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Table of Contents

1."Super Flops" [continuances of 10 years or more] are Unnecessary & are Producing Heightened Tensions Inside the Prisons. (Page 2)

2. "The Serious Nature of the Offense": As Defined & Weighed by the Sentencing Court vs. As Defined & Weighed by the Parole Board (Page 6)

3. The Actual Time Served for Prisoners Sentenced Prior to Senate Bill 2 Should Be Substantially Equivalent to Time Served for Those Prisoners Sentenced After Senate Bill 2. (Page 9)

4. Non-Retroactivity of Senate Bill 2 (Page 10)

5. Parole Guidelines (Page 11)

6. Exclusive Discretionary Authority of Parole Board (Page 12)

7. Parole Board Members as "Protected" Civil Servants (Page 13)

Page Two


In 1991 former Lt. Governor Mike Dewine initiated a comprehensive study of Parole Board policies and practices. The Dewine Report was critical of several aspects of the parole decision-making process. During the same time, the Sentencing Commission was finalizing its report, effectively eliminating Parole Board early release decisionmaking under the new felony sentencing scheme. One result of these two (2) high level studies on parole practices was the rapid evolution of the Board into a more "conservative" and "get tough" posture regarding early release decisions.

For more than 20 years, prior to 1993, the Parole Board considered a five (5) year continuance as the maximum term of years to be given to any prisoner at his initial (or at any subsequent) parole hearing. The five (5) year maximum was not legally imposed by Administrative Rule or by legislation; it was simply the Board's longstanding operational practice. For the past few years the Board has been giving continuances ("flops") of 10, 15, 20, 30, and even 40 years! It has become a common practice of the Board to continue inmates to their maximum sentences.

These new "super flops" of 10, 20, 30, & 40 years have been imposed on inmates in ways which CIIC staff find very difficult to understand. It would be less confusing if such "super flops" were issued only to inmates who have arrived at their 1st parole hearing. However, these "super flops" also have been given to inmates after their 2nd, 3rd, or 4th hearings.

For example: an inmate was 1st seen by the Board and given a five (5) year flop; then, after 5 years, was seen a 2nd time by the Board and given a two (2) or three (3) year flop; then, after 2 or 3 years, he is seen for the 3rd time by the Board and given a flop of ten (10) years or more.

This doesn't make sense. When imposed on inmates who have already received a series of gradually reduced continuances from the Board (i.e., 5 years, then 4 years, then 3 years then two years) it is very understandable why these "super flops", have served to heighten tensions inside the prisons. Often, "super flops" have resulted in an automatic increase in an inmnate's security status and transfer to a higher security prison; this despite the inmate's long documented history of good institutional adjustment which had earned him reduction in security status and transfer to a lesser security prison. Thus, "super flops" have caused collateral "punishments" (security level increases) which are completely unrelated to an inmate's institutional adjustment or conduct. Indeed, such collateral consequences are in direct contradiction to an inmate's demonstrated history of good behavior.

For example: An inmate has successfully demonstrated good conduct for many years, and has properly earned his way to lesser security status, and has received gradual reductions in the length of continuances at several Board hearings, and then he receives a "super flop", triggering a reclassification and transfer back to a higher security prison; not because of his bad behavior, but despite his good behavior.

It is not difficult to understand the sense of"outrage", "unfairness", "injustice", and "loss of hope" expressed by inmates who suffer (or who witness) such examples. Many inmates believe that the Board's new "get tougher" attitude is motivated by a need to placate" and "appease" Victim's Rights advocates, legislators and the general public. Inmates view the Board's "new posturing" as "mean spiritedness", "unfair", "unwarranted" and as "unjust resentencing". However, it is important to note that the record to date of the new Open Full Board Hearing process does not reflect a motivation or "posturing" of the Board to "placate" or to "appease" victims. Open Full Board Hearings are reserved for those cases involving the most serious kinds of offenses (rape, murders etc.). Victims (or their representatives) are afforded full opportunity to present their views to the Full Board. Of the eleven (11) Open Full Board Hearings conducted during the past year, nine (9) of those 11 inmates were granted parole.

CIIC staff view "super flops" as tantamount to resentencing a prisoner to a definite term of 10 (or 20 or 30 or 40) years beyond his statutory minimum sentence. The number of remaining prisoners sentenced prior to Senate Bill 2 is now fixed and ever decreasing. CIIC staff cannot understand why it is "unnecessary" or "unreasonable" or "burdensome" for the Board to schedule release hearings at least every five (5) years.

This new "super flop" attitude of the Board is believed by some, to have helped trigger one inmate's decision to escape from the Marion prison on February 4, 1997. He was housed at the prison Minimum Sccurity Camp and was scheduled to see the Board later that month. Some believe he was fearful of receiving a "super flop". In addition, Wardens have complained that these "super flops" have resulted in the reduction of "trusted" minimum 1 security inmates who are assigned to various Minimum Security Camps (located outside the main prison compounds) which are essential to prison operations. Under DRC security regulations, inmates who have more than five (5) years to their next Parole Board hearing are ineligible for minimum 1 level security status, regardless of how "trustworthy" his long-term behavior has been demonstrated to prison Security Reclassification staff. An inmate who has "earned" minimum 1 security status and who has safely worked at a Minimum Security Camp for several years, but who receives a flop of more than five (5) years, must be pulled from the Camp and reassigned to a position inside the prison compound. Wardens and prison staff are continually frustrated with not having enough minimum 1 level inmates to assist in the daily operations of the prison (farm workers, messengers, grounds keepers, Community Service projects, etc.). Without a sufficient number of minimum 1 inmates, prison budgets would have to be increased to hire civilian staff to perform the work of minimum 1 security level inmates.

EXCEPT FOR PERSONS SERVING LIFE SENTENCES, PAROLE BOARD CONTINUANCES SHOULD BE LIMITED TO FIVE (5) YEAR INCREMENTS. The Board should require itself to review an inmate's institutional adjustment and other release factors at least every five (5) years. Inmates had long considered a five (5) year flop as the maximum. Contrary to the view of some Board members, a five (5) year flop was viewed by prisoners as "harsh" and not one which raised much hope in the minds of inmates. A five (5) year maximum flop would only mean that the Parole Board should schedule a review hearing at least every five (5) years.

The current members of the Board should not "tie the hands" of future members of the Board by issuing "super flops". Board membership composition will change through the years. Attitudes of Board members may also change with the change in composition. The system is not made less safe by merely requiring the Board to take a fresh look at each inmate (except those serving life sentences) every five (5) years. The Board (and future Boards) will retain its discretion to flop an inmate for successive five (5) year terms, as warranted by each review.

Board members correctly cite the mental stress, emotional anxiety and painful memories that many victims must endure each time their assailant is scheduled for a parole hearing. By statute, victims must be notified of all parole eligibility hearings. The Board, understandably, feels that five (5) year intervals are "too frequent", "unnecessary" and "repeatedly traumatic to victims"; especially in those cases where the Board views "the serious nature of the offense" as warranting a continuance of 10 or more years beyond the minimum sentence imposed by the court. CIIC staff share the Board's sensitivity to victims' concerns. Certainly many victims suffer a renewed anguish each time their assailant is scheduled for possible parole. However, resorting to "super flops" is not the appropriate response to victim anguish. Current law states that the Board cannot grant a parole until the Board "has considered any statement made by a victim or a victim's representative that is relevant" to the prisoner's case and that was received by the Board pursuant to the statutory notice requirement. Victims should be reminded and reassured that their relevant concerns must (by law) be duly weighed and considered by the Board prior to granting any parole.

The Board's imposition of"super flops" is an inappropriate over-reaction prompted (in part) by a genuine empathy for the "renewed anguish" suffered by victims through successive parole eligibility hearing notifications. Statutory notifications are very disturbing to most victims. Such notifications raise the expectation that the victim's assailant possibly may be released. Thus, one supporting rationale for "super flops" is developed:

"Statutory notices cause rekindled grief and anxiety to victims. Being responsible for sending statutory notices to victims, the Board contributes" to the victim's rekindled grief and anxiety. The number or frequency of notices that must be sent to a particular victim is determined by the length of the continuance (flop) given at the prisoner's first parole hearing as compared to the length of time remaining to his maximum sentence. Thc Board controls the length of any continuance (flop). The longer the flop given to an assailant, the fewer the notices that the Board must send to that victim."

The Board, understandably, wishes to preempt (or relieve) itself from "contributing" in any way to a victim's renewed or rekindled anguish. Stretching-out parole eligibility hearings (at scheduled intervals of greater than 5 years) is simply an easy and convenient "exercise of unlimited discretion", albeit for a well intended and compassionate objective. However, the Board's exercise of discretion in this regard should be reasonably self-restrained, not undulv influenced by passion or prejudice, weighed and balanced on principles of fundamental fairness and substantive due process, and objectively structured to ensure "reasonable" time intervals for parole review hearings. A process of parole review hearings minimally scheduled at five (5) year intervals (with no pre-assurance that release will be granted at any interval) and which requires that victims statements must be solicited and considered, is not a process that is disparaging to the legitimate concerns of victims.

CIIC staff have implored the Board to "BEWARE THE METHOD AND MANNER IN WHICH YOU REMOVE HOPE FROM PRlSONERS." These "super flops" are creating a dangerous situation inside our prisons. The Board believes it is simply sending a stern, narrowly focused message to that particular prisoner in issuing a "super flop". We have urged the Board to recognize that their "super flop" practice is sending unintended collateral messages to the inmate population at large, with potentially troubling consequences to prison staff.

CIIC staff are encouraged that extensive, well focused discussions are continuing between DRC Central Office administrators, Adult Parole Authority officials, the Parole Board and various Wardens on wide-ranging issues related to "super flops". We remain hopeful that significant revisions and improvements will be made to enhance the credibility, soundness and fairness of parole decision-making.

Page 6


This Position Paper has been presented as near to the original format as possible. Added emphasis to words and phrases are as they appear in the Position Paper. Not one word has been altered, deleted, or otherwise changed.

WE are FADS. WE shall remain in force until the CHANGES we seek are Accomplished.