Ohio Law Allowing Judges to Impose Indefinite Sentences Upheld at State Supreme Court

In State v. Hacker,[1] the Ohio Supreme Court upheld, by a 5-2 decision, the constitutionality of the Regan Tokes Law (RTL).[2] The RTL requires a sentencing court to impose “an indefinite sentence consisting of a minimum and a maximum prison term” for first- and second-degree felonies for which life imprisonment is not an available sentence.[3] Under the RTL,

The trial court must choose a “minimum term” from a range of possible minimum prison terms. For an eligible first-degree felony offense, the range for the minimum prison term is 3 to 11 years; for an eligible second-degree felony offense, the range is 2 to 8 years. The minimum prison term chosen by the trial court dictates the maximum prison term, which must be one and a half times the minimum term.[4]

“There is a presumption that the offender will be released from incarceration after serving the minimum prison term.”[5] If the Ohio Department of Rehabilitation and Correction (DRC) rebuts that presumption, it “may maintain the offender’s incarceration up to the maximum prison term set by the trial court.”[6]

In Hacker, the Ohio Supreme Court consolidated two facial challenges against the RTL.[7] The Defendants-Appellants claimed that the RTL violates the state constitution’s separation of powers, violates their Sixth Amendment right to a jury trial, and violates their Fourteenth Amendment due process rights.[8]

First, each maintained that the RTL “violates the separation-of-powers doctrine because the DRC—part of the executive branch—has been given the authority to maintain an offender’s incarceration beyond the minimum prison term imposed by a trial court.”[9] The Ohio Supreme Court rejected this argument, determining that the DRC does not interfere with the judiciary’s authority to determine guilt and impose a sentence.[10] The court found that the “judicial branch determines whether a person is guilty of an offense and, after a finding of guilt, imposes a prison sentence within the bounds established by the legislature.”[11] On the other hand, it said, “[p]rison discipline is an exercise of executive power.”[12] The court found that the RTL functions consistent with these roles: “[o]nce the trial court imposes minimum and maximum prison terms . . . the sentence for the offender has been set.”[13] “If the DRC determines that the presumption of release has been rebutted, it may maintain the offender’s incarceration—but only within the bounds set by the trial court.”[14]

One Defendant-Appellant also argued on separation-of-powers grounds that the RTL is unconstitutional because it grants the DRC the authority to recommend that an offender be released before he completes his minimum prison term.[15] The Ohio Supreme Court summarily dispatched this argument, finding that no offender could show standing to challenge this provision of the RTL as “offenders can only benefit from the DRC’s recommending that they be released before they have served their minimum prison terms.”[16]

Next, the Defendants-Appellants argued that the RTL violates their “right to a jury trial because the DRC is authorized to maintain [their] incarceration beyond the minimum prison term set by the trial court without any jury findings to support the extended incarceration.”[17] The court rejected this argument “[b]ecause no determination by the DRC regarding [an offender’s] behavior while in prison will change the range of penalties prescribed by the legislature and imposed by the trial court . . . .”[18] “[T]he ‘prescribed range of penalties’ is determined upon the return of a guilty verdict—or . . . when the offender pleads guilty to the charged offense.”[19] The trial court—not the DRC—determines the minimum, which thus determines the maximum, prison term.[20] Thus, “the right to a jury trial is not implicated.”[21]

Finally, both Defendants-Appellants challenged the RTL on due process grounds. They argued first that the law is unconstitutionally vague and second that the procedures provided by the law are insufficient to protect their rights.[22]

First, the Defendants-Appellants argued that the RTL is unconstitutionally vague because the notice given by the RTL as to “what conduct will trigger maintenance of an offender’s incarceration” is inadequate.[23] To resolve this challenge, the court first noted that the portion of the RTL highlighted by the Defendants-Appellants could not be read in isolation.[24] The court determined that when the entire section of the RTL that allows the DRC to determine when the presumption has been rebutted is read, the statute “puts offenders on notice about which acts are prohibited and may result in the rebuttal of the presumption of their release.”[25]

The court also rejected the claim that the RTL violates due process by providing insufficient procedures. As an initial matter, the court rejected the state’s argument “that the offenders do not have a liberty interest in not being held beyond the minimum prison term imposed by a trial court.”[26] The court found that the “presumption of release creates an interest that entitles offenders to due-process protections.”[27] However, because the RTL “provides the offender with a hearing before his incarceration is maintained . . . it does not, by its terms, deprive an offender of ‘notice and an opportunity to be heard * * * at a meaningful time and in a meaningful manner.”[28]

Justice Jennifer Brunner, joined by Justice Michael Donnelly, dissented. The dissent noted that it agreed with the majority that the law does not violate the separation-of-powers doctrine, that the offenders lacked standing to challenge the early release provision, that the RTL does not violate the right to a jury trial, and that the Defendants-Appellants have a protected interest in their freedom after their presumptive minimum sentence has expired.[29] However, the dissent disagreed with the majority’s findings regarding the adequacy of the procedures created by the RTL.

The dissent’s main points of contention were that (1) the “RTL does not specify the contents of (or the standards to be applied at)” the hearing; (2) “the entity that will seek to rebut the presumption of release is the same entity that will decide whether the presumption has, in fact, been rebutted”; (3) even if the DRC finds the presumption rebutted, “it has the discretion to decide whether it ‘may maintain the offender’s incarceration’ for ‘an additional period’ that ‘shall be * * * reasonable,’” and “[t]here is no statutory guidance whatsoever about what types of circumstances prompt the exercise of this discretion or what constitutes a ‘reasonable’ ‘additional’ period of incarceration”; and, (4) there are no provisions requiring that the offender receives notice of the hearing or that the offender be present at the hearing.[30]

As such, the dissent would have found that the RTL violates offenders’ due process rights.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].