The Board now views five (5) year flops as "unrealistic" and "not truly meaningful". It argues that it is simply giving continuances which it feels are more accurate of the true length of time an inmate should serve, based on "the serious nature of the offense" for which he was convicted. Simply put, the Board has moved from a practice of ensuring that a prisoner is scheduled and reviewed (at least every five (5) years) for possible early release consideration, to a practice of pre-determining the actual term of incarceration which the current Board feels should be imposed on the prisoner, up to the maximum term imposed by the sentencing judge. Such "predeterminations" may extend to 40 years. The critical issue is the extent to which (if at all) this new attitude and practice of the Board may be tantamount to the Board substituting its notion of "serious nature of the offense" for that of the sentencing court. Many prisoners and others argue that the "serious nature of the offense" has already been considered, weighed and determined by the court at the time of sentencing.
Moreover, many argue that, under our pre-Senate Bill 2 indefinite sentencing structure, most sentencing judges have an expectation that the Board would release a prisoner at any time beyond his full minimum sentence, if in fact the prisoner has demonstrated good institutional adjustment. Thus, many judges had (have) the expectation that the most important factor for the Parole Board to consider was (is) the inmate's post conviction behavior and adjustment while in prison.
The Parole Board can and often does view the minimum sentence imposed by the court as simply not enough time to atone for the "serious nature of the offense", even though the prisoner has demonstrated productive participation in rehabilitative programming and has not shown any anti-personal/anti-social behavior. In its weighing of "seriousness", the Board is not limited to considering the specific offense for which the prisoner was convicted. Board members will state that they "look beyond the specific offense and even beyond the indictment" to consider all relevant factors which may have contributed to the offender's criminal conviction. Through plea bargaining an offender may have pled guilty to a lesser offense for which the judge is statutorily limited in imposing a sentence. The Board does not consider itself so limited in weighing the "serious nature of the offense" to only the specific offense for which the offender was convicted. The Board considers the "seriousness" of the offense as stated in the indictment as well as "non-evidentiary" hearsay statements which may be mentioned in an investigation report. Thus, the typical prisoner is properly viewed as someone who has in fact engaged in criminal conduct of a nature that is much worse than the specific offense for which he was sentenced. The "minimum sentence" imposed by the court is rarely viewed by the Board as a sufficient amount of time to serve based on the "true" (more comprehensive) seriousness of the offender's criminal conduct. A prisoner's "true" offense is often far greater and more serious than his "sentenced" offense. In setting an offender's minimum sentence, the sentencing judge is often viewed by the Board as being statutorily limited and constrained from imposing a sentence that is truly comparable to the total seriousness of the offender's conduct.
The issue of "seriousness" is made more confusing in those cases where a judge chooses not to impose the maximum minimum sentence on a plea bargained conviction.
For example: Pursuant to a plea bargain, a defendant is found guilty of a Felony 2 offense. The judge may set a minimum sentence of either 2, 3, 4, or 5 years and a maximum sentence of 15 years. The judge chooses to set a minimum sentence of 2 or 3 years (i.e. he chooses not to set the maximum minimum of 5 years). By not setting the maximum minimum, how can one (the Board) assume that the judge did not fully consider the "true" seriousness of the offense or that the judge was somehow "statutorily limited" in imposing a sentence more reflective of the "true" seriousness of the offender's conduct?
In denying parole to well-behaved, well-adjusted prisoners far beyond their minimum sentences, the Board views itself as an adminstrative safeguard against releasing prisoners who, in the Board's opinion, simply haven't done enough time based on the Board's broader definition of "seriousness of the offense". Many argue that the Board is simply "resentencing" the offender based on the Board's independent and much broader assessments of "seriousness" and "offense".
A survey of sentencing judges conducted by C.U.R.E. [Citizens United for Rehabilitation of Errants] in early 1996 revealed that only five percent (5%) of the eighty (80) survey respondents indicated that they expected the Parole Board to continue an inmate beyond his minimum sentence based on the severity of the crime or that they expected the offender to serve his maximum sentence. Fifty-two percent (52%) of the respondents expected an offender with an indefinite sentence to serve at least the minimum sentence, and then, if the offender has demonstrated positive institutional adjustment, the offender should be released.
It should be noted, however that the overwhelming number of written comments from sentencing judges regularly received by the Board show a "judical attitude and expectation" completely contrary to the results of the C.U.R.E survey. The responses (to the 21 day statutory notice requirement) frequently received by the Board reportedly reveal a prevailing judicial sentiment that is inconsistent with the views expressed by those judges who responded to the C.U.R.E survey.
There remains a wide divergence between the "expectations" of many sentencing judges and the actual practices of the Parole Board with regard to how much time a prisoner will (should) serve. Moreover, the Parole Board does not give significant weight to the fact that a prisoner has demonstrated good behavior while incarcerated. Prisoners are expected (not rewarded) to behave themselves and to take advantage of rehabilitative programming.
There is a continuing debate as to whether a judge, in setting the minimum sentence, was in fact considering the same level of "seriousness" of the offender's criminal "offense" (as broadly defined by the Parole Board) or whether the judge was statutorily limited to defining the "seriousness" of the offense solely as it relates to the specific offense for which the offender was convicted.
The Parole Board should adjust its practices to ensure that inmates serving indefinite sentences (pre-Senate Bill 2) should not be required to serve significantly more time than inmates sentenced under Senate Bill 2. Because Senate Bill 2 was not made retroactive, Ohio's prison system is greatly challenged with operating a dual sentencing system. Fundamental fairness and concerns for prison safety demand that the Board adjust its current practice of "super flops" and become more mindful of ensuring a substantial equivalence of actual time served by inmates under our dual sentencing structure.
For example: An inmate sentenced prior to Senate Bill 2 may be serving an indefinte sentence of 3-15 years; whereas an inmate sentenced for the same offense after Senate Bill 2 may be serving a definite sentence of 5 years.
Just because the Board has the legal right and exclusive discretion to continue the pre-Senate Bill 2 inmate to an actual term up to his maximum 15 year sentence, it would be unfair, unjust and unwise for the Board to continue that inmate for a term of years substantially greater than the maximum term (5 years) for which he would have been sentenced had he committed that same offense after July 1996. The General Assembly has revised and adjusted the minimum and maximum penalty ranges for all felony convictions. [Senate Bill 2]. In the interest of fundamental fairness and prison safety, the Parole Board should revise and adjust its Continuance practice" to minimize any significant disparity in actual time served between inmates sentenced prior to pre-Senate Bill 2 and those sentenced after Senate Bill 2.
The Board's apparent disregard of this "disparity" issue is producing increasingly dangerous tensions among the pre-Senate Bill 2 prisoner population. The growing disparity in actual time served between inmates within our dual system is fueling potentially disruptive behavior and increased anger. Inmates perceive the Board's attitude and practices in this regard as "mean spirited", "unfair", "unjust" and simply as "the Board's resentment of the legislature's enactment of Sentate Bill 2", which effectively removed the Board from making early release decisions.
One guiding principle of parole decision-making should be: "To ensure a substantial equivalence of actual time served, based on the revised maximum penalties prescribed in Senate Bill 2."
As originally introduced to the legislature by the Ohio Criminal Sentencing Commission, Senate Bill 2 had a retroactive provision that would have accelerated the parole hearings for "first time non-violent, non-dangerous offenders". This would have led to a strong possibility of many prisoners being released after having served a "substantially equivalent" term of incarceration. The General Assembly chose not to include the retroactive provision in the final enactment of Senate Bill 2. Contrary to the assertions of some, the Parole Board is not to blame for the decision to remove the retroactive provision. Despite what many believed to be an inherent fairness of such a provision, the prevailing sentiment among Ohio legislators at the time was that a retroactive application of the new sentencing scheme would be perceived (by the public and the media) merely as a mechanism for triggering the early release convicted felons in order to relieve prison crowding. It remains most difficult (if not politically unpalatable) to talk about "prisoners", "fairness" and "accelerated release" in the same sentence. In prisons, as in politics, perception is reality. Other state legislatures (Florida most recently) have come under strong public attack and criticism for passing legislation that resulted in the accelerated release of prisoners, despite the increased dangerous conditions caused by severe prison crowding. Unfortunately, the prevailing perception among most legislators is that a majority of the voting public strongly object to any "early release" mechanism as a response to prison crowding. "Build more prisons" is the perceived acceptable response to prison crowding. The critical issue remains: "How to change public perception, in order to change political decision-making, in order to produce a better prison system?"
Parole Guidelines are merely an administrative tool, self-developed by the Board for "possible" guidance in its decision-making process. The Guidelines are not "law". They were not promulgated pursuant to any DRC Administrative Rule or Policy Statement, nor were they developed pursuant to any legislation. Parole Guidelines are merely "suggestive" to the Board. The Board can (and frequently does) "go outside" the Guidelines in making release decisions. An inmate has no rights with respect to the Guidelines because the Board has no legal obligation to follow them. The Board is free to continue a case for any length of time, regardless of the Guidelines. Furthermore, it may even do so based upon erroneous information.
Since 1984 CIIC staff have advocated that Parole Guidelines be either legislatively mandated or, at least, promulgated pursuant to DRC Administrative Rules. We believe that an early release guideline system can be developed which is legally enforceable and which properly balances the need for more structured discretion on the part of the Board with the need for greater "fairness" and "equity", without sacrificing legitimate and reasonable concerns for public safety. Since June 1996, the Adult Parole Authority has been engaged in well focused efforts to "revise" the current Parole Guidelines. CIIC staff is hopeful (if not optimistic) that their final product will be a substantial improvement over the current Guidelines system.
The case law is clear on the issue of Parolc Board authority, as cited by the Ohio Public Defender's Office in July 11, 1996:
The United States Supreme Court stated plainly that Ohio prisoners have no right to be released at any time before they "max out." In Jago v. van Curen, (1981) 454 U.S. 14, the court held: "Parole for Ohio prisoners lies wholly within the discretion of the Ohio Adult Parole Authority. The statutes which provide for parole do not create a protected liberty interest." See also Inmates of Orient Correctional Institution v. Ohio Adult Parole Authority (C.A. 6, 1991), 929 F.2nd 233 ["the law of Ohio gives a convicted person no legitimate claim of entitlement to parole before the expiration of a valid sentence of imprisonment"]. As these cases make clear, the Ohio Parole Boad has sole and exclusive authority to decide whether to release an inmate on parole. The Board may deny parole for any reason, and may continue any case as often as it deems appropriate, until the inmate serves the maximum term. Parole Board decisions are not appealable.
Until and unless current law is changed, Parole Board decisions are legal, lawful and legitimate, regardless of how "unfair", "unreasonable", "unwarranted", "unjust", "unprincipled" or "ridiculous" those decisions may seem to anyone. Any claim that a Parole Board decision is "arbitrary and capricious" bears an extraordinarily high legal standard of proof in order to prevail. We know of no case where a court has found the Ohio Parole Board to have "abused its discretion" in either denying or granting a parole. The Board's statutory authority and discretion remains very broad and exclusive.
One good thing about the current statutory scheme is that Parole Board members are "classified" employees of the State Civil Service System. They do not serve at the pleasure of the governor nor at the pleasure of the Director of DRC. The statute was deliberately (and smartly) structured to give Parole Board members "protection" and "insulation" from improper political influence or pressure. In fact, Board members will quickly inform anyone that the opinion of a particular legislator or any other elected official carries no greater influence in their decision-making process than the opinion of any other concerned citizen. This is as it should be. However, many have expressed serious concerns that the Board is being unduly influenced by the emerging political clout of "victims rights" advocates. The strong perception from prisoners and their loved ones is that the current Board has become "more conservative" and "more heavy handed with these 'super flops"' merely to appease the growing "victims rights" constituencies within the voting public. The issue is whether the current Board has lost sight of its "civil service/job protection status" and whether the Board is (for whatever reason) "afraid to offend victims groups". Many persons (though not CIIC staff) even argue that the Board allows "victim representatives" to effectively "veto" what would have otherwise been a favorable release decision. Those persons reasonably question why the Board apparently feels "protected" from one type of political constituency but not from another.
In all fairness to the Board, they continue to be in a "no-win situation", under the current statutory scheme. Board members are still "damned if they do" release a prisoner and "damned if they don't". The Board certainly continues to release many prisoners each year; just not at the higher percentage it did prior to 1993. Many (if not most) citizens probably view this lower release rate as evidence that the Board has finally begun to do things the "right" way. Indeed, many good citizens feel that the "parole pendulum" has finally swung back to where it should have becn prior to 1993. Maybe so. But that does not diminish the very real and increasingly dangerous situation inside our prisons which I fear current parole practices are unintentionally exacerbating.
Finally, CIIC staff continue to enjoy a very good and respectful working relationship with the Parole Board, despite our serious differences of opinion and philosophy with regard to several critical issues and practices. We know Ohio Parole Board members and Hearing Officers to be hardworking, dedicated, conscientious, intelligent, and highly principled criminal justice professionals who bring the best talents they have to one of the most difficult decison-making processes in all of state government. Although we remain very critical of their current practices and do not share their perspective or viewpoint on several important issues, we are convinced that Parole Board members and Hearing Officers remain guided and driven in their decision-making by a sincere belief and conviction in what they honestly perceive is in the best interest of public safety and Ohio's criminal justice system.
END of page 13 and of CIIC STAFF POSITION PAPER.
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.
OHIOANS -- This is the official position of the committee assigned by your statutory laws as the oversite group for correctional institutions. Members of the CIIC visit inside the prisons, talk to prisoners of all levels, communicate with prison administrators daily, and they know what is going on inside. The research assistants of the CIIC are kept constantly busy addressing calls from family and friends of prisoners who have grievances and complaints ranging from wrong info on the parole risk assessment instrument, which the Board uses to determine guideline classification, to abusive treatment by correctional officials within the prisons. Families, check out the list of Senators and Representatives whom YOU elected to serve your interests who sit on the CIIC board. The list is provided for you at this site. Then, tell them to get busy supporting Parole Reform Efforts that will be hitting the Ohio legislative bodies soon. Go to CURE-Ohio's site and click on the Ohio Legislative Black Caucus Press Release, a detailing of recommendations to moderate the Parole Board's full-discretionary powers. ELECTION YEAR APPROACHES!! Don't make your incarcerated loved ones wait another year! GET BUSY!! DOWNLOAD AND SEND THE COMPANION PETITION/LETTER TO YOUR APPROPRIATE CONGRESSIONAL REPRESENTATIVE!! LET YOUR VOICES BE HEARD!!