New law ties judges’ hands

Politicians shouldn’t dictate sentencing

Ohio’s judges — not lawmakers — should decide prison terms for convicted felons.

It was true when toughon-crime politicians were dictating excessive minimum sentences for certain crimes, and it’s just as true with a new law that goes in the opposite direction, ruling out prison terms for certain nonviolent, lowlevel offenders.

For this reason, Franklin County judges correctly have declined to participate in the Targeted Community Alternatives to Prison program until July, when the law will require them to.

The intent of the program, to encourage additional alternatives to prison, is on target. When the facts of the case call for it, community-based sentences have the dual benefit of being cheaper and more effective. And they don’t brand someone with a lifelong stigma.

The state needs to ease prison overcrowding and conserve tax dollars: Everyone sentenced to prison is a new expense for the state, but counties pay for local corrections programs.

But the program is too prescriptive. Participating counties agree not to give a prison sentence to anyone convicted of a fifth-degree, nonviolent felony if it isn’t a sex or drug-trafficking offense. In return, they get state dollars to offset costs of community-based alternatives, such as supervised probation.

But sometimes, say judges, prison is the only appropriate sentence even for a low-level offender, who might have repeatedly reoffended even after several community-corrections attempts.

In fact, Franklin County judges don’t generally need prodding to use alternative sentencing. The county has been a leader statewide in the movement, having opened the Community-Based Correctional Facility in 1994, when some county officials around the state still were reluctant to do so, for fear of being tarred as soft on crime.

Most Franklin County offenders who belong in community settings already are being sent there.

By waiting until next year to participate, Franklin County turns down $2.25 million, or half of the amount it was slated to receive over two years to help pay for alternativesentencing programs. Administrative Judge Stephen L. McIntosh said his fellow judges felt that, if they willingly gave up some sentencing options just for the money, “they would not be doing the job they were elected to do.”

While most counties can choose whether to participate in the diversion program, the law requires the 10 largest, including Franklin, to join by July 1.

The program might have an uncertain future, in any event. Many judges oppose it because of a disparate impact: Certain crimes would be subject to different punishments in different counties. Franklin County Prosecutor Ron O’Brien calls this “patently unconstitutional.” And former Ohio Supreme Court Justice Paul Pfeifer, executive director of the Ohio Judicial Conference, expects the program to be challenged in court.

Moreover, for many counties, the amount the state is offering — as little as $150,000 for the smallest counties — simply isn’t enough to cover the cost of operating the prison alternatives that ultimately could save them money.

If lawmakers wanted to lower prison spending by encouraging alternative sentencing, they should have done so by offering counties sufficient funding to cover the cost — not by tying judges’ hands with a take-itor-leave-it proposition they can’t afford.