Testimony of JOHN W. GERHARDT
Chief Advocate, Liberty Rights Advocates before the
SENATE FINANCE & FINANCIAL INSTITUTIONS COMMITTEE, 128th General Assembly on
The Dept of Rehabilitation & Correction Operating Budget
Presented May 20, 2009
Last month the director of the Dept of Rehabilitation & Correction (DRC), Terry Collins, appeared before this committee to ask for even more increased funding for Ohio’s largest department. Collins complained about prison overcrowding and increasing costs for Ohio’s prison system, and asked for sentencing reform to alleviate the situation. Not mentioned is that Ohio already had sentencing reform when the General Assembly enacted the current criminal sentencing code, referred to as SB2, into law July 1, 1996—13 years ago.
A comparison of the two codes, which now operate as a dual disparate sentencing system, and how the two codes have been applied—or misapplied—may shed light on one major cause for overcrowding and escalating costs of Ohio’s prisons. RC § 2929.11((B)(1) of the former code set the penalty for a first degree felony as an indefinite sentence of a minimum of 5, 6, 7, 8, 9 of 10 years and a maximum of 25 years. RC § 2929.14(A)(1) of the current code prescribes a penalty for a first degree felony as a total definite sentence of 3, 4, 5, 6, 7, 8, 9 or 10 years. RC § 2929.11(B)(2)(a) of the pre-SB2 law imposes for a second degree felony an indefinite sentence of a minimum of 3, 4, 5, 6, 7 or 8 years and a maximum of 15 years. RC § 2929.14(A)(2) of the current code authorizes a penalty for a second degree felony of a total definite sentence of 2, 3, 4, 5, 6, 7 or 8 years. RC § 2929.11(B)(3)(a) of the former code sets the penalty for a third degree felony as an indefinite sentence of a minimum of 2, 3, 4 or 5 years and a maximum of 10 years. SB2’s RC § 2929.14(3) has the penalty for a third degree felony as a total definite sentence of 1, 2, 3, 4 or 5 years. SB2 converted the minimums of the indefinite sentences of the former code into the total definite sentences of current law.
When those sentenced under SB2 have served the time they were expected to at the time of sentencing, they are released, the parole board has no authority over them. When those sentenced under the pre-1996 code served the time they were expected to serve, instead of being released, they had to appear before the parole board. Perhaps some realized that when the last “old law” prisoner is released, the Ohio Parole Board will have little to do and no real reason to continue to exist, because with the enactment of SB2 parole release rates plummeted. It became common for the Parole Board to make those sentenced under the former code to serve two, three, four or some times more time in prison than “new law” prisoners are being made to serve for the exact same offenses. For nearly a decade and a half DRC spokesmen and spinmeisters have done a good job of obfuscating, confusing and evading the issue, but after 13 years the rhetoric and rationalizations resorted to are shopworn and increasingly invalid and irrational.
RC §2929.14(C.) of the current code stipulates that a sentencing court “may impose the longest term authorized for the offense…only upon offenders who commit the worst forms of the offense.” It is extremely rare for someone to be sentenced under the current code to a term of imprisonment longer than the lower terms listed. It is common for “old law” prisoners to be made by the parole board to serve way more than the most to which they could be sentenced under the current code—in many cases even more than they could be sentenced to for higher degree or more serious felonies. For example, are the average or less serious forms of a third degree felony committed prior to 1996 for which frequently third degree felons are made to serve as much as 10 years really some how more dangerous and worst than the worst form of a first degree felony committed after 1996, the most to which one may be sentenced is 10 years? Are the average or less serious forms of second degree felonies committed before 1996 and for which many “old law” prisoners are made to serve as much as 15 years, really more dangerous, more serious than the worst first degree felonies committed after 1996 and again the most to which one can be sentenced is 10 years? For that matter, were the statutory offenses committed before July, 1996 really worse and more dangerous than the same statutory felonies committed after 1996 and which justify allowing an administrative agency to keep them in prison for a far greater amount of time?
What impact is there upon the state budget crisis of allowing the injustices of a dysfunctional dual disparate sentencing system to continue to operate? According to a data sheet obtained from the office of the DRC legislative liaison, there are 6,056 pre-SB2 or “old law” prisoners (12% of the state prison population) still confined in Ohio’s prisons. According to DRC’s website, it costs an average of $67.77 a day, or $24,736.05 year, to keep someone in prison. Multiply that figure by the number of “old law” prisoners admitted to still be in prison, it is revealed that it costs Ohio taxpayers $149,801,518.20 a year to keep pre-SB2 prisoners in prison. This does not include the cost of maintaining the Ohio Parole Board which without “old law” prisoners wouldn’t have a valid reason to continue to exist, nor medical costs for the aging prisoners sentenced before 1996. Randomly checking the lists of prisons on the DRC site, one notices that the average prison in Ohio holds around 2,000 prisoners, some are as low as holding 1300 or so, others over 2700. Without “old law” prisoners, the state could close any where from 2-4 prisons, or alternatively, provide more than the number of beds Collins claims he would have to add to the state system.
Terry Collins, the DRC and its subsidiary, the Ohio Parole Board, have the authority to release “old law” prisoners without any more sentencing reform. The time is long past due to release these old or aging prisoners who are in prison only for one reason–the Parole Board refuses to release them.