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  4.  | Ohio’s Shift Back to Indefinite Sentencing: Reagan Tokes Law and Current Local Controversy

Ohio’s Shift Back to Indefinite Sentencing: Reagan Tokes Law and Current Local Controversy

by | Dec 20, 2019 | Criminal Defense

On March 22nd of this year, indefinite sentencing returned to Ohio through Senate Bill 201 known as the “Reagan Tokes Law.” Indefinite sentencing is where a defendant is sentenced to an indefinite range or term of years, with release determinations made by the Parole Board based upon conduct of the incarcerated offender. Definite sentencing, on the other hand, is when the judge sentences a defendant to serve a definite number of years within an applicable range of years. Indefinite sentencing existed in Ohio prior to 1996, and has now returned through the recently enacted Regan Tokes Law. 

Who is Reagan Tokes?

Reagan Tokes was a 21 year-old Ohio State University student who on February 8, 2017, was abducted, raped, and murdered while leaving work late one evening. The man convicted of her murder was on parole for a rape conviction at the time of her death, and committed a series of aggravated robberies in the weeks prior to her murder.

What Offenses Are Subject to Reagan Tokes’ Indefinite Sentencing Scheme?

The Reagan Tokes Law brings Ohio back to indefinite sentencing on only qualifying offenses. These include only first and second degree felonies that are not subject to life imprisonment and that were committed on or after March 22, 2019. Examples of these offenses include, but are not limited to armed robbery, felonious assault, and abduction. Indefinite sentencing does not apply to first and second degree felonies committed before March 22, 2019, first and second degree felonies carrying a life sentence, any third, fourth, or fifth degree felonies.

How Exactly Does Reagan Tokes Law Apply to Sentencing?

The new law can be confusing, but to keep it simple, for a single qualifying offense, the judge determines the minimum sentence within the sentencing range for the qualifying offense and then adds half of that minimum term to itself to arrive at the maximum prison term. So for instance, a first degree felony is punishable by 3 to 11 years. If the judge sentences an individual to a minimum sentence of 8 years on a first degree felony, the individual is facing a minimum sentence of 8 years and a maximum sentence of 12 years (the 8 year minimum plus half of itself).

It is presumed the individual will be released from prison at the expiration of the minimum term; however, the parole board at the Ohio Department of Rehabilitations and Corrections may rebut the presumption of release and hold the individual up to the maximum term based upon the offender’s behavior in prison. In the example above, the individual serves at least 8 years and could be held by the prison for another 4 years. So at the time the judge sentences the individual, it is unclear exactly how much prison time he or she will ultimately serve, hence, the term “indefinite” sentencing.

There are additional rules concerning the application of the new indefinite sentence scheme through the Reagan Tokes Law. The formula can be complicated when applying the rules to multiple offenses, consecutive and concurrent sentences, etc. The important thing to understand is the minimum and maximum term, how that is arrived at, and that the parole board can extend the individual’s stay in prison up to the maximum term. Additionally, it is important to understand the indefinite sentencing rules do not apply to specifications to a count in an indictment. A specification is punishable by mandatory and consecutive prison time that is served prior to serving any prison term imposed on the offender for an independent felony conviction.

Local Controversy Surrounding Reagan Tokes’ Indefinite Sentencing Law

Hamilton County Judge Tom Heekin has recently ruled the Reagan Tokes Law is unconstitutional because it permits a parole board to extend an individual’s prison sentence on a serious felony conviction without a judge’s input. Specifically, Judge Heekin attacked the new law stating it violated the separation of powers doctrine and also deprived an offender of adequate due process. It is appropriate and constitutional for a judge-not a parole board-to make such decisions, according to Judge Heekin. He stated, “[Judges] possess the necessary judicial discretion unrelated to moral or retributive judgments.” Heekin continued, stating the Reagan Tokes Act leaves the parole board with “unfettered discretion to consider minor infractions” when deciding whether to keep someone in prison.

Judge Heekin’s decision was filed on November 20, 2019 in a felonious assault case before him.

Apparently Judge Heekin is not the only one criticizing the Reagan Tokes Law. Attorneys, judges, and professors throughout the state have also voiced their concerns with the new law’s constitutionality or purported lack thereof.

A spokeswoman for the Hamilton County Prosecutor’s Office said they expect to appeal Judge Heekin’s decision.

This is probably one of the first of many appeals courts throughout Ohio will see on the constitutionality question concerning the new law. In fact, the issue could ultimately be heard by the Ohio Supreme Court.

If you or someone you know have been charged with a serious crime, or have questions about potential sentencing ranges, feel free to contact the experienced attorneys at Rittgers Rittgers & Nakajima at our office for your free consultation.