New sentencing law concerns local judge

DAVE MOSIER/independent editor

COLUMBUS – Van Wert County Common Pleas Judge Charles D. Steele has some concerns with new sentencing legislation that goes into effect on Friday.

The legislation, House Bill 86, recommended by the Ohio Department of Rehabilitation and Correction (ODRC) as a way to decrease the state’s burgeoning prison population, includes a number of provisions aimed at decreasing the number of inmates in Ohio’s prisons, including placing substantial hurdles in the way of handing down prison terms for non-violent offenders (including drug traffickers) charged with fifth- and fourth-degree felony offenses.

In addition, judges who feel they do not have available community control sanctions sufficient to fulfill the overriding purposes of sentencing must contact the ODRC for information on available programs. While the ODRC must respond within 45 days, sentencing must be delayed for that length of time to await the ODRC’s response. If the ODRC fails to respond in that length of time, sentencing can then proceed.

However, if the Corrections Department does respond with information on a program, the court must impose community control, even if the judge believes that the program is inadequate.

Judge Steele said the new law presents a number of problems, not the least of which is the possibility that forcing judges to hand down community control when they feel it is not adequate, is unconstitutional.

“There are questions as to the constitutionality of this provision, as it relates to the issue of separation of powers, when the ODRC, rather than the court, is the determiner of the sentence to be imposed,” Judge Steele noted. “Further, on the local level, if the court decides to impose a jail term as part of community control, the Van Wert County Correctional Facility can only take a limited number of prisoners, due to lack of funding.”

The problem is compounded, Judge Steele said, because the ODRC also wants to limit the type of offenders that can be sentenced to the Western Ohio Regional Treatment and Habilitation (WORTH) Center, a facility in Lima that provides treatment for defendants with substance abuse problems.

“As a further concern locally, if the court wishes to sentence an offender to the WORTH Center, ODRC is pursuing a policy that only ‘high risk’ F-4 and F-5 offenders can be sent to the WORTH Center, based on an assessment tool devised by the ODRC,” the judge noted in a news release.

The new law also includes a presumption that multiple sentences be served concurrently, rather than consecutively, mandating that a judge fulfill a number of criteria in order to impose consecutive sentences.

Other highlights of the bill include:

• Raising the fine threshold for a felony theft offense from $500 to $1,000.
• Treats crack and powder cocaine the same for the level of offense.
• Increases the maximum sentence for a first-degree felony from 10 to 11 years.
• Divides third-degree felony offenses into two categories. Currently, third-degree felonies are punishable by prison terms of 1, 2, 3, 4, or 5 years. Under the new law, upper tier F-3s would be punishable by prison terms ranging from 12 to 60 months, in six-month intervals. Sentences for lower tier F3s would be reduced to 9 to 36 months, in six-month increments. Current offenders’ sentences would be reduced to conform to the new law.
• Allows offenders in prison to earn credit for “good time.”
• Permits the ODRC to petition the court of early release of prison inmates after they have served 80 percent of their sentences.
• Expands treatment in lieu of conviction programs to include mental illness and intellectual disability, as well as drug and alcohol abuse.