Created on Thursday, 31 July 2014 Written by ANDREW WELSH-HUGGINS, AP Legal Affairs Writer
COLUMBUS, Ohio (AP) — A procedure allowing the Ohio prisons director to recommend to judges early release for certain offenders violates the constitutional separation of powers, a prosecutor says in a court challenge to the policy.
At issue in a complaint by Scioto County Prosecutor Mark Kuhn is a law permitting the Ohio prisons chief to recommend early release for offenders who have served at least 80 percent of their sentence.
The law sets up an unconstitutional procedure that judges must follow when they get a recommendation from the director of the Department of Rehabilitation and Correction, according to the motion filed in Scioto County court earlier this month.
Establishing such procedures "...is a blatant encroachment by the legislature upon powers reserved to the judicial branch of Ohio government by the Ohio Constitution," according to the motion.
Ohio enacted several changes to sentencing law in 2011 aimed at saving money by reducing the number of low-level offenders in prison.
In the past two years 414 inmates were deemed eligible for the early release program. Of those, judges granted 94 requests. Dozens more had their requests denied along the way — sometimes at the prison system level — while several were allowed to enter halfway-house type programs.
Many elements of the sentencing law irked judges and prosecutors who felt lawmakers were unfairly tying their hands when it came to punishing offenders, even those convicted of low-level crimes.
The backers of the law "need to understand that they thrust a dagger into the heart of law enforcement and prosecution and court powers in this state in relation to dealing with criminals," said Joseph Hale, an assistant Scioto County prosecutor and lead attorney in the county's court challenge.
In a related case in June, a Ross County judge handling the case of an offender who broke into more than three dozen churches ruled that a requirement he ask the prisons agency for options to prison is a similar violation of the separation of powers. The judge sentenced the offender to four years.
"Requiring the court to seek sentencing recommendations from the executive branch and prohibiting the court from imposing a prison sentence if the department disagrees with a prison sentence is an unconstitutional impediment to the exercise of judicial authority and discretion," wrote Judge Scott Nusbaum in a ruling whose effect is limited to Ross County.
When it comes to the 80 percent release option, lawmakers believed they addressed the separation of powers issue, said Mark Schweikert, executive director of the Ohio Judicial Conference.
"The legislation was designed to give the judge very broad discretion as to whether the judge even wanted to consider the motion," he said.
The prosecutor's challenges involves Jamaica Galloway, sentenced to 10 years in prison on drug possession charges, with a release date in July 2016, which would be shortened by two years if the application was approved.
Earlier this month, Ohio prisons director Gary Mohr asked a Scioto County judge to "strongly consider" releasing the 43-year-old Galloway early based on a number of factors, including her participation in prison programs, her work history behind bars and a positive plan for her life upon release.
Galloway's former attorney said the inmate was remorseful for her crime and took responsibility.
Galloway "had all elements in place to be rehabilitated and to be a candidate for earlier release than what scheduled for," said attorney Christine Scott.
The prisons department said it couldn't comment on pending litigation.