Originally published in The Akron Beacon Journal

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Monday, July 1, 1996



Beacon Journal staff writer

Starting today, for the first time anywhere in the United States, some people in Ohio will face the possibility of a prison sentence without a judge or jury.

That's the situation created by little-known provisions of Senate Bill 2, the 1,050-page overhaul of Ohio's criminal code overwhelmingly approved by the General Assembly last year and signed by Gov. George Voinovich last August.

There's a good reason why those provisions, which are almost certain to draw court challenges, failed to spark controversy when the bill was being debated: The people who stand to lose aren't likely to get much sympathy. They are criminals, convicted of felony offenses and serving time.

Under the new law, inmates can be assessed "bad time" -- additional prison time tacked on by officials without a trial -- totaling up to half their original sentence, for crimes committed while behind bars.

Once released after serving their full sentences, they can also be sent back to prison for up to nine months at a time -- again, without a trial -- for violating "post-release control" rules that prison officials can impose on them for up to five years. Again, the total additional time assessed can be up to half their original sentence.

In both instances, critics say and supporters acknowledge that defendants are denied all due process protections of a courtroom. The accused have no right to an attorney, a judge or a jury. They have no right to question their accusers. The normal rules of evidence forbidding hearsay and other inadmissible evidence don't apply.

The state parole board, composed of appointed officials, is the ultimate judge and jury. Normal appeals are not allowed.

Giving state corrections officials that kind of power could lead to a "Cool Hand Luke situation," said Thomas Borcoman, a Stark County defense attorney. He was referring to the 1967 Paul Newman film about an inmate persecuted by a corrupt prison warden.

"What they're saying is 'inmate so-and-so, you're guilty of assault. We're not prosecuting you, but we're going to tack on bad time.' It has to give you some concern," Borcoman said.

"This is scary," added James L. Burdon, an Akron criminal defense lawyer. Supporters of the law argue that the bad-time and post-release penalties were necessary for Senate Bill 2 to achieve its prime goal -- "truth in sentencing." To that end, the new law does away with time off for good behavior and parole, which together resulted in most offenders being released after serving only about two-thirds of their sentence.

But if inmates are to serve their full sentences, these supporters say, how can order be maintained in prison unless there are penalties for violating the rules? How can society be protected from unrehabilitated criminals without some controls after their release from prison? Bad time and post-release penalties resolve both issues, supporters say.

They are confident the new law will withstand a constitutional challenge because prisoners are denied parole and returned to prison by the parole board now.

David Diroll, executive director of the Ohio Sentencing Commission, which largely devised Senate Bill 2, dismisses the defense-attorney protests as * essentially "a semantic argument" because inmates have always been subject to spending more time in prison when parole is denied or revoked.

"We do this every day. People are denied parole in a private hearing without benefit of counsel," Diroll said. "It's not a whole lot different from the way parole works."

But critics argue there is a pivotal difference.

"You might as well say that a lynching and what we call legal execution are the same," said S. Adelle Shank, a former public defender now in private practice in Columbus. "There's no such thing as an unconstitutional equivalent to a constitutional process."

Traditionally, no offender can be kept behind bars longer than the sentence imposed by a judge. Under the new law, for the first time, longer sentences -- potentially twice as long -- can be imposed by a nonjudicial board without the safeguards of a courtroom.

"What happened to the idea that when you served your time, you paid your debt to society?" Shank said. "Now they're saying we're going to haunt you forever -- or at least for a long time." Under the law's post-release control provisions, released inmates can be returned to prison by the parole board for offenses that are not felonies, so long as they involve deadly weapons, harm or attempted harm to others or sexual misconduct.

While bad time can be added to an inmate's sentence only for offenses defined as crimes under Ohio or U.S. law, the criminal courtroom standard of proof of beyond a reasonable doubt isn't required. The parole board, on the recommendation of a warden, need only find "clear and convincing evidence" of guilt.

"The standard of proof will be lower and those time-tested ways of determining the truth will not apply," defense attorney Burdon said. The lack of due process will be an invitation to abuse, he said.

"The original infraction will probably be viewed by a prison guard, but the guard's version of the truth won't be tested," Burdon said. "A violation that might get you put in the hole (solitary confinement) now can get you 90 days" of additional prison time. "That's three months out of a man's life maybe because a guard didn't like him."

The 1993 report of the Sentencing Commission said that seven other states had similar bad-time statutes.

But Shank, the former Columbus public defender, contacted officials in each of the states and learned that wasn't true.

"None of those states uses bad time," she wrote in a February 1994 memo to the Sentencing Commission. "Instead, each uses a system of good time with provisions for taking away good time credit for bad behavior."

The mistake in the report was one reason why the bad time and post-release control penalties failed to stir controversy in the General Assembly. Most legislators didn't know Ohio was breaking new ground.

"I don't remember being told that," said state Sen. Scott Oelslager, R-Canton, a member of the Senate Judiciary Committee.

Diroll acknowledged that Shank was correct and the new law "was unique."

"But we didn't feature that," during presentations to the legislators, he said.

While acknowledging that the new law might "sound pretty bad," Diroll said it will actually benefit inmates because they will know exactly how many years they have to serve.

Under the old system, "you can be denied parole for mouthing off or being disrespectful," he said. Denial could mean years more of a long indeterminate sentence to be served.

"At least with Senate Bill 2, it (the extension) can be only 9 months at a * time," he said.

Diroll said the concerns about bad time are exaggerated.

An inmate's sentence could be doubled, Diroll said, but only "if you screw up in every way possible. Most people aren't going to get bad time."

The best argument that the parole board might hesitate to hand out much additional time is that Ohio's prisons already are bursting. As of Friday, there were 45,105 inmates in state prison -- 38 percent more than the facilities were designed to handle and more than triple the number of 20 years ago.

© Copyright 1998 The Akron Beacon Journal

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