John W. Gerhardt, 263497
P.O. Box 511
Columbus, Ohio 43216
Sen. Jeff Johnson
9024 Parkgate Ave.
Cleveland, Ohio 44108
Several of us have reviewed your proposals, and compared them with ESPRA (Equitable Sentencing Parole Act). While your proposals correct some problems, it fails to correct many other problems and fails to remedy most of the Adult Parole Authority (APA) abuses which ESPRA would.
ESPRA was worked out over a several month period. The final product is a balance between the need to protect society from the truly dangerous among Ohio's prisoners and the need to correct the gross injustices inflicted by the Ohio Parole Board through disparate sentences by refusing to release those who merit such, and other abuses. In fact, it is my understanding, that you have made available to you a copy of a statistical analysis and report which shows the parole board's true agenda. What the report reveals is:
1) that the Parole Board has progressively lowered the annual percentage of parole releases, especially after the effective date of AM Sub SB 2, under the provisions of which the Parole Board reviews only those with life sentences (a minute segment of Ohio's prison population) (the Ohio Parole Board is using the pool of prisoners sentenced to indefinite sentences under the former code to perpetuate and justify its existence);
2) that for the past few years, the total annual number of those committed to the state prison system has progressively declined, while the state prison population continued to have an annual net increase (over-crowding and the increase in the prison population is being artificially inflated by the Ohio Parole Board);
3) that the higher the number of prior convictions, the higher the percentage of parole releases, and the lower the number of prior convictions, the lower the percentage of parole releases (the Ohio Parole Board is manipulationg an artificially high recidivism rate);
4) that the Parole Board releases on the basis of racial quotas more than on the basis of merit.
If I have been misinformed, and you were not provided with a copy of this report, arrangements can be made for you to obtain one. The report, when reviewed along with the CIIC's position paper on Parole Board practices, reveals many of the abuses which desperately need to be remedied.
Also, the Department of Rehabilitation and Correction (DRC) reports reveal yet other APA abuses. The discontinuation of the practice of releaseing parolees from parole supervision after one year, and instead arbitrarily and needlessly stretching the period of supervision two or three years or longer, is yet another abuse which has come to light. (For the record, I am not a parole violator.) You are seeing a parole supervision version of what the APA has been doing to those still imprisoned -- refusing to let people go for no valid, objectively justifiable reason.
The idea of term limits for Parole Board members is an excellent idea left out of ESPRA. This removes the incentive to continue people in prison for no other reason than to continue to give the Parole Board a justification to perpetuate its existence. I recently read a report which showed that Ohio's APA wasn't the first to indulge in this practice. The State of Washington replaced its indefinite sentencing laws with definite sentences, but, unlike Ohio, included a provision which abolished that state's version of the parole board. The expiration date comes, and the state legislature is pressured into extending the life of their parole board because they still had people to review. Then another extension. How long has this been going on? 12 years! It's not too difficult to read between the lines; to perpetuate its existence, Washington's parole board merely gave more continuances and fewer paroles.
Mandatory audio taping -- also not included in ESPRA -- is also an excellent idea, which will curtail some abuses, three specific incidents of which I can relate to you. I personally had been given parole, but before I was released, I was called back. My parole was taken back and I was given my maximum sentence, just because they didn't like my religious affiliation. At the second hearing, that was virtually all that they focused on. On paper, the generic "reasons" for giving me parole were "nature of the offense" and "prior history." On paper, the same generic "reasons" -- only two months later -- were given for maxing me out. Then, shortly thereafter, another prisoner was also continued and told, "Find another religion." These two incidents were last year. Earlier this year, a third prisoner was told -- blatantly -- that he was being punished for exercising his free speech rights and winning a landmark case before the U.S. Supreme Court, none of which was related to his offense. I think those monitoring other cases of abuse have lost count of the number of incidents when the Parole Board told prisoners they were being denied paroles for filing law suits. These statements are always made verbally, and any written records the APA discloses usually seem to be sanitized.
But, some of your proposals, e.g., the manner in which "SB 2 reviews" are to be conducted, not only fall short of remedying the abuses which have been inflicted on many, but will in reality have the affect of continuing to perpetuate them. The way your proposed "SB 2 reviews" read, only those who haven't been to the board benefit. There are thousands who have been continued far past their minimum sentences (most with no objectively justifiable reason). (It should be noted that, for all practical purposes, for most offenses, what were the minimums of the indefinite sentences under the former code, were converted into the total definite sentences under the current law.) "SB 2 reviews" at hearing scheduled x-number of years from now allows the APA to get away with the unjustified continuances already given, with the 3rd and 4th degree felonies suffering from the disparities allowed to continue. They're doing time now called for in 2nd and 1st degree felonies.
Then there is another class of prisoners. Those who have been maxed out, despite maintaining good institutional records. Every single individual in this category is being made to do way more than he would even if he got the most he could get under current law. Many have thus been continued for more than five years. Your proposal makes these people wait five years from their last hearing. 4th degree felons, made to wait 5 years never will get their "SB 2 reviews," and will be made to do five times longer in prison than a 4th degree felon could be made to do under current law. 3rd degree felons will do all or most of the 10 years of their "tails," waiting five years. I'll use my own case as typical. At my third hearing -- the one during which I was maxed out for my religious affiliation -- in effect I was given six more years. The 5th year from the hearing date puts me in the 9th year of a ten year "tail," towards the maximum range of what could be imposed on 1st degree felons under current law. 2nd degree felons may have a "SB 2 review," but they will already be past the 8 year maximum they could get under current law and even past the maximum range 1st degree felons could get under current law.
Alternatively, the latest version of ESPRA, under proposed RC 2967.021(A)-(C), effectively realigns 4th, 3rd, and 2nd degree felons -- even 1st degree felons (although with more careful scrutiny) with SB 2, and within a matter of months, especially for those who are past the most they could get under RC 2929.14(A)(1)-(5) of the current code. Only the 4th and 3rd degree felons -- by definition the less serious offenders -- get near automatic breaks, while 2nd and 1st degree felons -- the more serious offenders -- have an opportunity to get relief but with the more careful scrutiny which common sense suggests should be done with those in this category.
In the analysis which was -- or can be -- made available to you, you have statistical evidence that the Parole Board releases on the basis of race more than on merit. I have already reported instances of prisoners being denied parole because of religion. ESPRA's proposed RC 2967.03(C)(2) would make this practice illegal. ESPRA's proposed RC 2967.03(C)(1) would also make it illegal to deny parole in retaliation for a prisoner exercising his 1st Amendment right of access to the courts. These factors should never have been allowed into parole deliberations, and any legislator opposing this provision, in this day and age, would be committing political suicide. With all due respect, your proposals ignore this question.
Another problem which your proposals over-looked, but which ESPRA remedies, is correcting yet another APA abuse, which has come to light to those investigating APA practices. Just as the Parole Board no longer releases prisoners at the rate it used to, the APA has apparently discontinued the practice of releasing parolees from parole supervision after a year, but is now stretching the period of supervision from 2 to 3 years or longer. If representatives of the APA allege that the purpose of parole supervision is to help the parolees re-integrate into society, then why the arbitrary change to increasing the period of supervision, in most cases for no objectively justifiable reason? Is this being done to "help" the parolee, or is it done to increase the likelihood of violating the parolee on some technicality? From personal experience, after being released from the Federal system in 1983, and being subject to a mandatory 18 months supervision (which I successfully completed), I can relate that, after a few months, the requirements of the supervision became more of a hindrance than a help, particularly in obtaining and trying to keep long-term employment. If someone has gone 6 months, without trouble, then the likelihood of the parolee reoffending is minimal, because by this point in time he's already established himself and is leading a law-abiding life, but the frustration level rises with needless intrusions into such matters as employment, and the fact that the parolee living a near normal life, forgets he's "still in DRC custody." Most technical parole violators I've seen have been violated for being late for appointments, one for buying a car, another for not reporting because he was in a coma in the hospital after being a robbery victim himself.
Another factor to consider is that, under current law (SB 2) the period of post release supervision is viewed as part of the punishment. Also, one needs to consider that class who have already been in prison as long and even longer than they could under current law -- even with post-release supervision factored in. Why allow the APA to prolong the punishment -- if on "paper" -- even longer? There is also the anticipation that the APA -- based upon the evidence of past behavior indicating their basic attitudes -- would, if forced to align prisoners sentenced under the former code to the standard of punishment of current law, merely extend the time of supervision to continue to maintain their control and likelihood of re-imprisoning someone on some pretext. Consider also the recent New Mexico Supreme Court decision refusing to allow extradition of a parolee, because of the Ohio APA's practices. When was the last time any state did such a thing? The fact that the highest court of another state -- presumably just as competent as the highest court of this state -- would feel compelled to deny extradition because of APA vindictiveness speaks volumes about the evils I'm discussing. ESPRA's proposal RC 2967.036(A)-(C) and RC 2967.26 would remedy these abuses while not endangerng the public.
Many of us are elated that, finally, some elected official has publicly voiced the recognition of the need to align the amount of punishment inflicted upon those sentenced under the former code with that which is imposed upon those sentenced under current law. There is increased outrage over the arbitrariness, irrationality, inequity and injustice of current Parole Board practices. This outrage is being aggravated as prisoners see people come in with 3-5 year sentences for offenses many have served 5, 6, even 15 or more years for. It is good that you want to remedy this situation but, in doing so, enact legislation which will truly accomplish the goal of equity and of ending Parole Board abuses. Your proposals contain too many omissions which allow the abuses to continue for years to come. ESPRA remedies these abuses now, while still allowing enough discretion to the Parole Board to continue imprisonment of those who, when objectively viewed, are a serious threat to public safety (the kind the Parole Board seems to release now while refusing parole to those who will only get their lives together, and lead law-abiding, productive lives, if they would only be allowed to).
Maybe, with the enactment of ESPRA, tax dollars now being needlessly wasted on Ohio's unjustifiably growing prisons (remember, the rate of commitments has gone down), can be diverted to more worth-while needs, such as schools, and in such a way as to diminish the necessity of increasing taxes.
John W. Gerhardt
The following submission was requested by Mr. Gerhardt to be an accompaniment to the Open Letter. That request is being honored.
This letter has been sent to Sen. Jeff Johnson, analyzing his proposed bill, and comparing it with other legislation which is available. Only the dense -- or the self-serving maintaining jobs in a bloated prison system who are deliberately misleading the public -- will deny that Ohio's Parole Board and its practices need correcting. Reference THE ANALYSIS OF PRISONER RELEASE DATA(on the FADS sites) for more detailed, documented discussion on parole borad abuses. To confine prisoners sentenced under the former code in prison for years longer than they could get under current law deters no one from committing crimes. Those who commit crimes now won't be subject to this nonsense. The total annual number of commitments to Ohio's prison system is progressively declining. Yet, each year, we continue to have an annual net increase in the state prison population. Why?
Why are we spending millions of tax dollars to keep people in prison who no longer need to be there? Why, when the number of new people coming to prison keeps going down, while the DRC wants to tax you more to build more prisons?
The system needs to be overhauled, and truly reformed. We don't need cosmetic measures, but real reform. Let Sen. Johnson, and your own senator and representative, know you want Equitable Sentencing and Parole Reform, which will end the practice of keeping in prison those who merit parole and won't reoffend, while releasing those who will go on to commit more heinous crimes. The Equitable Sentencing Parole Reform Act will accomplish this. Johnson's alternative will allow the Ohio Parole Board to continue its games, and to continue the abuses. Support ESPRA.