“I wouldn’t do anything illegal. . . . I do whatever I think is right.”
Which is not quite an oxymoron, but is surely its kissing cousin. And, in this case, it's damned incestuous.
The speaker is the Honorable Michael Cicconetti, Judge of the Municipal Court in Painesville, Ohio. And while he may well do what he thinks is right, he's developing a reputation for issuing sentences which are, let me put this delicately, fucking illegal.
The speaker is the Honorable Michael Cicconetti, Judge of the Municipal Court in Painesville, Ohio. And while he may well do what he thinks is right, he's developing a reputation for issuing sentences which are, let me put this delicately, fucking illegal.
Times past, according to AP, he's
told a drunk driver to view crash victims’ bodies at a morgue and had teens in criminal mischief case fulfill community service by playing drums as entertainment at a park.
You may find those things fitting punishment. There may be a visceral appeal. Judge Cicconetti obviously thinks they're right. He explained his goal.
I do whatever I think will prevent a person from coming back in the courts again.
That sounds laudable. It's not the law.
Here's the Ohio Supreme Court, in State v. Beasley, a 1984 decision.
This court in Colegrove v. Burns (1964), 175 Ohio St. 437, 438 [25 O.O.2d 447], described the role of a trial judge in sentencing a convicted criminal:
"* * * Crimes are statutory, as are the penalties therefor, and the only sentence which a trial judge may impose is that provided for by statute * * *. A court has no power to substitute a different sentence for that provided for by law."
Any attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void.
Which would seem to be clear enough. Although judges . . . .
1999. Toledo. Danny Gears was facing sentencing for a burglary in which he stole some jewelry. In State v. Gears, the court of appeals told what happened.
At appellant's sentencing hearing, the trial court read the victim's impact statement, which stated that the jewelry and jewelry box taken from her by appellant had sentimental value and were never recovered. The judge then engaged in the following colloquy with appellant:
"THE COURT: What are you wearing around your neck?
"THE DEFENDANT: A necklace my ex-girlfriend gave me.
"THE COURT: Your girlfriend gave it to you. Does it have sentimental value?
"THE DEFENDANT: Yes, Ma'am."
She then ordered appellant to forfeit the necklace and other jewelry he was wearing as restitution.
No way, said the court of appeals.
Unless a specific sanction must be imposed or is precluded from being imposed pursuant to law, a trial court has the discretion to impose any sanction or combination of sanctions provided in R.C. 2929.14 through 2929.18. R.C. 2929.13(A). As applicable to this case, R.C. 2929.15(A) provides that "the court may directly impose a sentence that consists of one or more community control sanctions." A community control sanction is a sanction that is not a prison term, R.C. 2929.01(F), and may consist of (1) community control, R.C. 2929.15; (2) residential sanctions, R.C. 2929.16; and (3) financial sanctions, R.C. 2929.18.
A reading of these statutes reveals a total lack of any intent to authorize in-kind restitution. As aptly observed by amicus:
"[T]he law does not provide that because the victim may have lost items of sentimental value the offender may be deprived of items of sentimental value. Restitution as penalty is a financial rather than moral sanction. It is for that reason that the section of the Revised Code addressing restitution for felony offenses is captioned `Financial sanctions.' R.C. 2929.18."
Thus, we conclude that as a matter of law, the common pleas court lacked the authority to order appellant to surrender his personal jewelry as restitution.
Gears, of course, does not stand alone. Judges all too often believe their fiefdom's give them the right to create punishments. They shame defendants, making them wear signboards declaring themselves criminals. They order in-kind sentencing. They know, they just know, that if the criminal can feel the sting . . . .
Ah yes, the sting.
Diamond Gaston had a choice. She'd assaulted someone, spraying him with pepper spray. You can do 30 days, Judge Cicconetti offered, or you can let the guy you pepper sprayed pepper spray you. Gaston chose to be assaulted.**
That same day, the Judge sentenced a woman who hadn't paid her cab driver for a 30 mile ride. She, too, had a choice. She could do jail time, or pay $100 restitution and walk 30 miles. She chose to walk.
Maybe the Judge is right and these sentences are what the law should provide. But we live in Ohio, not a Gilbert and Sullivan Operetta. And whatever he may think, Judge Cicconetti is not the Mikado.
Law of Rule.
*Disclosure: I was amicus counsel in Gears.
** Much to the victim's displeasure, the judge didn't really let him use pepper spray on Gaston but ordered a saline solution instead.
Posts
I don't think I can go along with you here, Jeff. Seems to me if a judge says: here's a sentence provided by law, but I'll give you the alternative of x" and x is some exotic something or other I don't have a problem with it. I'm always suspicious of courts saying they "have no power" to do this or that, either because God knows that one's always selectively employed.
ReplyDeleteBut more fundamentally, sentencing is a peculiarly judicial function and I think we should be hesitant to let legislatures dictate to courts more than they already do on sentencing matters. Indeed I have often wondered why legislatures prescribe procedural rules for the courts - that's done in the federal system and in New York. Isn't there a separation of powers issue in there somewhere?
And what about public prosecutors? They are simultaneously both executive and judicial officers. Isn't that a problem?
Anyway, hadn't weighed in on any of your stuff in a while and I find this subject kind of problematic and interesting.
Whether the judicially offered alternative to a legal sentence is in any given case a good idea, it remains illegal. And, of course, the alternative may not be a good idea. (Sterilization for people who don't pay child support? Eating dog shit off the street for litterers? You never know what people will accept as an alternative to what the law provides. Thinking the judge will offer wise options - well, for every Solomon on the bench there's a Kim Jong Il (of Un).
ReplyDeleteThe benefit of the law is that it is the law. And, at least in theory, we can change it. The tyrant in the robes is a different matter.
As for legislatively imposed procedures - and for whatever it's worth, - in Ohio if there's a conflict between a procedural rule and a statutory procedure, the rule wins under the authority of the Modern Courts Amendment to our state constitution which makes the courts master of their procedures. At least half the time, we'd have a better system if the conflicts (and there aren't all that many) were resolved the other way.
I don't particularly trust any branch of government, and there's no really good way of determining who gets to sit on the bench, but if there's no good way, there are some ways worse than others. Here (as in the Buckeye State) the judiciary is elected. That's about as bad a way as you can find. The astonishing thing is that we actually have some really excellent judges. And then, some that aren't.
Whether the judicially offered alternative to a legal sentence is in any given case a good idea, it remains illegal. And, of course, the alternative may not be a good idea. (Sterilization for people who don't pay child support? Eating dog shit off the street for litterers? You never know what people will accept as an alternative to what the law provides. Thinking the judge will offer wise options - well, for every Solomon on the bench there's a Kim Jong Il (of Un).
ReplyDeleteThe benefit of the law is that it is the law. And, at least in theory, we can change it. The tyrant in the robes is a different matter.
As for legislatively imposed procedures - and for whatever it's worth, - in Ohio if there's a conflict between a procedural rule and a statutory procedure, the rule wins under the authority of the Modern Courts Amendment to our state constitution which makes the courts master of their procedures. At least half the time, we'd have a better system if the conflicts (and there aren't all that many) were resolved the other way.
I don't particularly trust any branch of government, and there's no really good way of determining who gets to sit on the bench, but if there's no good way, there are some ways worse than others. Here (as in the Buckeye State) the judiciary is elected. That's about as bad a way as you can find. The astonishing thing is that we actually have some really excellent judges. And then, some that aren't.
Well, let me suggest something. In what you might call practical, managerial terms the legislature functions like the board of directors in a corporation, and in the sentencing context maybe it's proper that although it's a peculiarly judicial function, the legislature can set sentencing limits when it defines a crime. And I think that's how it has historically panned out, with the caveat (I'm not sure about this) that historically legislatures only defined the maximum sentence. Meaning that the typical law said "not more than". But then we got mandatory minimums ("not less than") and to me that's questionable and maybe starts us down a slippery slope where legislatures get the idea they can tinker away. And that seems to me to be beyond the proper authority of the legislature, just like it would be highly inefficient and poor management for a board of directors to get into the day to day nitty gritty of running the business. And that's before you even get to the separation of powers problem, which of course is very serious and involves the check on government power whereas in the business context we're just talking about poor management.
ReplyDeleteBut getting back to the issue of alternative sentencing, I think you were absolutely right in Gears, but that involved this spontaneous, theatrical ultra vires act by some idiot judge. You deal nicely with the more difficult question of some outrageous alternative the judge offers, but I'm not sure the Gears rationale extends to an alternative sentence that is freely chosen. I'm tempted to say that the outrageous examples are subject to a "shocks the conscience" due process standard, but then Nino Scalia and others ridicule that standard all the time, not without justification.
I'm sure I don't have to tell you that judges have a tendency to become tyrants even when they are not inclined to tyranny to begin with. So there's that, then.
Maybe you could entertain the thought that in the last 50 or so years we have experienced a collapse of shared "values" that in the end may constitute the only real check on tyranny, from judges or any other government actor: in 1952 the relatively mild facts of Rochin v. California were conscience shocking; by 2003 the far more troubling facts of Chavez v. Martinez, not so much. I suppose we should be grateful that Chavez at least gave the SCOTUS trouble: fractured, plurality opinion and all.
https://scholar.google.com/scholar_case?case=13189177772806165249&hl=en&as_sdt=6&as_vis=1&oi=scholarr
That's Rochin.
https://scholar.google.com/scholar_case?case=9044555462545735988&q=chavez+v.+martinez&hl=en&as_sdt=6,33
That's Chavez.
Sorry to go on and on. And you might like the public prosecutor separation of powers problem as much as I do. I can see a very good argument that prosecuting attorneys have to be members of the judicial branch and no other, just like other attorneys. Not that we'll ever see that argument made in any serious way in our lifetime.