[sound familiar, anyone?]

March 7, 2006

Ohio lawmakers set ambitious goals 10 years ago when they rewrote the rules on how criminals are sentenced to prison.

They wanted to ensure that offenders served their entire sentences and that similar crimes resulted in similar punishments. "Truth in sentencing" was supposed to revamp the state's criminal justice system for the next century.

A decade later, many of those reforms are gone or are in jeopardy.

The Ohio Supreme Court wiped out several key provisions last week when it eliminated guidelines for imposing sentences, a move that gave judges far more power to decide the severity of punishments. The court ruled that sentencing guidelines are unconstitutional because the factors judges weigh, such as criminal history, are not first considered by a jury.

The court's decision was the latest and most significant blow to a reform effort that has been on the ropes almost since it began in 1996.

Courts, legislators and prison administrators have chipped away at truth in sentencing for years, allowing early prison releases and removing rules intended to ensure sentence consistency.

"What we started with is pretty much gone," state Rep. Tyrone Yates, D-Cincinnati, said of the reforms. "... Now we're in this mess."

The result is a system that's confusing and unpopular. Judges complain that the system is needlessly complicated, offenders have challenged it in court, and prosecutors say it's soft on crime.

While many backed the original reform movement, most now concede that it has fallen short of its goals:

Ohio's prisons remain crowded despite sentencing rules that were intended to reserve more room for the most serious offenders. The state's prisons now operate at 127 percent of capacity, with about 45,000 inmates.

Judges now have more discretion than ever in sentencing, a departure from guidelines that once ensured that similar convictions resulted in similar punishments.

Drug offenders and other low-level felons are routinely released early into boot camps or halfway houses, a practice some judges say contradicts "truth in sentencing."

"If I want to give somebody less time, I would give them less time," said Hamilton County Common Pleas Judge Norbert Nadel, a longtime opponent of the law. "I don't need some bureaucrat deciding for the greater good to give them less time."

Nadel and other judges praised the Supreme Court's ruling last Monday, saying it will lead to tougher sentences. Defense lawyers say it made a bad situation worse.

Differences aside, most agree the system remains flawed.

"We've got to get back to fixing sentencing reform," state Rep. Bill Seitz, R-Green Township, said. "But it's not something you start on Monday and finish on Tuesday."

GOAL WAS SIMILAR PUNISHMENTS

Before legislators can fix it, some say they must figure out what went wrong. The reforms approved in 1996 sought to revamp a sentencing structure that had been in place for most of the previous century.

Reform advocates wanted a system that imposed specific sentences that offenders would actually serve, rather than open-ended sentences that ended years early with parole.

They also sought to guide judges so an assault conviction in one county would get a similar punishment in another county.

Critics attacked the changes almost immediately. Prosecutors complained that some crimes carried lesser penalties to make room in prison for more serious offenders. Their solution: Build more prisons.

"Prisons are expensive, but the cost of crime to society is much higher," Hamilton County Prosecutor Joe Deters said. "People who run prisons are social workers.... They think everyone can be rehabilitated."

Defense lawyers didn't care for the new system, either.

"The representation that now we're going to have truth in sentencing suggests we were pulling the wool over people's eyes before," David Bodiker, Ohio's public defender, said. "That was not the case."

Despite criticism, lawmakers approved truth in sentencing. Then, they began tinkering. They created new sentences for crimes such as repeat drunken driving, eroding the sentencing structure.

Prison administrators then expanded early-release programs, such as boot camps and drug treatment programs. The goal was to identify some of the 7,000 non-violent offenders in prison who might respond well to other rehabilitation. With those offenders gone, there would be more room for the most serious criminals.

"These programs work, and they keep the costs down," said Reginald Wilkinson, director of the Ohio Department of Rehabilitation and Correction.

JUDGES IRATE OVER RELEASES

Corrections officials are required to get permission from sentencing judges before sending inmates to the programs, which are known as "Second Chance to Change" programs.

But the notification method confuses and, at times, infuriates judges who see the programs as an end-run around truth in sentencing.

The judges say they often are notified via e-mail or fax and sometimes miss the notices altogether. If they don't respond quickly, prison officials approve an inmate's move to a program.

"We need a better system," Hamilton County Common Pleas Judge Ethna Cooper said. "It concerns me that we don't know what's going on."

Cooper was furious last year when LaShawn Pettus-Brown was moved to a boot camp, even though Cooper had sentenced him to four years in prison just five months earlier. A probation officer told the judge about the move weeks later. Pettus-Brown was convicted of defrauding Cincinnati taxpayers in a failed effort to renovate the Empire Theater in Over-the-Rhine.

Common Pleas Judge Charles Kubicki had a similar experience two years ago after sentencing a convicted drug dealer, Paul Anderson, to four years. Anderson spent a few months in prison before entering a drug program. Kubicki said he never was told of the transfer. "From a judge's perspective, we specify a sentence, and I expect them to serve that time," he said.

Wilkinson said about 300 offenders are in the Second Chance to Change programs at any given time, and all of them have been evaluated to determine whether they qualify as non-violent offenders.

GUIDELINES COULD BE 'ADVISORY'

Most changes to truth in sentencing occurred gradually. But last Monday's ruling struck down a major part of the law.

The guidelines required judges to choose a sentence - between three and 10 years, for example - based on factors such as criminal history or the severity of the offense.

Without the guidelines, judges now can impose any sentence they like without explanation, as long as it's within the range for the crime.

"It seems you should have to explain why you're doing what you're doing," said Bodiker, who said he was concerned that so many judges praised the court's ruling last week. "Too many of the judges just seemed to be exalting in glee."

David Diroll helped draft the reforms 10 years ago as executive director of the Ohio Criminal Sentencing Commission. He said the reforms took a hit from the Supreme Court but are still alive.

He said judges could consider the guidelines as "advisory," in the same way federal judges now use similar guidelines. The federal guidelines also have been declared unconstitutional but remain a strong influence in federal courts.

Diroll said such an approach in Ohio would preserve one of the fundamental goals of sentencing reform: consistency.

"We just have to see whether the judges stay within the basic norms, the constraints, or whether it's open season," Diroll said.

Legislators say they will likely revisit sentencing reform soon. They're just not sure how many changes they'll make.

Wilkinson said he hopes they take their time and get it right.

"Even though it's a monumental task, I think it's time to do another overhaul," he said.