Prison-diversion program criticized

The 43-year-old career criminal broke into three Obetz businesses — a market and two pizza parlors — by smashing windows or door glass with rocks and concrete blocks over a four-day period last summer.

A Franklin County Common Pleas judge sent him to prison for two years, a decision that was upheld last week by the county court of appeals.

But under a program in which Franklin County will be required to participate beginning next July, the state will penalize the county for sending such an offender to prison.

The Targeted Community Alternatives to Prison program, approved by legislators in June as part of the state budget, seeks to reduce the prison population by diverting nonviolent, lowlevel felons to probation, local jails or communitybased programs.

In return, the counties will receive grants from the state Department of Rehabilitation and Correction to offset the cost of supervising, treating or jailing those offenders in their communities.

The program, advocated by prisons Director Gary Mohr and Gov. John Kasich, has received opposition from judges and prosecutors across the state since it was proposed.

Most judges don’t like it because “it infringes on our discretion by telling us there are certain felons we can’t send to prison,” said Judge Stephen L. McIntosh, the administrative judge for Franklin County Common Pleas Court.

Some counties have decided that the grant money being offered by the state won’t be enough to cover the costs of keeping offenders in the community who otherwise would have gone to prison.

Others have offered a harsh assessment of a program that gives grants to judges in exchange for keeping certain offenders out of prison.

“Essentially what judges are being offered is a bribe,” Stark County Common Pleas Judge Kristin Farmer said in August when she and her colleagues on the bench encouraged their county commissioners not to participate in the program this year, the Canton Repository newspaper reported.

Franklin and Stark are among the state’s 10 largest counties, all of which are mandated under the law to participate in the program beginning July 1, 2018.

Franklin County’s Common Pleas judges will meet Tuesday to decide whether to participate in the program before the mandate kicks in, McIntosh said.

Last week, Cuyahoga County joined Stark in deciding not to implement the program until next summer.

“The state’s offer of resources is completely inadequate to the demands that it will put on our local jails and our systems,” Armond Budish, the Cuyahoga County executive, said in a news release.

The state’s three largest counties — Cuyahoga, Franklin and Hamilton — are each designated to receive $4.5 million for the 2018 and 2019 fiscal years for the program. The two-year funding can be as little as $150,000 for the smallest counties.

Under the program, offenders convicted of fifthdegree felonies, the lowest felony level, are not to be sentenced to prison unless they’ve committed a violent offense, a sex crime or a drug-trafficking offense. The state correction department estimated that 4,000 such offenders were sent to prison last year.

If a participating county sends someone to prison in violation of the criteria, their grant money will be docked $72 a day for each day the offender is held in a state facility.

Clinton County Common Pleas Judge John W. “Tim” Rudduck has been participating since October in a pilot program to test the concept and is a vocal supporter of its benefits.

“I’m looking at it from the perspective of a single judge in a semi-rural county with limited resources,” he said. “The money we have received has been instrumental in developing resources (to support alternatives to prison) that we never had before.”

Before the program was implemented, some offenders were going to prison simply because Clinton County didn’t have the resources to treat or supervise them in the community, he said.

The program is voluntary for 78 counties. So far, 48 counties have agreed to implement the program. Of the six counties surrounding Franklin, three (Licking, Pickaway and Union) are participating and three (Delaware, Fairfield and Madison) are not.

A system in which some Ohio counties follow the program and other don’t is “patently unconstitutional,” said Franklin County Prosecutor Ron O’Brien.

The Ohio Constitution, he said, requires “uniform operation” of all laws. That concept is violated when a defendant receives a prison sentence in one county for an offense for which he would be prohibited from receiving prison in another.

Those “equal protection” concerns are almost certain to lead to legal challenges for the program, said Paul Pfeifer, executive director of the Ohio Judicial Conference.

“I’d fully expect a test case to be filed on that issue,” said Pfeifer, a former state Supreme Court justice and state senator.

His organization, which represents all judges in Ohio, has expressed concerns about the program, but wants to work with judges to make its implementation as smooth as possible now that it’s the law, he said.

“It’s too early to get into excessive handwringing over this until we see how this shakes out.”