Nix the 'Fix': An Analysis on Ohio's Criminal Sentencing Law and its Effect on Prison Population
Author | Amber G. Damiani |
Position | J.D., Capital University Law School, summa cum laude, 2019; M.A., Ohio University, 2016; B.A., Ohio University, 2015 |
Pages | 77-109 |
NIX THE “FIX”: AN ANALYSIS ON OHIO’S CRIMINAL
SENTENCING LAW AND ITS EFFECT ON PRISON
POPULATION
AMBER G. DAMIANI*
I. INTRODUCTION
For decades, Ohio has been trying to find ways to combat its rising
prison population. With the introduction of Senate Bill 2 (hereinafter S.B.
2) in 1996,
1
the Ohio legislature thought it had found some relief when the
number of inmates housed began to decrease after the first full year of the
law’s implementation. However, this progress stalled in 2006 when the
Ohio Supreme Court ruled Ohio’s sentencing system under S.B. 2
unconstitutional and effectively rewrote sentencing protocols.
By 2007, the Ohio Department of Rehabilitation and Correction
(hereinafter O.D.R.C.) was operating at 126.9% capacity and housing
48,482 inmates, which was up from the 45,189 inmates that were recorded
in the previous year.
2
From here, the numbers only began to rise. By
2009, Ohio had reached a record high of 50,884 inmates, with O.D.R.C.
operating at 132.8% capacity.
3
In 2011, House Bill 86 (hereinafter H.B.
86) was enacted with the goal of reducing the growing number of inmates
housed with O.D.R.C.
4
To this end, H.B. 86 targeted those committing low-level felonies for
the first time by guiding judges to impose community control sanctions
Copyright © 2019, Amber G. Damiani.
* J.D., Capital University Law School, summa cum laude, 2019; M.A., Ohio University,
2016; B.A., Ohio University, 2015. I would like to t hank Professor Scott A. Anderson of
Capital University Law School. This paper would not have been possible without his
invaluable guidance and legal insight throughout the process of writing this Article. I
would also li ke to thank my mo ther, Drema G. Tarantelli, for her unwavering love and
support in this endeavor.
1
David J. Di roll, Thoughts On Applying S.B. 2 to “Old Law” Inmates, OHIO CRIMINAL
SENTENCING COMM’N, https://supremecourt.ohio.gov/Boards/Sentencing/resources/general/
SB2.pdf [https://perma.cc/8XCV-FDX6] .
2
OHIO DEP’T. OF REHAB. AND CORR., MASTER POPULATION COUNTS (Jan. 1, 2007),
https://www.drc.ohio.gov/reports/population-count (Fourth Quarter 2006); OHIO DEP’T. OF
REHAB. AND CORR., MASTER POPULATION COUNTS (Jan. 1, 2006), https://www.drc.ohio.gov/
reports/population-count (Fourth Quarter 2005).
3
OHIO DEP’T. OF REHAB. AND CORR., MASTER POPULATION COUNTS (Jan. 1, 2009),
https://www.drc.ohio.gov/reports/population-count (Fourth Quarter 2008).
4
Diane V. Grendell, Consecutive Sentencing Deja Vu, 26 OHIO LAW., Jan.–Feb. 2012,
at 8, 9.
756 CAPITAL UNIVERSITY LAW REVIEW [47:755
versus imposing a prison sentence. However, this plan failed miserably;
the prison population continued to increase over the years. The
explanation for this failure comes from H.B. 86’s incorrect diagnoses of
the prison overcrowding problem.
Although it is true that low-level, nonviolent offenders did make up a
large percentage of those incarcerated, the majority of those incarcerated
were there because they had recidivated or violated the requirements of
their community control sanction. Further, judges were already adhering
to the practice of sentencing first-time, nonviolent offenders to community
control sanctions instead of prison sentences, given SB 2’s sentencing
presumptions. Thus, H.B. 86 enacted a law which was targeted at a
population of offenders who were not actually in prison.
The question for Ohio lawmakers now is what legislative changes will
accurately address prison overcrowding and mitigate the rising prison
population. This article attempts to answer this question. In doing so, this
article will discuss the Sixth Amendment’s impact on judicial sentencing,
Ohio’s judicial response to those constitutional requirements, and Ohio’s
legislative responses to reducing prison population over the past decade.
Finally, this article suggests that the key to solving Ohio’s prison
overcrowding problem is a legal one and proposes methods to further
reform Ohio’s sentencing law, while still remaining true to criminal justice
principles and comporting with constitutional requirements.
II. SIXTH AMENDMENT’S RIGHT TO A JURY TRIAL AND ITS IMPACT
ON JUDICIAL SENTENCING
Historically, an individual’s right to a jury trial is anchored in two
Constitutional protections.
5
First, the Constitution of the United States
affords an individual the right, “in all criminal prosecutions, . . . to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed . . . . ”
6
Second, the
Constitution of the United States protects an individual from being
deprived of one’s “liberty . . . without due process of law . . . . ”
7
In
criminal proceedings, “due process of law” requires that “the prosecution
bear[] the burden of proving all elements of the offense charged, and must
persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary
to establish each of those elements.”
8
The rights prescribed by the Sixth
5
Sullivan v. Louisiana, 508 U.S. 275, 278 (1993).
6
U.S. CONST. amend. VI.
7
U.S. CONST. amend. V.
8
Sullivan, 508 U.S. at 277–78 (internal citations omitted).
2019] NIX THE “FIX” 757
and Fifth Amendments are inherently connected and, read together, entitle
an individual to the right to have a jury find every fact beyond a reasonable
doubt in order to be convicted guilty of the crime for which he or she is
charged.
9
Viewing these protections within the context of judicial sentencing
procedures, the procedural safeguards afforded by the Constitution extend
to determinations of sentence length.
10
When construing a federal statute,
the Court opined that, other than a defendant’s criminal history, any fact
that increases the maximum penalty for a crime “must be charged by
indictment, proven beyond a reasonable doubt, and submitted to a jury for
its verdict.”
11
When presented with the question of whether the protections
of the Fifth and Sixth Amendments as applied to federal sentencing
structures would produce the same result as when analyzing state
sentencing procedures, the Court held that the coexistence of one’s right to
a jury trial under the Sixth Amendment and one’s right to due process
under the Fourteenth Amendment “commands the same answer in [a] case
involving a state statute;” thus, a State is bound by the same Constitutional
requirements when contemplating its sentencing systems.
12
Although the State has the inherent power to define its crimes,
including the elements of the crime and the crimes’ corresponding
sentence,
13
a State cannot “circumvent the protections of [the Constitution]
merely by ‘redefining the elements that constitute different crimes, [and]
characterizing them as factors that bear solely on the extent of
punishment.’”
14
In 1986, the United States Supreme Court first addressed
9
Id. at 278.
10
Mullaney v. Wilbur, 421 U.S. 684, 703–04 (1975).
11
Jones v. United States, 526 U.S. 227, 252 (1999).
12
Apprendi v. New Jersey, 530 U.S. 466, 476 (2000).
13
Id. at 471.
“It goes without saying that preventing and dealing with crime is much
more the business of the States than it is of th e Federal Government,
and that we should not lightly construe the Constitution so as to intrude
upon the administration of justice by the individual States. Among other
things, it is normally ‘within the power of the State to regulate
procedures under which its laws are carried out, including the burden of
producing evidence and the burden of persuasion,’ and its decision in
this regard is not subject to proscription under the Due Process Clause
unless ‘it offends some principle of justice so rooted in the traditions
and conscience of our people as to be ranked fundamental.’”
McMillan v. Pennsylvania , 477 U.S. 79, 85 (1986) (internal ci tations omitted) (quoting
Irvine v. California, 347 U.S. 128, 201–02 (1954)).
14
Apprendi, 530 U.S. at 485 (quoting Mullany, 421 U.S. at 698).
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