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Ohio Criminal Recodification Committee Ohio Criminal Recodification Committee

Ohio Criminal Recodification Committee - PowerPoint Presentation

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Ohio Criminal Recodification Committee - PPT Presentation

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 ID: 593629

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Slide1

Ohio Criminal Recodification Committee

October 13, 2016

Phillip Nunes

Chief Operating Officer / Alvis Inc.

Member of Recodification CommitteeSlide2

Ohio Criminal Justice Recodification Committee:

Amended Ohio House Bill 483 created the

ad hoc

Criminal Justice Recodification Committee with an enormous charge.Slide3

Play John Oliver Prison

Stop at 3:24Slide4

John Oliver Slide5

“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.Slide6

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.Slide7

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.)Slide8

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.Slide9

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....Slide10

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.)Slide11

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?Slide12

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.Slide13

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

....Slide14

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.Slide15

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.Slide16

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.Slide17

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 / SenateSlide18

Samples of recommendations:

Drug Chapter

Sexual Offenses Chapter

Robbery/Burglary / Safe Cracking ChapterSlide19

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.Slide20

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.Slide21

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

:Slide22
Slide23

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.Slide24

QUESTIONS / DISCUSSION ?????