the limitations in sentencing low-level felonies. He added that community-based correctional facilities, such as the Correctional Treatment Facility in Lucas County and the Northwest Community Correctional Center in Wood County, were created as alternatives to prison but now are being shifted for use as re-entry programs.

“That is the one I find most difficult to live with,” Judge Pollex said of the change.

The judge noted that when the previous law regarding sentencing, Senate Bill 2, was enacted on July 1, 1996, it was a “huge change.” He said that the recent legislation seemed to just be “fine tuning” what is already in place.

Attorney Jane Roman, who represented Osley, noted that the change in the law would have exposed her client to an additional two years in prison because of the new maximum of 11 years. But while that was a risk she wanted to avoid, she noted that he would not be eligible for possible early release or earned credit.

Back to society

Ms. Roman said that she believed the bill was a good attempt at trying to keep some of the less serious offenders out of prison and instead, offer them more rehabilitative programs. Noting that the most serious offenders are exempt from most of the benefits, Ms. Roman said the law appears to consider more the fact that most of those people sent to prison will one day come back.

“They’re trying to find local rehabilitation options rather than just sending to prison,” she said. “They’re looking at the fact that these people are going to be going back into the community and how will they function.”

Judge Gene Zmuda of Lucas County Common Pleas Court said he understands that with the input of many judges statewide, the laws are more palatable to the judiciary than what was originally proposed. He said that while some portions of the law are restricting, others are simply puzzling.

For example, adding a second classification of third-degree felonies.

“It’s now the law and I’m charged with enforcing it,” Judge Zmuda said. “I would much rather deal with the imperfections of this legislation than have the prison numbers continue to swell and then be dealing with having to release offenders.”

Contact Erica Blake at: eblake@theblade.com, or 419-213-2134.



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