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Judicial release

Here's an easy way to win a bar bet:  ask somebody, "If you're sentenced to five years in prison, when can you file for judicial release?"

Okay, it's not likely to incur as much interest as something like, "How many intentional walks did Roger Maris get the year he hit 61 home runs?"*  But it's the same type of trick question, because take a look at what the statute says.  In a nutshell:

  • If the sentence is less than two years, you can apply after thirty days
  • If the sentence is at least two years but less than than five years, you can apply after one hundred eighty days
  • If the sentence is five years or more but not more than ten, you can apply after five years

So what's the answer to the question of when you can apply if you've been sentenced to exactly five years?  The answer is:  you can't.  You're going to become eligible for judicial release the day your prison sentence expires.

The Ohio Supreme Court took a look at this back in 2004 in State v. Peoples, and decided it was a violation of equal protection.  That was a pretty tricky process.  Deciding that, for purposes of the case,  the statute classified offenders into two groups -- those serving exactly five years and those serving more than five -- was the easy part.  But since it didn't involve a suspect classification like race, the "rational basis" test applied:  the statute had to be upheld as long as the court could discern any rational explanation for why the legislature had made the distinction.  And, for the life of the court, they couldn't.  Besides, it really wasn't that big a deal.  Peoples had been sentenced in 1998, but the legislature had changed the law in 2000 to allow those sentenced to exactly five years to petition for judicial release after four.  So that took care of that.

And then, in 2009, the legislature amended the statute again, to what it was before 2000:  a person sentenced to five years or more had to wait five years before applying for judicial release, which means that if someone was sentenced to exactly five years, they couldn't apply.  In short, the legislature amended the statute so that it provided exactly what the court in Peoples had held unconstitutional.

The reasons for this are difficult to fathom.  This wasn't simply a legislative oversight of dropping a comma or two; without going into detail, suffice it to say that this was an unmistakable attempt to make the statute into exactly what Peoples had voided.

This is where the fun starts.  Several questions:

First, what's the effect of Peoples on the new statute?  It's possible that the re-enactment of the statute would prompt the Supreme Court to take a second look at it.   What would happen then is an open question:  Peoples was a 4-3 decision, and breaks down to 2-2 among the members who are still on the court.  Still, it's not like the court would be looking at this for the first time, as it was in Peoples; a different result would require overruling that decision, and that raises some stare decisis problems.  At any rate, this is sort of a reverse Ice-Foster argument; until Peoples is overruled, lower courts are bound to follow it.

Second, assuming Peoples goes back into effect, what's the period a person sentenced to five years has to wait before he can apply for judicial release?  Peoples had filed his application after 180 days, and the trial court had granted it, so one might presume that, if the Supreme Court tosses the new amendment, you'd again have a 180-day period.  I don't think so; I think a legitimate argument could be advanced that we then revert back to the statute which was in effect before the amendment, which has a 4-year waiting period.

But that brings up another question.  The new statute went into effect on April 7, 2009.  What happens if your client was sentenced before that?  Forgetting Peoples for a minute, can he claim that the amendment doesn't apply to him, because he was sentenced under the old statute?

The argument here is an ex post facto one:  when you're sentenced to prison, you have two years before you can file for judicial release.  After you're sentenced, the legislature changes it so that you have to wait five years.  Doesn't that "increase the punishment" sufficient to trigger the ex post facto clause?

There's some good early case law on that; in 1981 in Weaver v. Graham the Supreme Court held that changes in parole eligibility could be a violation.  But nine years later, in Collins v. Youngblood, the Court backed off that, seemingly limiting ex post facto analysis in this context to not whether the "legislative change produces some ambiguous 'disadvantage,' but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." 

The bottom line is that anybody sentenced to exactly five years has a good argument that they're eligible for judicial release after four.  The question might not require much further litigation; I've heard that the General Assembly is working to correct the mistake it made in its last amendment to the statute.  Then again, I can think of few more despairing passages than "the Ohio legislature is working to fix this."

* Answer:  None; he was batting third, and Mickey Mantle hit fourth.

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