More Alternatives to Prison on the Horizon

Back in 2014 when the Ohio legislature overhauled the felony sentencing scheme with H.B. 86, it was clear that politicians were motivated to stem the tide of persons being sent to prison for so-called “low level, non-violent offenses.”  As part of the new legislation, courts were constrained in their ability to send offenders to prison, under certain circumstances, for non-violent felonies of the 5th and 4th degree.  The extent to which this legislation has been effective in reducing the prison population is debatable, but it nonetheless signaled a realization that perhaps prison is not always the appropriate punishment for certain types of felons.

I say the results are debatable because in my experience, very few courts were sending these types of offenders to prison anyway.  Most judges were willing to give non-violent, first time felons a chance at community control (probation).  But, there are judges that seemed too quick to send defendants to the penitentiary, and at least in these counties, judges had to work harder to impose such sentences.

Well, the legislature has not stopped with H.B. 86 in its effort to find alternatives to prison.  One of the more recent ways in which the legislature has acted on this front is with a program called “TCAP,” which stands for “Targeted Community Alternatives to Prison.” On June 30, 2017, Governor Kasich signed into law a budget bill (H.B. 49), which among other items, further restricted the ability of common pleas courts to sentence low-level felony offenders to prison in the first instance for counties participating in TCAP.

Additionally, the revised sentencing statutes also also restrict the judge’s ability to send felons to prison for the entirety of the reserved prison terms after violating the terms of their community control. Let’s talk about both of these important changes, starting with TCAP.

TCAP started initially as a pilot program in a handful of counties; but, beginning July, 2018, the 10 most populated counties in Ohio are required to participate in this initiative.  Essentially, courts are given monetary incentives to find alternatives to prison.

Counties that are required to or voluntarily decide to participate in TCAP are generally prohibited from sending F5 offenders to prison if their sentences for felonies of the fifth degree is twelve months or less.  There are exceptions, of course, including sentences imposed for F5 sex, violent or drug trafficking offenses.  Additionally, if the offender has a previous conviction for a sex or violent offense, the judge can send an F5 offender to prison for a 12 month sentence.

In exchange for these sentencing limitations on F5 offenders, TCAP counties will receive block grant funding from the Ohio Dept. of Rehabilitation and Corrections, based on a pre-determined formula (that is outside the scope of this post).  In short, ODRC will help pay for alternative programming that is utilized by the sentencing court in lieu of sending someone to prison.  It is important to note that in order to be TCAP eligible, the judge must determine that the offender is someone that would ordinarily be sentenced to prison as opposed to being granted community control.

And, as previously noted, the new sentencing scheme also restricts a court from sending an offender that is on community control to a lengthy prison term should he violate those terms.  Essentially, if an offender is placed on community control for a 5th degree felony and subsequently violates his community control, the court can only send that person to prison for 90 days (as opposed to 6-12 months) if the violation is “technical” or the commission of a misdemeanor offense.  Similarly, if an F4 defendant violates community control, a judge can only send the person to prison for 180 days (as opposed to 18 months) as long as the violation is “technical” or a misdemeanor.

Curiously, however, there is no definition of what constitutes a “technical” violation.  Does it mean failing to report? Failure to obtain employment or complete required treatment?  Or, does the term “technical” extend to having a positive drug screen?  At this juncture courts and the defense bar do not have a complete handle on this aspect of the revised sentencing statutes.  But, you can be sure defense attorneys will be arguing that a great many violations are merely “technical.”  Sooner or later there will be a judicial gloss on this term, or the legislature will have to provide better guidance.  Nonetheless, it is apparent that our elected representatives are further attempting to restrict the number of low-level felons that go to prison.  Will it work?  Only time will tell.

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