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Ohio Courts Consider Uniform Sentencing to Root Out Bias

The Ohio Criminal Sentencing Commission would enable common-pleas judges to electronically determine a felony sentencing, aiming to reduce bias and errors. But some judges worry the system will diminish judicial independence.

(TNS) — Bringing Ohio's judicial system into the digital age could help root out bias and errors in felony sentencing, but it is also creating some angst among felony-sentencing judges who fear the loss of judicial independence.

A database for all felony courts in Ohio is a goal Chief Justice Maureen O'Connor set several years ago. Justice O'Connor said in a public forum last year that the database has been a failed goal for more than 20 years and called the lack of judicial and law enforcement data "an embarrassment."

"I've got 2 1/2 years left in my term and this is my priority," she said at that time.

A proposal introduced to courtrooms on a pilot basis by the Ohio Criminal Sentencing Commission would create a uniform sentencing protocol — essentially an online form for common-pleas judges to complete as they impose sentence on each convicted defendant. The next logical step is a database that would enable policymakers to better understand how many people are being sentenced to prison, how many are being released on community control or probation, and how that choice was made.

It could also make it possible for all of Ohio's judges to be ranked and categorized as to their sentencing's leniency or harshness.

For the Ohio Criminal Sentencing Commission, the University of Cincinnati developed a software program, complete with more than 100 pages of instruction, for judges to use as their template when they impose sentence.

A handful of judges, including Judge Jeffrey Reed of the Allen County Court of Common Pleas in Lima, have agreed to participate in the pilot.

A trio of Ohio judges, including appeals Judge Gene Zmuda of Lucas County, recently co-wrote an article in a national legal publication urging adoption of a database of all felony sentencing in Ohio. Judge Zmuda chaired the Ohio Criminal Sentencing Commission committee that created the standardized sentencing entry and now chairs the Ohio Sentencing Data Platform Governance Board.

The article in the Federal Sentencing Reporter, published by the University of California Press, makes the case that a standardized sentencing format and a database would reduce errors that cause cases to be overturned on appeal.

Judge Zmuda, Ohio Supreme Court Justice Michael Donnelly, and Pierre Bergeron, a First District Court of Appeals judge, offer a hypothetical case in which a judge gives a six-year sentence for a robbery that usually garners a four-year sentence because, in this case, there are "a variety of aggravating factors."

"Doesn't the whole system benefit from such transparency? The defendant may not like the sentence he receives, but at least a record is made establishing the basis for it. Additionally, future parties looking at that sentence can set it in the proper context when they advocate for a six-year sentence or a lower range," the judges wrote.

They acknowledge that judges are people who have biases.

"Judges aren't robots [and] we must acknowledge it that all judges, like all people, suffer from certain biases," the judicial authors wrote.

"Let's say that, before looking at the database, the sentencing judge believes the appropriate sentence for the defendant is eight years. But after considering the data, perhaps the judge realizes that the eight-year instinct may have been a product of implicit bias, or of other factors the court should not consider," they wrote.

Scott Anderson, a Capital University law professor, responded in the same publication there is resistance to a statewide database of felony sentencing.

"When sentencing, judges want to maintain discretion, value proportionality, and honor local norms. After sentencing, judges don't want to be pigeonholed or scapegoated. Any serious attempt to institute a statewide sentencing database must take into account these legitimate concerns. Ignoring them invites another quarter-century of justice delayed," Mr. Anderson said.

He noted that the association of state judges, Ohio Judicial Council, has opposed mandatory sentencing laws, public reporting of local court expenditures, the use of "risk assessment tools" in sentencing decisions, and offender registries.

"The feeling is that any further encroachment into judicial discretion should be repelled as both superfluous and antidemocratic," Mr. Anderson said.

In an interview with The Blade, Judge Zmuda said a uniform sentencing entry will reduce what he calls "unforced errors" — cases that are reversed and sent back to the lower courts because a judge did not conform his or her sentence to the current law.

An example is the Sandusky County case of Houston Stubbs, who in 2018 pleaded guilty to multiple counts of trafficking cocaine and was given consecutive sentences that added up to 48 months.

The appeals court agreed with Stubbs' attorney that then-Judge John Dewey of Sandusky County Common Pleas Court failed to fully explain at sentencing why the prison terms were made consecutive and failed to note those reasons in the record.

Stubbs was brought back from the Mansfield Correctional Institution on Sept. 20, 2019, for resentencing. Judge Dewey's successor, Judge Jon Ickes, imposed the same 48 months, after carefully explaining the reasons.

Currently, anyone wanting to compare sentencing for similar convictions between judges, whether within a county or across county lines, is practically stymied because the information is hard to extract. It exists in text records that can be found online, but not in a searchable or consistent format.

"There is no data, no assembly of data, that can look at that," Judge Zmuda said. "That's what the data platform is attempting to do."

Allen County's Judge Reed said a uniform sentencing entry will make judges' reasoning clear and it will eliminate confusion for defendants, the Ohio Department of Rehabilitation and Correction, and the general public.

If there is a racial disparity in sentencing in Ohio, the data will tell the tale, Judge Reed said.

"I can't say for sure there aren't those prejudices. I think we should not be afraid of data. It's either going to prove it or it's going to disprove it — either way we win," Judge Reed said.

Sara Andrews, the Ohio Criminal Sentencing Commission's executive director, said the pilot effort is attracting interest around the state.

"We're not changing or prescribing their decisions. We're just giving them an electronic way to document what they're doing. The sentencing structure has become so complex that they're interested in having better information at the time they sentence so they don't make mistakes," Ms. Andrews said.

(c)2021 The Blade (Toledo, Ohio) Distributed by Tribune Content Agency, LLC.
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