Reaping what you sow

Russ Bensing, over at The Briefcase, has this interesting post about how the SCOTUS decision in Oregon v. Ice may affect Ohio sentencing law.

Here's the idea (simplified at every turn).

In 1996, responding to great disparity in sentences across the state and to a recognition that indefinite sentences (the ultimate duration of which were to be decided by the parole board) were in some sense dishonest the General Assembly enacted a comprehensive reform of felony sentencing in Ohio (SB 2). The key to SB 2 was that sentences would be cabined within a range (for instance, 3-10 years for a first degree felony). The presumption was that judges would impose the minimum sentence unless they made certain factual findings which would justify something more. Similarly, judges could only impose certain additions to sentences or make them consecutive if they found particular facts. The point was to control judicial discretion so that sentences would be consistent from courtroom to courtroom, from judge to judge, from one end of Ohio to another.

Then, beginning with Apprendi v. New Jersey in 2000 SCOTUS issued a string of decisions saying, in essence, that judges can't make factual findings that increase sentences; only juries can do that. In 2006, in State v. Foster, the Ohio Supreme Court acknowledged that much of SB 2 was unconstitutional in light of those SCOTUS cases. Although we (I wrote an amicus brief on behalf of the ACLU of Ohio) urged the court simply to accept the fact and recognize that since judges couldn't find those facts, sentences couldn't be increased. Let the legislature craft a new law if it didn't like the one that was left.

The court rejected our suggestion and rewrote SB 2 to remove any requirement of fact finding. That is, rather than say that since there was no constitutional mechanism within the statute to allow sentences to be increased, the court, in an opinion by Justice Lanzinger, said that sentences could be increased just because judges wanted them to be. And so, with some tinkering around the edges, that's how things have stayed. SB 2 remains on the books, but sections of it have been declared unconstitutional because that seemed to be required by Apprendi and the cases that followed it. But now SCOTUS has decided Ice.

Ice addressed an Oregon statute which, like SB 2, said that judges could only impose consecutive sentences if they made certain factual findings. No problem said SCOTUS. Except what about us in Ohio? What about SB 2 and consecutive sentences? What about Foster?

Here's what Russ has to say about where we are and might be going:

Back in April, Oregon v. Ice was brought up during oral argument in the Ohio Supreme Court in State v. Hunter (discussed here). Hunter involved the question of whether Foster did away with the add-on sentence for repeat violent offender specifications, and the prosecutor argued that Ice permitted judicial fact-finding for imposition of the additional sentence. I don’t think that’s correct, for reasons I explained at the time, but what I found notable was Justice Lanzinger’s comment that perhaps the court should revisit Foster in light of Ice.

That ultimately will happen; it’s just a question of when. And when it does, I’m betting that the Ohio Supreme Court finds that the statutes on consecutive sentencing it struck down in Foster aren’t unconstitutional after all, but should be enforced. (Those statutes are still there; despite amending RC 2929.14 eleven times since Foster, the legislature has never changed the wording on the subsection dealing with consecutive sentencing.)

And that will be the single best thing to happen to Ohio sentencing law in a long time. Even the Ohio Supreme Court, Lanzinger in particular, has noticed the gross disparity in sentences that has arisen since Foster gave trial judges unfettered discretion in sentencing. That arises much more from the decision as to whether to run the sentences concurrently or consecutively. The maximum sentence you can get in Ohio for any one crime — excepting murder, child rape, and a few others – is ten years. In that context, it’s not a big deal if one judge would give you five and the other ten. But the maximum consecutive sentence you can get is, well… ask Marquis Hairston, who’d doing 134 years for three home invasion robberies. Ending judges’ unfettered discretion to stack sentences would go a very long way toward ending the problem of gross disparity.

I think all that's right. But there's another point to make, this one about judicial integrity and statutory interpretation and the role of judges - balls and strikes if I have to go there - which is especially apt in light of the confirmation hearings going on this week.

While Lanzinger has been complaining about the sentencing disparities since Foster, she's also their architect. To see why, we need to look at both Foster and SB 2 a bit more closely.

Let's start with SB 2. Here's what the Ohio Supremes had to say about it in State v. Comer, a few years before Foster (I'm omitting citations).

Moreover, requiring the court to make these findings and give its reasons at the sentencing hearing comports with case law and with the purposes and intent of S.B. 2. Consecutive sentences are reserved for the worst offenses and offenders. . . . Consistency and proportionality are hallmarks of the new sentencing law. . . . While consecutive sentences are permissible under the law, a trial court must clearly align each rationale with the specific finding to support its decision to impose consecutive sentences. These findings and reasons must be articulated by the trial court so an appellate court can conduct a meaningful review of the sentencing decision. . . .

Got it. The goal of SB 2 was consistency and proportionality. Similarly situated felons should be treated the same. If a judge wanted to diverge from a presumptive sentence, then the judge had to have a basis in the record to find things that would justify the departure. And the courts of appeals could review sentences (and the underlying findings) to ensure that judges were, in fact, imposing generally consistent and proportional sentences. Whether you think that's a good idea or not, it's a coherent one.

That's the goal of SB 2 - of the sentencing reform system that was enacted by the General Assembly.

The goal of sentencing itself is different. According to Revised Code Section 2929.11,

The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender.

Got that. Sentences are supposed to be consistent and proportional across the state. That's the purpose of the law. In implementing that law, and within the context of that larger goal, judges are to impose sentences based on their factual findings that will protect and punish.

And then came Foster. In a unanimous opinion written by Lanzinger, the court recognized that under the Supreme Court's line of sentencing cases, the Sixth Amendment prohibited most judicial fact finding. Large parts of SB 2 were clearly unconstitutional. What to do?

The court's proper role when it finds a statute unconstitutional is to declare that it's no longer good law. Period. That, in the tired metaphor of the day, is calling balls and strikes. If the legislature wants to write a new, constitutional statute, it can go forth and do that. The legislature makes policy, writes law. Separation of powers. Each branch of government doing its own job with respect and deference for the other branches. Lanzinger, good Republican that she is, acknowledged as much.

However tempting it may be for this court to reconfigure the sentencing code to cause the least impact on our criminal-justice system, we must adhere to our traditional judicial role.

And so, while denying that she was doing so, Lanzinger rewrote the statute. Technically, what they did was to excise from the law the requirements that, in various contexts (and there remains some confusion about just which ones) judges must find facts before imposing sentences. Remove that, and you give judges complete discretion to impose whatever sentence they like in a case as long as it's within the statutory range. As Lanzinger explains the lesson of the SCOTUS cases:

Where sentencing is left to the unguided discretion of the judge, there is no judicial
impingement upon the traditional role of the jury.

That is, give judges freedom to pluck sentences out of their asses and the Constitution will be happy.

But wait, what about that whole consistency and proportionality thing? As Nero Wolfe would say, "Pfui" (which is how Rex Stout spelled it in the books.)

So we've gone from unbridgled discretion to a law designed to achieve consistency and proportionality to judicially ordered unbridled discretion to complaints from the judge who wrote the opinion favoring unbridled discretion that it results in unbridled discretion.

Once again, "Pfui."