Sentencing review strives for balance
State corrections Director Gary Mohr believes the system sends too many people to state prisons who shouldn’t be there.
Union County Prosecutor David Phillips takes a harder line, saying that many criminals deserve the accountability of hard time.
Franklin County Common Pleas Court Judge Charles Schneider desires more sentencing discretion to better match the offender and crime to the appropriate sanction.
Amid a glut of nonviolent drug offenders and probation violators serving time in state prisons, Ohio again is taking a look at criminaljustice reform.
The effort seeks to tweak the system and criminal sentencing to account for the impact of violent crime and opioid-fueled offenses “while enhancing public safety.”
The 24-member “Justice Reinvestment” committee also hopes to reduce recidivism while pursuing schemes to better route offenders to the right place, whether prison or local community control programs.
Emphasis will “explicitly focus on what is happening before prison, or in other words, the system’s ‘front end,’ where many decisions are made that impact both future judicial and corrections practices,” said Michael Buenger, administrative director of the Ohio Supreme Court.
The committee, which includes Mohr, Phillips, Schneider and other judges, prosecutors, lawmakers and state and local officials, is scheduled to submit a report and recommendations to the General Assembly in the fall of 2018.
The group began its work this month with a report from the Council of State Governments Justice Center that laid out the scope of its challenge:
Reflecting the opioid addiction crisis, drugabuse arrests increased 12 percent in Ohio to more than 32,000 annually between 2011 and 2016. Only North Dakota and South Dakota saw a higher increase. A total of 5,609 drug offenders were committed to state prisons last year alone.
Property crime decreased 23 percent between 2011 and 2016 but violent crime ticked up 6 percent over 2015 and 2016, mostly because of increases in Cleveland, Dayton and Toledo. “Low-level crimes drive arrest activity and limit law enforcement’s capacity to respond to violent crime.”
Ohio has the nation’s third-highest rate of people on probation and parole, nearly 244,000 at the end of 2015. Offenders released and then sent back to prison for probation violations account for 23 percent of annual commitments to state prisons. “Ohio still lacks a coherent strategy for recidivism reduction.”
The number of offenders in the $1.8 billion-a-year prison system grew by 9 percent between 2000 and 2016, with the population generally holding steady since 2007 around 50,000 to 51,000. Offenders, in general, also are serving longer stretches in prison. “Prison crowding and costs remain high.”
Ohio’s criminal sentencing scheme “has contributed to crowded prisons and large misdemeanor and felony probation populations. ... Ohio law shows a micromanaged approach to sentencing policy that is needlessly complex.”
State prisons housed 8,300 offenders when Mohr joined the Ohio Department of Rehabilitation and Correction as a teacher’s aide in 1974. By the middle of last year, that number had increased six-fold to 51,014 prisoners (just a tad off the all-time high), who cost an average of $72 a day to house.
“Think about the budget, the amount of investment, the reason why we’re still on this path,” Mohr said. “I think there are too many Ohioans incarcerated. It’s a much better investment to place nonviolent offenders in community programs. All evidence shows it’s twice as effective at onethird the cost.”
Mohr is encouraged by a community-alternative program in which the state is spending up to $58 million over two years to divert low-level, nonviolent felony offenders, many convicted of drug possession, from state prisons to local programs. Since the middle of last year, the prison population has dropped nearly 5 percent to 48,799. Forty-eight participating counties are using work-release, substance-abuse treatment, intensive supervision and other programs. Franklin and other large counties still are deciding whether to participate.
Mohr said the state should invest in the lives of low-level offenders “earlier in their lives” in local corrections programs to help address employment, behavioral health and substance-abuse issues before they lead to more serious offenses and state prison time. “All of the counties that have tried it loved it. Ohio is, in my mind, safer than it was before.”
Part of the group’s discussions should center on taking some low-level felonies, such as simple drug possession, that are contributing to prison packing and making them misdemeanors to be handled locally, and improved probation services, Mohr said.
Judge Schneider said that judges are chafing under some criminal sentencing guidelines. “Mandatory sentencing makes sense for crimes like murder and rapes, but some of the drug charges where it is mandatory is frustrating,” he said.
Judges should be free to tailor sentences for lower-level offenses to match the offender and his crime “if you can articulate specific facts” whether a prison sentence is appropriate or not, he said.
“If you want us to treat certain (felony) offenses as misdemeanors, then make them misdemeanors. Quite frankly, the legislature doesn’t have the will to do that,” Schneider said, adding, for example, that the current fifthdegree felony threshold of $500 in a theft offense should be raised. Lawmakers, he said, are too fond of creating new offenses and tinkering with prison sentences.
The state’s current scheme also is “schizophrenic” about drug addicts, the judge said. “We say it’s not his fault, it’s a disease. But when that person breaks into a house to fund that disease, it becomes a serious crime. It’s the same person, folks,” Schneider said.
Union County’s Phillips said that, from the perspective of prosecutors, “our primary interest is public safety, No. 1, and holding offenders accountable, No. 2.”
He differed from Mohr’s assertion that prison is not appropriate for some. “You should talk to victims of crime and see if they think that is true. Community control sanctions do not work for some people and they need to go to prison.”
Phillips cited examples of some low-level felony offenders ducking prison sentences and racking up repeat offenses while some offenders repeatedly violate second chances while on probation.
“From our perspective, the offender is simply thumbing his nose at the court. At some point, there has to be punishment for that crime,” he said.