Nix the 'Fix': An Analysis on Ohio's Criminal Sentencing Law and its Effect on Prison Population

NIX THE “FIX”: AN ANALYSIS ON OHIO’S CRIMINAL SENTENCING LAW AND ITS EFFECT ON PRISON POPULATION AMBER G. DAMIANI * I. I NTRODUCTION For decades, Ohio has been trying to find ways to combat its rising prison population. With the introduction of Senate Bill 2 (hereinafter S.B. 2) in 1996, 1 the Ohio legislature thought it had found some relief when the number of inmates housed began to decrease after the first full year of the law’s implementation. However, this progress stalled in 2006 when the Ohio Supreme Court ruled Ohio’s sentencing system under S.B. 2 unconstitutional and effectively rewrote sentencing protocols. By 2007, the Ohio Department of Rehabilitation and Correction (hereinafter O.D.R.C.) was operating at 126.9% capacity and housing 48,482 inmates, which was up from the 45,189 inmates that were recorded in the previous year. 2 From here, the numbers only began to rise. By 2009, Ohio had reached a record high of 50,884 inmates, with O.D.R.C. operating at 132.8% capacity. 3 In 2011, House Bill 86 (hereinafter H.B. 86) was enacted with the goal of reducing the growing number of inmates housed with O.D.R.C. 4 To this end, H.B. 86 targeted those committing low-level felonies for the first time by guiding judges to impose community control sanctions Copyright © 2019, Amber G. Damiani. * J.D., Capital University Law School, summa cum laude , 2019; M.A., Ohio University, 2016; B.A., Ohio University, 2015. I would like to thank Professor Scott A. Anderson of Capital University Law School. This paper would not have been possible without his invaluable guidance and legal insight throughout the process of writing this Article. I would also like to thank my mother, Drema G. Tarantelli, for her unwavering love and support in this endeavor. 1 David J. Diroll, Thoughts On Applying S.B. 2 to “Old Law” Inmates , OHIO CRIMINAL SENTENCING COMM’N, https://supremecourt.ohio.gov/Boards/Sentencing/resources/general/ SB2.pdf [https://perma.cc/8XCV-FDX6] . 2 OHIO DEP’T. OF REHAB. AND CORR., MASTER POPULATION COUNTS (Jan. 1, 2007), https://www.drc.ohio.gov/reports/population-count (Fourth Quarter 2006); OHIO DEP’T. OF REHAB. AND CORR., MASTER POPULATION COUNTS (Jan. 1, 2006), https://www.drc.ohio.gov/ reports/population-count (Fourth Quarter 2005). 3 OHIO DEP’T. OF REHAB. AND CORR., MASTER POPULATION COUNTS (Jan. 1, 2009), https://www.drc.ohio.gov/reports/population-count (Fourth Quarter 2008). 4 Diane V. Grendell, Consecutive Sentencing Deja Vu , 26 OHIO LAW., Jan.–Feb. 2012, at 8, 9. 756 CAPITAL UNIVERSITY LAW REVIEW [47:755 versus imposing a prison sentence. However, this plan failed miserably; the prison population continued to increase over the years. The explanation for this failure comes from H.B. 86’s incorrect diagnoses of the prison overcrowding problem. Although it is true that low-level, nonviolent offenders did make up a large percentage of those incarcerated, the majority of those incarcerated were there because they had recidivated or violated the requirements of their community control sanction. Further, judges were already adhering to the practice of sentencing first-time, nonviolent offenders to community control sanctions instead of prison sentences, given SB 2’s sentencing presumptions. Thus, H.B. 86 enacted a law which was targeted at a population of offenders who were not actually in prison. The question for Ohio lawmakers now is what legislative changes will accurately address prison overcrowding and mitigate the rising prison population. This article attempts to answer this question . In doing so, this article will discuss the Sixth Amendment’s impact on judicial sentencing, Ohio’s judicial response to those constitutional requirements, and Ohio’s legislative responses to reducing prison population over the past decade. Finally, this article suggests that the key to solving Ohio’s prison overcrowding problem is a legal one and proposes methods to further reform Ohio’s sentencing law, while still remaining true to criminal justice principles and comporting with constitutional requirements. II. S IXTH A MENDMENT ’ S R IGHT TO A J URY T RIAL AND ITS I MPACT ON J UDICIAL S ENTENCING Historically, an individual’s right to a jury trial is anchored in two Constitutional protections. 5 First, the Constitution of the United States affords an individual the right, “in all criminal prosecutions, . . . to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . . ” 6 Second, the Constitution of the United States protects an individual from being deprived of one’s “liberty . . . without due process of law . . . . ” 7 In criminal proceedings, “due process of law” requires that “the prosecution bear[] the burden of proving all elements of the offense charged, and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to establish each of those elements.” 8 The rights prescribed by the Sixth 5 Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). 6 U.S. CONST. amend. VI. 7 U.S. CONST. amend. V. 8 Sullivan , 508 U.S. at 277–78 (internal citations omitted). 2019] NIX THE “FIX” 757 and Fifth Amendments are inherently connected and, read together, entitle an individual to the right to have a jury find every fact beyond a reasonable doubt in order to be convicted guilty of the crime for which he or she is charged. 9 Viewing these protections within the context of judicial sentencing procedures, the procedural safeguards afforded by the Constitution extend to determinations of sentence length. 10 When construing a federal statute, the Court opined that, other than a defendant’s criminal history, any fact that increases the maximum penalty for a crime “must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.” 11 When presented with the question of whether the protections of the Fifth and Sixth Amendments as applied to federal sentencing structures would produce the same result as when analyzing state sentencing procedures, the Court held that the coexistence of one’s right to a jury trial under the Sixth Amendment and one’s right to due process under the Fourteenth Amendment “commands the same answer in [a] case involving a state statute;” thus, a State is bound by the same Constitutional requirements when contemplating its sentencing systems. 12 Although the State has the inherent power to define its crimes, including the elements of the crime and the crimes’ corresponding sentence, 13 a State cannot “circumvent the protections of [the Constitution] merely by ‘redefining the elements that constitute different crimes, [and] characterizing them as factors that bear solely on the extent of punishment.’” 14 In 1986, the United States Supreme Court first addressed 9 Id. at 278. 10 Mullaney v. Wilbur, 421 U.S. 684, 703–04 (1975). 11 Jones v. United States, 526 U.S. 227, 252 (1999). 12 Apprendi v. New Jersey, 530 U.S. 466, 476 (2000). 13 Id. at 471. “It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally ‘within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,’ and its decision in this regard is not subject to proscription under the Due Process Clause unless ‘it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental.’” McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986) (internal citations omitted) (quoting Irvine v. California, 347 U.S. 128, 201–02 (1954)). 14 Apprendi , 530 U.S. at 485 (quoting Mullany , 421 U.S. at 698). 758 CAPITAL UNIVERSITY LAW REVIEW [47:755 this issue of characterization when the constitutionality of States’ sentencing structures whose systems made a distinction between “sentencing factors” and “elements” were challenged. 15 An “element” of a crime is a fact in the definition of an offense that must be proven in order to be convicted of a particular crime. 16 A “sentencing factor” is a circumstance that “supports a specific sentence within a range authorized by the jury’s finding that the defendant is guilty of a particular offense.” 17 The Court first addressed this distinction when a Pennsylvania sentencing statute allowed a judge to impose a mandatory minimum sentence if the judge found by a preponderance of the evidence that the defendant possessed a firearm during the commission of the offense. 18 This sentencing scheme was challenged on two grounds: first, visible possession of a firearm is an element of an offense, not a sentencing consideration; second, the burden of proof being a preponderance of the evidence standard violates Due Process. 19 First, the Court upheld the distinction in the sentencing scheme on the basis that it is within the State’s power to define its crimes and penalties for those crimes, and the State was simply giving statutory weight to “one factor that has always been considered by sentencing courts to bear on punishment.” 20 Second, the Court upheld the burden of proof standard because “[s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof.” 21 In 2000, the Court revisited this distinction in Apprendi v. New Jersey and clarified that when a “sentencing factor” increases the maximum penalties the defendant is facing, then it is a “sentence enhancement” because it effectively operates as an element of a greater offense, and thus needs to be proven beyond a reasonable doubt. 22 Furthermore, the Court made it clear that whether something is an “element” of an offense or a “sentencing factor,” it is a question not of its “label,” but of its “effect” on the defendant’s...