Transcript (3-C) Ohio Criminal Recodification Committee Phil Nunes

Ohio Criminal
Recodification Committee
October 13, 2016
Phillip Nunes
Chief Operating Officer / Alvis Inc.
Member of Recodification Committee
Ohio Criminal Justice Recodification
Committee:

Amended Ohio House Bill 483 created the ad hoc
Criminal Justice Recodification Committee with an
enormous charge.
Play John Oliver Prison
Stop at 3:24
John Oliver
“The Committee will study Ohio's criminal statutes,
with the goal of enhancing public safety and the
administration of criminal justice by eliminating
duplication in those statues, aligning the statutes
with the purpose of defining a culpable mental
state (mens rea), for all crimes, removing or
revising crimes for which no culpable state is
provided, and taking other appropriate measures.
By January 1, 2016, the committee must
recommend to the General Assembly a
comprehensive plan for revising Ohio's Criminal
Code. Upon submitting its recommendations, the
committee will cease to exist.”
NOTE: Recent amendments have extended the
committee's work until mid November 2016.
Recodification Committee
Creating the Framework for Reform:
To attain the goals to simplify, clarify, provide for
proportionality and fairness, to protect and serve
all of the people, the following framework suggests
the methodology for comprehensive review to
guide proposals for the revised comprehensive plan
for the 2016 Ohio Criminal Code.
The Criminal Justice system gets its authority from
the mandate of the People. Only through
maintaining a system that renders fair and
equitable judgment will it maintain that mandate.
A criminal code that is clear and understandable,
with penalties that are just and proportional to the
criminal acts of the accused, forms the framework
of that system.
Creating the Framework for Reform:
Simplify
A particular level of offense should have one
range
of punishments, not contingent upon any facts to
be found by the fact finder or to be determined by
the court.
Avoid confusion (E.g.-- an F-3 should be one
range of punishments, not two different
ranges of punishments.)
Avoid Apprendi/Foster types of issues.
All offenses should clearly be placed into a
particular level of offense, without “unique” prison
or jail terms, or fines.
Avoid confusion (E.g.-- One F-4 should have
the same range of prison terms as any other
F-4, with the same range of fines.)
Clarify
All offenses should clearly specify the culpable
mens rea the state must prove, or specify strict
liability if that is the appropriate situation.
Avoid confusion by grand jurors, jurors,
courts, counsel and defendants
Provide due process through clear notice
Offenses that use strict liability, or ones where
the
culpable mental states are negligence or
recklessness, should be precluded from being
reduced by means of an “attempt”.
To “attempt” to do an act is to knowingly or
intentionally try to do it, so no one can
knowingly or intentionally try to commit an
offense negligently or recklessly.
Clarify (Continued)
Culpable mental states should be clearly defined.
Sometimes, some level of vagueness allows
for an appropriate amount of flexibility to
be fair. (E.g.--“Negligence” is intentionally
vague to allow jurors some flexibility to
prevent a Draconian effect of statutes in
cases such as negligent homicides and
assaults.)
Recodification Committee
2
Allied offenses of similar import (in Chapter 2941)
should be clarified to make it clear whether
statutes are overlapping and creating double
jeopardy issues for punishing the same conduct
twice, or redrafted to clarify what may and may
not be punished separately. Along those same
lines....
Avoiding duplication, overlapping or inconsistent
sections....
Wordy text sometimes duplicates other sections,
or even within the same section, which is
unnecessary and can create confusion.
Which is more specific? Which was enacted later?
Considering rules of construction, we must provide
clarity and avoid appellate issues.
Overly verbose text could be avoided through
clarifying rules of construction, so that repeated
words like “of the Revised Code” or other terms
could be assumed. Clarification need not include
obvious definitions.
When reviewing a section, ask whether it should
be merged with other sections, or whether it
should be broken down into separate sections, to
avoid duplication, confusion or inconsistencies.
(E.g.--RC 2905.03(A)&(B), both M-3’s.)
Criminalization....
Should the conduct be unlawful?
Should it be a felony on the first
offense, or ever?
Should there be an offense created
to cover conduct not adequately
covered because of new threats,
new technology, current social or
criminal trends?
Proportionality and Fairness....
Taking a look at the big picture...
Should some offenses be felonies if they are not
eligible for prison? Why label an offender with “felon”
status for something not prison eligible?
Should some drug possession offenders be
automatically eligible for diversion for first time
offenders?
Should some drug offenses that are lower-level felonies
be automatically put into diversion?
Should initial relapse be automatically eligible for
treatment in lieu of conviction or other diversion?
o (In these drug cases, where do we draw the line?)
Are some offenses for the most heinous conduct not
given adequate prison time?
Are some consecutive sentence options too broad?
Painting with broad strokes does not always provide
adequate protection of our citizens, while painting with
extremely fine strokes becomes increasingly more
confusing, so the review of these items takes patience
and adequate inquiry.
DRAFTING GUIDELINES
Each workgroup must evaluate the
sections in their Chapters and make its
recommendations based upon the best
information available to it. Each must
have the freedom to draft in variance with
the general guidelines in order to achieve
a fair result without being “bound” by any
“mandatory” rules. The following drafting
guidelines should be applied consistent
with the goals:
DO NO HARM....
DRAFTING GUIDELINES CONTINUED…..
PLACE ALL OFFENSES IN APPROPRIATE CHAPTERS.
[E.g.--2903.11(B) should be in Chapter 2907
perhaps; Chapter 2950 should be in Chapter 2907
perhaps; Chapter 2971 should be in Chapters 2907
and 2929, perhaps; specifications in 2941.14 et
seq. should be attached as elements to the crimes
that they apply to, perhaps; etc., etc.]
ALL OFFENSES TO FIT WITHIN STANDARDIZED
LEVELS OF OFFENSES.
[Standardized punishments. I.e.--No specialized
fines or unclassified sections.]
NO DUPLICATION OF CRIMES IN TWO DIFFERENT
STATUTES--ELIMINATE DUPLICATION. NO
INCONSISTENT SECTIONS—HARMONIZE.
MAKE PROPORTIONAL WITHIN THE CHAPTER, AND IN
COMPARISON TO OTHER CHAPTERS
DO NOT OVER-CRIMINALIZE OR OVER-PENALIZE
No felonies unless that conduct warrants prison time
over one year
Distinguish conduct that is less serious from more
serious in definitions
No enhancement to felonies what is misdemeanor
conduct
Enhancement to felonies only after ample opportunity
to reform
Check misdemeanors for proportionality and fairness
JUDICIAL DISCRETION
Carefully assess whether mandatory minimums are
desirable or appropriate in a particular statute (i.e., try
to avoid mandatory minimums where possible.)
Give discretion to judges within sentencing ranges.
Assess whether consecutive or concurrent sentencing is
appropriate.
Avoid Apprendi, Booker, Blakely, Foster problems.
Requisite consideration of all appropriate sentencing
factors.
Consistency....
By specifically focusing upon the
measuring tools we use to evaluate
the criminal code sections, the
methods we use to simplify and
clarify those sections will also
achieve a level of consistency
lacking when legislation is passed in
a piecemeal fashion over time.
“
Next: Legislative process
Legislative Services Commission has been writing each chapter as we
went along in the process.
”
Drug Chapter has been voted out and will likely go through its own legislative process
(possibly in lame duck)
Remaining ORC Recodification Changes will be introduced as a comprehensive
legislative Bill in the House / Senate
Samples of
recommendations:
Drug Chapter
Sexual Offenses Chapter
Robbery/Burglary / Safe Cracking Chapter
Drug Chapter Recommendations
attempts to separate dealers from users, provides for pathways to treatment for low-level
offenders and allows certain offenders to more easily seal their records.
Judges would have maximum judicial discretion in sentencing those distributors who
possess large enough quantities to sell to a few people, but not enough to be large-scale
traffickers, while most low-level offenders would be automatically eligible for treatment.
The proposal would also lessen penalties for marijuana possession, making under 200
grams a minor misdemeanor, 200 to 400 grams a 4th degree misdemeanor and 400 to 1,000
grams a 5th degree felony
Those who are charged with drug crimes and receive sentences of one year or less would
no longer be eligible to serve in a Department of Rehabilitation and Correction facility,
which members hope will reduce overcrowding.
NOTE: About 5,000 people enter the prison system each year with their highest charge
being a 5th degree felony drug violation for which they are sentenced to one year or less.
Drug Chapter Recommendations
Continued:
Those found guilty of drug possession, marijuana possession or petty trafficking would be
eligible to apply for automatic sealing of their records one year after the discharge of the
offense as long they have not previously been found guilty of more than two misdemeanor
offenses, one felony offense or one felony and one misdemeanor offense.
Under that proposed section of law, those charged with drug possession, marijuana
possession or petty trafficking would be eligible for intense supervision as long as they
have no previous felonies for sexually oriented or violent offenses, did not possess a
firearm during the commission of the offense and were not charged with a 3rd degree
felony or higher from the same course of conduct
Those charged with a 4th degree felony violation of petty trafficking would also be eligible
for intense supervision as long as the prosecutor does not object.
Three failed drug tests would be required before an individual would lose eligibility for
the program.
Sexual Offense Chapter
Recommendations:
Remove Residency Restrictions
This proposal would remove residency restrictions prohibiting offenders from living in
certain locations. Empirical data shows there is no evidence to support that residency
restrictions impact public safety; conversely, restrictions place significant burdens on
offender’s ability to establish a support network and housing in order to become a
productive member of society.
Petition to Deregister
A. All offenders will be permitted a limited pathway to petition the court to remove their
duty to register or lower their tier. After a set period of time, offenders could petition the
sentencing court to remove their duty to register. For Tier III offenders, a petition to
deregister could be filed after 15 years of registration. For Tier II offenders, a petition
could be filed after 10 years, and for Tier I, after 5. Upon the filing of the petition, the
court could take any of three actions:
Chapter 2911: ROBBERY, BURGLARY,
TRESPASS AND SAFECRACKING
Added knowingly to .01/.02/.03/.04/.05
Removed attempt from 2911.02(A)(2) and 2911.03(A)(1); retained attempt in 2911.01(A) and (B) and
2911.02(A)
Defined habitation as “any structure or attached portion thereof, however permanent or temporary,
whose primary purpose is a dwelling for any person”
Removed “not a habitation” from 2911.05(A) and (B) so the prosecution does not have to prove a
negative
Added language to 2911.06(C) which clarifies that a person must know or have reasonable cause to
believe the area is a restricted area of public amusement to be charged with an M1 trespass.
Lowered criminal trespass to its current law M4 and added an enhancement to an M3 if the offender
previously was convicted of trespass within 2 years of the date of the offense.
All other changes were editing language for clarity and did not substantively change any provision.
QUESTIONS / DISCUSSION ?????