c*ttprrme Tourt OMlin MEMORANDUM TO: Senate President Keith Faber FROM: Chief Justice Maureen O'Connor DATE: October 22, 2013 RE: Proposal for the Dissolution of the Criminal Sentencing Commission and Formation of a Criminal Justice Commission The purpose of this memorandum is to propose the dissolution of the Ohio Criminal Sentencing Commission and to create, in its place, the Ohio Criminal Justice Commission. This memorandum sets out the rationale for that change and proposes what the focus of a new Criminal Justice Commission might be. Background The Criminal Sentencing Commission was created by the General Assembly in 1990 and began meeting in 1991. Chaired by the Chief Justice, the Commission is responsible for conducting a review of Ohio's sentencing statutes and sentencing patterns, and making recommendations regarding necessary statutory changes. Sections 181.21 through 181.26 Ohio Revised Code govern the Sentencing Commission. The duties of the Commission include: studying the existing criminal statutes and law of this state, sentencing patterns throughout the state, and available correctional resources; using the results of its study to develop and recommend to the general assembly a comprehensive criminal sentencing structure; recommending to the General Assembly a comprehensive criminal sentencing structure for the state; assisting in and monitoring the implementation of the comprehensive criminal sentencing structure;
reviewing all bills introduced in the General Assembly that provide for new criminal offenses or that change the penalty for any criminal offense and determining if the bills are consistent with the sentencing structure; developing a comprehensive plan containing recommendations based on the reviews of juvenile sentencing policies and monitor implementation of those recommendations. In 1993, the General Assembly placed the Commission within the structure of the Supreme Court (H.B. 152). In 1994, the General Assembly expanded the Commission to 24 members with an eye toward adding misdemeanor sentencing expertise. In 1996, as part of a reorganization of boards and commissions, the General Assembly formally renamed the Commission the "Sentencing Council," but restored the name "Sentencing Commission" in 2000. Effective in 1997, the Commission's membership was expanded to 31 members to accommodate the General Assembly's desire for the Commission to study juvenile sentencing laws. Ten of the members are judges appointed by the Chief Justice and twelve members are appointed by the Governor. The Commission meets at least quarterly and its members serve without compensation, although they do receive reimbursement for travel expenses. During its existence the Commission has submitted reports on felony, misdemeanor, and traffic offender sentencing to the General Assembly. Its report on felony sentencing laws in 1996 led directly to the contents of S.B. 2 (eff. 7/1196) and the Commission has also been instrumental in overhauls of juvenile and misdemeanor sentencing statutes including S.B. 179 (eff. 01/01/02) and H.B. 490 (eff 01/01/04). In recent years, the General Assembly, during its deliberations on biennial appropriations measures, has either drastically cut or completely de-funded the Sentencing Commission. For example, in 2011, the General Assembly deleted the Sentencing Commission's line item and repealed its enabling statutes. After considerable time and effort was expended by the Chief Justice, the enabling statutes were restored; however, the General Assembly did not restore the Commission's line item in the budget. Instead, the legislature increased the appropriation of the Judiciary/Supreme Court operating budget by the exact amount that had been appropriated to the Commission and designated that amount for the operations of the Criminal Sentencing Commission. Criminal Justice Commission There are many issues that fall under the broad umbrella of criminal justice, all of which are interconnected and affected in some fashion by each other. These issues include sentencing, probation and risk assessment, juvenile justice, data collection and data sharing, domestic violence, specialized dockets, access to legal representation, and traffic. To address all of these issues in a comprehensive manner, the Criminal Sentencing Commission should be restructured and re-titled as the Criminal Justice Commission. It should then focus its efforts on the interrelatedness of these major issues and the cross-functionalities of the various entities that deal with these topics. 2
Sentencing The one issue that the Sentencing Commission has consistently focused on for the past two decades is, as its name implies, the sentencing statutes of Ohio. This issue should remain as one of the primary topics of interest of a Criminal Justice Commission. There have always been and will likely always be efforts to increase penalties or re-design sentencing statues at the state and federal levels. It is important that a multidisciplinary and cross-functional group always be reviewing the latest national developments and trends on matters of sentencing. This was clearly evident during 2009 through 2011 when the Council for State Governments undertook the Justice Reinvestment Project in Ohio that resulted in the passage of H.B, 86. The project was undertaken, with the approval of the Governor, Speaker of the House, Senate President, and Chief Justice, and with funding from the Pew Foundation, to engage in a comprehensive review of Ohio's criminal sentencing statutes. The stated goal of the effort was to reduce prison overcrowding and recidivism. The work on this project on behalf of the judicial branch was completed largely on an ad hoc basis with a Supreme Court justice and judicial organization leaders making many representations on behalf of the judiciary and judicial branch with little coordination of efforts or communication with the Criminal Sentencing Commission, the chief justice, justices, or policy staff at the Supreme Court on the major provisions of the bill. An active Criminal Justice Commission, with several standing or permanent subcommittees that deal with ongoing and recurring issues would have allowed for a more wellinformed review of these issues. Should a Criminal Justice Commission be created it should have a permanent subcommittee dealing with sentencing issues. Probation and Risk Assessment As part of the Justice Reinvestment Project it was determined that an Ohio Risk Assessment Tool should be developed and that probation officer training standards should be enacted by the Department of Rehabilitation and Correction (DRC) in conjunction with the Supreme Court. Ultimately, H.B. 337 was enacted to set these standards. However, by not having a dedicated criminal justice expert on staff, or an advisory body in place that deals with risk assessment and probation issues, the Supreme Court's efforts largely fell to an education program manager in the Ohio Judicial College. The manager is not an attorney, and although he helps coordinate education training programs for probation officers, he is not knowledgeable enough about these matters to be a competent representative to work with DRC on the development of the standards. Because there is not a larger Criminal Justice Commission, the development of the larger bill and the detail work that followed showed that the Court and its staff were very much out of the loop on the topic even though the Court was ultimately charged with certain responsibilities under the newly enacted statutes. As with many criminal justice issues, because the Court does not have a fully functioning Criminal Justice Commission or staff dedicated to a wide range of criminal justice issues, the results were very much personality driven and not evidence based or organizationally focused. 3
Having a permanent subcommittee on Probation and Risk Assessment as part of a Criminal Justice Commission would help to advance the development of this issue in a logical and orderly fashion. Juvenile Justice One of the long ignored areas of the justice system involves the strategies that are employed to combat juvenile delinquency and recidivism. The Supreme Court has an Advisory Committee on Children, Families and the Courts, but its efforts are focused on topics such as abuse, neglect, dependency, foster care, probate, and domestic relations law. There has been some focus by the Criminal Sentencing Commission on the activity of juveniles that is criminal in nature, but by and large it has not been its principal focus. As a result, other state entities have started to review these issues, such as the Department of Youth Services, which is working on the topic of the Juvenile Detention Alternatives Initiative, as funded through the Annie E. Casey Foundation, and the topic of Mental Illness and Behavioral Disorders which is being addressed through an Interagency Task Force on Mental Health and Juvenile Justice, which was legislatively established in H.B. 86. Having a permanent subcommittee on Juvenile Justice as part of the larger Criminal Justice Commission would allow the Supreme Court to be the convening entity and host a continuing forum on the topic, without a particular vested interest in the topic unlike some of the other entities that are now leading reform efforts from their own particular point of view. This will help establish the Supreme Court as a third party neutral that is first and foremost interested in working to facilitate a reasoned and thoughtful approach to this issue. Data Collection and Data Sharing The collection and sharing of criminal justice data has long been and continues to be a vexing issue for those who work within and those who interact with the judicial branch of Ohio government. With a highly decentralized system of governance of the judicial branch and the wide disparity in case management systems in the courts, collecting appropriate data and sharing it with justice system partners is a continuing challenge. This first became most apparent with the passage of S.B. 2 in the mid-i 990s. The uncodified portion of the bill asked that the Supreme Court devise a system to collect racial and ethnic date on criminal defendants appearing in Ohio courts. Now, nearly two decades later, this system is not in place with no clear plan as to how it will come to be as the Court has not been able to draw together the fiscal, human, or technological resources to meet this request. Another area where there have been some efforts to collect data with little success involves the National Instant Criminal Background Check System (NICS). NICS is operated through the U.S. Department of Justice's Office of Criminal Justice Programs. It requires cooperation between the courts of a state and its executive branch offices that deal with law enforcement matters. The NICS system in Ohio has largely operated through the efforts of the Office of Criminal Justice Programs in the Department of Public Safety and the Supreme Court. Another similar national program that the Supreme Court has been involved in is the National 4
Criminal History Improvement Program (NCHIP). In addition, the Ohio Criminal Justice Information Services (OCJIS) has operated on and off for the last several years and attempted to address issues involving criminal data collection, as have Criminal Justice Coordinating Councils in place throughout the state. The one area of success for the Supreme Court involves the Ohio Courts Network (OCN). While it has realized some success in collecting and sharing data on individuals, it is still a long way from an integrated justice information sharing system that meets the goals of S.B. 2 or NICS. Further, its work has been accomplished in a relative vacuum within the Office of Information Technology and the Commission on Technology and the Courts at the Supreme Court. Having a permanent subcommittee on Data Collection and Sharing to coordinate the work of a Criminal Justice Commission with the Office of Information Technology and the Commission on Technology and the Courts would help to start bridging the information gap between justice system partners. Domestic Violence The issue of domestic violence crosses boundaries between criminal law, civil law, and juvenile law. Currently, the issue is managed at the Court through the Domestic Violence Program and the Advisory Committee on Domestic Violence. However, the bulk of the protection orders in the state are criminal in nature. Should a Criminal Justice Commission be created, the issue of domestic violence should be major focus of its work, and staff that has previously been assigned to address the issue should be reassigned to a newly created Criminal Justice Section to work exclusively on this topic. Specialized Dockets Specialized dockets are playing an ever increasing role regarding criminal cases in Ohio's trial courts. Drug courts, mental health courts, veterans' courts, and other programs are what some have described as intensive probation. They deal with individuals who are charged with a crime and are working their way through the criminal justice system. Without a strong criminal justice oriented group at the Supreme Court, either through a Criminal Justice Commission or staff dedicated to criminal justice issues, staff members in the Specialized Dockets Section will be left to deal with questions that should more properly be answered by someone with a strong criminal justice background, which they do not have. Should a Criminal Justice Commission be created, with appropriate staff in a Criminal Justice Section to further its activities, it would be expected to coordinate its work with the Specialized Dockets Section so as to develop appropriate responses to provide expert advice on the development of appropriate policies and rules in this regard. As it stands now, such work is not being coordinated within the branch, but is taking place through such bodies as the Attorney General's Task Force on Criminal Justice and Mental Illness. 5
While a standing committee on specialized dockets might not be necessary, having the necessary staff expertise and commission membership available to provide meaningful feedback and guidance to the Specialized Dockets Section would be important. Access to Legal Representation One topic of continuing conversation between the Chief Justice, the state public defender, and the director of the Ohio Legal Assistance Foundation concerns the issue of access to justice. As part of that conversation, the Chief Justice has suggested that the she might like to see the Supreme Court establish an Access to Justice Commission as established by other states. To that end, the Court has sought and obtained a grant from the American Bar Association in the amount of $20,000 to establish such a commission. However, the response of others appears to be that they are lukewarm to the idea of the Court creating such a commission. In conversations with the state public defender and the director of the Ohio Legal Assistance Foundation, they have both endorsed the idea that a standing committee on access to legal representation as part of a reformed Criminal Justice Committee would go a long way toward addressing this issue within the context of other criminal justice issues and defuse any concerns that might exist as it relates to establishing a standalone Access to Justice Commission. To this end, the report of the Supreme Court's Task Force on Pro Se and Indigent Litigants, issued in 2005, would be a valuable tool for the work of the subcommittee. Traffic Traffic is another topic that the Court will be asked to deal with from time to time and for which it has no clearly identified staff or consulting body to it can refer the matter. One issue involving this topic concerns the timely forwarding of traffic dispositional data from municipal courts to the state bureau of motor vehicles for national reporting. Along these lines, the National Center for State Courts (NCSC) has a Commercial Driving Resource Center which it has established in partnership with the Federal Motor Carrier Safety Administration. There is a continuing national concern regarding initiatives on how states can improve the reporting of dispositional data regarding traffic cases involving individuals who possess a commercial drivers licenses. While traffic cases are not a major topic, the fact is that the Court needs someone on staff to be able to discuss the topic with some level of knowledge and expertise as questions arise, and this person would best be a staff member in a future Criminal Justice Section and who works with a Criminal Justice Commission to deal with these issues. Commission Structure The Criminal Sentencing Commission consists of 31 members. The Chief Justice is the Chair of the Commission, and an additional ten members are appointed by the Chief Justice. Those appointees shall include one court of appeals judge, three common pleas judges, three juvenile court judges, and three municipal or county court judges. Twelve members shall also be appointed by the Governor including one sheriff, two county prosecuting attorneys, two peace 6
officers, a crime victim, one criminal defense attorney, one member of the Ohio State Bar Association, one attorney whose practice primarily involves the representation of juveniles of alleged delinquent juveniles, one city prosecuting attorney, a county commissioner, and one mayor, city manager or member of a city council. In addition, the superintendent of the highway patrol, the state public defender, the director of youth services, and the director of rehabilitation and correction serve on the commission by virtue of their positions. Finally, two members of the Senate and two members of the House serve on the commission, with the majority party and minority party allowed one appointment from each chamber. In addition to the commission, there is a Criminal Sentencing Advisory Committee that consists of the chairperson of the parole board, the director of the office of the correctional institution inspection committee, a juvenile detention facility operator, a provider of juvenile probation or community control services, a provider of juvenile parole or aftercare services, a superintendent of a state institution operated by the department of youth services, a community based juvenile services provider, a person who is a member of a youth advocacy organization, a victim of juvenile delinquency, and any other person the chairperson of the commission shall appoint upon the advice of the commission. A Criminal Justice Commission should consist of most if not all of these members, and have set standing committees as noted above. Staffing Fifteen years ago the Criminal Sentencing Commission consisted of four staff members including a director, two staff researchers, and an administrative assistant. Now, largely though budget cuts, the commission consists of just a part time director, a part time law clerk, and an administrative assistant. If the Court approves a restructured group to be known as a Criminal Justice Commission, it will need to bring on additional staff to meet the important work of such a commission as noted above and to take on additional tasks that are needed to ensure the success of such a commission. This group should be known as a Criminal Justice Section. It should exist within either the Office of Court Services in the Judicial Services Division or as a policy setting group within the Office of the Administrative Director, such as the Commission on the Rules of Practice and Procedure in Ohio Courts. Building Relationships and Coordinating Work with Others One area that needs great attention is building relationships with and coordinating the work of the commission and Supreme Court staff with justice system partners. There are many state and federal offices and entities that work on criminal justice issues with whom the Supreme Court is often asked to participate on a specific project or to coordinate an activity that assists in the development of criminal law. These offices and entities include the Office of the Attorney General, the Department of Rehabilitation and Corrections, the Department of Youth Services, and the Office of Criminal Justice Services at the state level and the U.S. Department of Justice, the Federal Bureau of Investigation, and the Bureau of Justice Assistance at the federal level. 7
It also includes working with other entities such as the Ohio Justice Alliance for Community Corrections (OJACC). Other groups with whom staff would need to build relationships to ensure a full range of cooperation include victims' advocacy groups, judges associations, prosecutors, and criminal defense lawyers. Finally, it includes working with groups internal to the Supreme Court to suggest amendments to bodies of rules, such as working with the Commission on the Rules of Practice and Procedure to suggest amendments to the Ohio Rules of Criminal Procedure. Miscellaneous Items There are also topics on which there are no in-house experts or even staff assigned to have some working knowledge about a larger issue affecting criminal justice. For instance, there is an Interstate Compact on Adult Offender Supervision and a separate Interstate Compact for Juveniles. Both of these compacts look for the assistance of judges and the judicial system for states to meet their obligations under the law. Having an in-house staff person or persons who are knowledgeable about these compacts will be helpful for the Court and the judicial branch in responding to issues or questions that come up regarding these compacts. Also, from time to time, miscellaneous issues crop up that require the action of a body (typically within the judicial branch), in response to an inquiry or circumstance involving criminal justice. For instance, in 2006 there were published newspaper articles which suggested that trial courts were not adequately addressing a Revised Code requirement that judges made sure that criminal defendants appearing in the judge's court had been properly fingerprinted by the county sheriff or chief of police who were bringing the defendants to court. This matter was handled on an ad hoc basis by the Office of the Administrative Director because there was no permanent staff that deals with criminal justice issues at the Court. If a Criminal Justice Section had existed at the time, it would have been the logical group to assign the project to. Further, within the last year the General Assembly enacted S.B. 337 that deals with the issue of Certificates of Qualification for Employment. Under the bill, former prisoners may petition the courts to receive a certificate stating the prisoner is qualified to be employed as part of their release from prison. As this law developed the Supreme Court was largely a bystander as it does not have any criminal justice experts on staff or a criminal justice committee on which we could turn to in response to the proposed legislation. While the Ohio Judicial Conference attempted to fill the void and largely served to respond on behalf of the judicial branch in an ad hoc fashion, an active Criminal Justice Commission, with knowledgeable staff on board, would have been able to timely provide guidance on this matter and propose an appropriate formal Rule of Superintendence to give direction to local courts and provide for its uniform statewide application. Conclusion The General Assembly should work to remake the Criminal Sentencing Commission into the Criminal Justice Commission and for it to be part of the structure of the Supreme Court's operation. 8