LIMA — To the casual observer, the criminal justice system can seem not only confusing but at times vastly random and unjust.
One defendant gets a lengthy prison sentence, while another gets what is widely perceived as the proverbial “slap on the wrist.”
While it may seem there is no rhyme or reason to the imposition of sanctions for felony violations in Ohio, an Allen County judge says lawmakers have put in place some distinct guidelines to guide jurists.
State legislators in recent decades crafted laws intended to deter criminal activity, ease overcrowding in the state’s penal institutions or both. Those laws in some cases have tied the hands of judges who are on the front lines of the deliverance of justice.
Judge Jeffrey Reed took his seat as a judge in Allen County Common Pleas court in 1999, about the same time as the Ohio General Assembly enacted Senate Bill 2, a massive set of guidelines more commonly known as the Truth in Sentencing Bill.
“Judges still have some discretion in crafting their sentences, as long as it’s within the boundaries established by the legislature,” Reed said earlier this week. “In some cases, the public may see what they believe to be disparate sentences, but if you look deeper into the factors and circumstances judges are required to consider, it will explain why certain sentences are imposed.”
A 13-page journal entry is filed with the clerk of court’s office for every defendant sentenced in common pleas court. It includes a laundry list of criteria judges must evaluate when crafting their sentences.
“There are 20 or 30 factors we are required by state statute to consider when imposing a sentence,” Reed said. “Chief among those is the defendant’s likelihood to commit future crimes. Recidivism is probably the most important factor.”
Other considerations judges must weigh, all of which are spelled out by state statute, include but are not limited to:
• Has the defendant been adjudicated a delinquent child as a juvenile?
• Has he/she previously been convicted of a felony offense as an adult?
• Was the crime in question committed while the defendant was under community control sanctions or probation?
• Does the defendant show a pattern of drug or alcohol abuse related to the offense?
• Does the defendant show genuine remorse?
The answer to each question has the potential to affect a defendant’s sentence.
Additionally, starting in February 2018 following voter approval of a measure to give greater voice and increased constitutional rights to victims of crimes in Ohio, Marsy’s Law is another factor judges must take into consideration. Victims must be granted the opportunity to state their thoughts and wishes during the sentencing phase.
‘Presumptions’ vs. ‘judgment calls’
Felony charges in Ohio carry with them certain presumptions — spelled out by lawmakers — in favor of or against certain prison sentences. First- and second-degree felonies have a built-in presumption that a prison term will be handed down. For fourth- and fifth-degree felonies, the presumption favors probation in lieu of prison. For felonies of the third degree the presumption is neutral, allowing the judge greater latitude in crafting a sentence.
Another state law, the Targeted Community Alternatives to Prison program, or TCAP, actually prohibits prison sentences for most low-level offenders. Allen County is among a handful of counties across the state to participate in the program that provides funding for community-based alternatives to prison. Reed said the program was initiated “in reaction to prison overcrowding.” Under TCAP, low-level defendants charged with a fifth-degree felony crime in nearly all cases are not sent to prison.
“But there are exceptions,” Reed said. “It doesn’t mean we can’t send a defendant charged with an F5 to prison if they’ve committed an offense of violence or a sex crime, for instance.”
Another factor lawmakers insist judges consider at the time of sentencing is a defendant’s ORAS score, an acronym for the Ohio Risk Assessment System. The report offers judges a glimpse into a defendant’s likelihood to commit future crimes.
“The legislature felt we should give some credence to it, but I feel there’s a lot of subjectivity that goes into a defendant’s score. I depend a lot on information that is obtained from the defendant himself,” Reed said, who has often expressed displeasure for the ORAS system.
“Judges with experience on the bench are pretty good evaluators of a risk of re-offending without an ORAS score. Say, for instance, there is a person charged with a second-degree felony who has a high ORAS score, yet at the time of sentencing the victim steps forward and, in what I think of as true Christian forgiveness, says they want the defendant to receive a lesser sentence.
“Do I give a sentence at the low end of the range or the high end? Sometimes it just comes down to a judgment call,” Reed said.
Allen County is serving as a pilot site for a statewide project spearheaded by the Ohio Supreme Court that Reed hopes will shed more concrete data on sentencing trends.
Last fall the Ohio Sentencing Commission and the Ohio Supreme Court began a project called the Ohio Sentencing Data Platform to address concerns from the 1999 Ohio Supreme Court racial fairness commission and create a statewide database to gather concrete information about the fairness and proportionality of criminal sentences in Ohio.
“Hopefully this will lead to good data on how people are sentenced,” Reed said.
‘The most difficult thing I do’
“Sentencing someone is the most difficult thing I do,” Reed said. “I’m depriving people of their liberty, and no judge takes that lightly. But there are specific reasons for sentencing people the way we do. It’s not just willy-nilly.
“I study the pre-sentence investigation; I hear from the state, the defense, the defendant’s family and the victim. What I can’t do is to let the community decide my sentencings. I’m bound by the law,” the veteran jurist said.
“Since 1999 the legislature has adopted a lot of laws that in my opinion just make things more complicated,” Reed said. “But those laws don’t inhibit my decision-making; they actually explain to the community what goes into my decisions.
“There’s a reason for what kind of sentences people get. It’s certainly not based on race or gender or on whether the judge is having a bad day. It’s based on pages and pages of factors,” Reed said.
“Every person is an individual and every case is different.”