If you are a first-time, low level offender, a new law could help you avoid prison time even when the judge would like nothing more than to lock you up. HB 86 has many judges and prosecutors upset because it takes away sentencing discretion from the judge and requires him to in essence ask for permission before incarcerating certain offenders.
The law went into effect at the first of this year and cases falling under it are beginning to cycle through the courts. In an effort to reduce prison populations, the law requires that a judge run his sentence by the Department of Rehabilitation and Correction before sending any first-time, non-violent felony offender to prison.
Needless to say, judges are not happy. “I’ve had offenders who brazenly will come into the courtroom and say, ‘You judge, cannot send me to prison,’” says Fairfield County Common Pleas Judge Richard Berens.
The law was designed to promote community corrections whenever possible, and non-violent, first-time felony offenders logically seem like good candidates for community corrections.
According to the Marion Star, the law doesn’t say that the Department of Rehabilitation and Correction will rule counter to the judge. More than likely, they also make an educated decision on the sentence, just like the judge. So, why isn’t this extra safeguard a positive thing?
One judge, Hancock County Common Pleas Judge Reginald Routson, believes the law violates the separation of powers clause of the constitution, since it requires an executive entity to approve a judicial ruling.
Many judges, however, seem to suggest that their recommendations won’t be taken into consideration at all. They argue that there are first-time, non-violent, felony offenders that require prison time. And they’re right, there likely are. But the law doesn’t say no such offenders will be sent to prison, merely that the Department of Corrections will have to approve the sentence.
Understandably, prosecutors are siding with judges on the issue.
Judges don’t want their power limited, for any reason. The Ohio Judicial Conference is said to generally oppose “any legislative effort to limit a judge’s power – whether it be by imposing mandatory minimum sentences, or forbidding a sentence.”
There’s a good chance that this law won’t be a permanent fixture. However, in the meantime, it could result in some offenders being sentenced to probation rather than prison time.
If you are accused of a criminal offense and are curious about the likelihood you’ll serve time in prison, contact us today to discuss the details of your case and how we might be able to help.