In 2018, Franklin County prosecutors asked a judge to sentence a 34-year-old Columbus woman to 13 years in prison on a charge of involuntary manslaughter. Her attorney knew instinctively the sentence was too steep.
Yes, the offense was serious. The woman, an addict, had shared heroin with a friend in a Columbus “trap house,” where drug users hang out. After injecting the heroin, the woman’s friend overdosed and died on the spot. The woman and others in the trap house tried but failed to revive her.
The trap house manager ordered the woman and the others not to call 911 but to dispose of the body. The woman started to take part in the task, but then ran away. The others later identified her to police.
However, the woman’s attorney, Diane Menashe, pointed out several mitigating factors in a legal brief to the court. The woman had fully confessed and was remorseful. She had tried to revive her friend and didn’t want her to die. Also, the woman’s record consisted mostly of misdemeanors, with one previous felony.
Most notably, Menashe found in Franklin County court records nine previous involuntary manslaughter cases, all involving “corrupting others with drugs,” in which the defendants were sentenced to between two-six years. Four of the sentences were three years.
With that knowledge, the judge sentenced the woman to four years and 11 months in prison. The problem was that to obtain information about the previous nine convictions, Menashe had to spend 30 hours poring through court documents, because a database that would have allowed her call up past cases with a few keystrokes didn’t exist. It still doesn’t. Menashe says that must change.
“If you are in the criminal justice system, it should be equitable for all,” Menashe says. “Data would allow us to see where equity is missing.”
Information gap
Ohio Supreme Court Chief Justice Maureen O’Connor and court Justice Michael Donnelly agree that judges in Ohio’s 88 common pleas, 131 municipal and 33 county courts don’t have access to the information they need to sentence defendants fairly – even though state law requires them to hand down sentences in line with similar past cases. Judges know the record of the defendant in front of them, but they don’t know how other courts have sentenced in like situations.
Today, O’Connor, Donnelly, the Ohio Criminal Sentencing Commission and an ad-hoc committee have launched an initiative designed to gather felony sentencing information from courts across Ohio. It will provide judges a uniform electronic form on which they will submit sentencing details on all their cases, so that in the future they can use the database to help them sentence fairly and consistently, and eliminate any bias or perceived bias they may carry.
“It will advance the criminal justice in Ohio light years from where it is now in terms of providing equal treatment and address the problem of implicit bias,” Donnelly says.
A pilot project has begun in Allen County Common Pleas Court, where a judge is entering sentencing data into the new system, designed by the University of Cincinnati schools of Information Technology and Criminal Justice. Other judges and courts are anxious to join the project, Donnelly says.
O’Connor says the data collection is simply good business practice. Any organization needs solid information to measure its effectiveness.
“We have enacted all kinds of policies and programs and have obtained funding for them, yet a lot of information about our criminal justice system can be boiled down to spotty data and anecdotes,” O’Connor says.
Perception of bias
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Supreme Court Justice Michael DonnellyDonnelly – a Cuyahoga County trial judge for 14 years before he was elected to the Supreme Court in 2018 – says it’s impossible to know if bias, especially in terms of race, is a factor in Ohio’s courts and judicial sentences without hard data. He adds, however, that there is at least a perception of bias in courts, not just in Ohio but throughout the country.
Studies and news investigations seem to demonstrate that bias exists.
In September 2020, for example, a Columbia Human Rights Law Review study found that when a crime victim is white, the offender is 4 ½ times more likely to receive the death penalty. Also, Blacks represent more than 66 percent of death-row inmates later exonerated, and when an execution is performed, the crime victim was white 75 percent of the time, the study showed.
An investigation by the Sarasota Herald-Tribune in 2016 found that Florida judges sentenced Blacks to more time behind bars, sometimes twice the time, compared to whites.
Also in 2016, two Louisiana State University economists published a paper that sounded farcical. Between 1996-2012, Louisiana juvenile court judges issued harsher sentences the week after LSU lost football games they were favored to win. Blacks were disproportionately affected.
Ayesha Bell Hardaway, assistant professor at the Case Western Reserve University School of Law and co-director of the CWRU Social Justice Institute, says science has borne out that bias in general is part of the human condition. It doesn’t mean judges are no good.
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Ayesha Bell Hardaway, Case Western Reserve University School of Law, co-director of the Social Justice Institute“I have no interest in impugning the integrity or motives of any jurist,” Hardaway says. “Of course, there are bad actors, expressing racial animus, and lots of people who harbor gender stereotypes."
“But I don’t think this is about that sort of question,” Hardaway says. “Both things can be true. We can assume the good character of a judge and also recognize that uniformed and unchecked authority can produce biased results.”
Donnelly says bias can be unconscious and unintentional. For example, before he became a trial judge, his home was burglarized while he and his family were out. He wonders now whether his experience as a crime victim, coupled with lack of sentencing data available to him, influenced his rulings as judge.
“We are operating with our guts to dispense fair, just and proportional sentences,” Donnelly says. “But whatever meets the principles of sentencing is in the eye of the beholder.”
O’Connor adds that race isn’t always the factor that leads to an unfair sentence. Menashe’s client, for example, was white.
“But if all things are equal and the only difference is race, that will demonstrate an issue,” O’Connor says.
One concern is whether past sentencing data might narrow the range of years judges can send defendants to prison, thus removing their discretion. State code now gives them a broad range of years to consider when it comes to sentencing in unique and complex cases. Judges might feel uncomfortable sentencing outside the parameters of previous cases if that data became available.
“This (data-collection system) won’t take discretion away but will make judges more aware why they are making the decisions they are making,” Hardaway says.
A skeptical view
Scott Anderson, professor at Capital University Law School and former member of the Ohio Criminal Sentencing Commission, says tracking sentencing data can help resolve racial inequities but the effort will face hurdles if the concerns of trial judges aren’t considered.
Anderson says that since Ohio judges are elected – as opposed to the federal courts, where judges are appointed for life – political foes might use information in the sentencing database against them during campaigns. That may make some judges reluctant to participate in the new data collection system.
Also, the database project might be unfair to rural courts, Anderson says. If an aggravated robbery occurs in a rural county, where such crimes are rare compared to urban areas, a judge’s constituents may demand a tough sentence outside the database parameters, which may not reflect well on the judge statewide.
“(The database) is creating a statewide standard,” Anderson says. “Yes, you have discretion, but you will have problems if you don’t sentence within this consistent standard.”
To solve that dilemma, Ohio should appoint judges instead of electing them, so that judges won't have to worry about their sentencing data appearing in campaign ads of political opponents. Also, the executive and legislative branches need to be held accountable for racial disparities because a sentencing database won't solve problems like bad police behavior.
Short of switching to a judicial appointment system, Anderson recommends dividing the sentencing database into different categories based on population and rural versus urban counties.
Donnelly counters that judges are more concerned about improving the criminal justice system than winning re-election. He adds that dividing the database into rural and urban categories might be seen as implicit bias.
Retired Cleveland Municipal Court Judge Ron Adrine – who served on the Ohio Commission on Racial Fairness in the 1990s – agrees with Anderson that some judges seeking re-election will be reluctant to record their sentencing data in the new system.
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Retired Cleveland Municipal Court Judge Ron Adrine“But the bottom line is there are significant disparate outcomes in the criminal justice system,” Adrine says. “The only way we can start having that discussion as to why the disparities are taking place and how to change it is to capture the data.”
Adrine calls Anderson’s argument that sentencing in rural counties should be looked at differently that sentencing in urban counties “illegitimate and disingenuous.”
“Regardless of what happens in two counties, the actions judges take across the board in Ohio should resemble each other, regardless of the defendant in front of them,” Adrine says.
An old idea reborn
The concept of collecting sentencing data to ensure fairer sentences isn’t new or unique to Ohio. Nationally, a group called
Measures for Justice has been working since 2011 to make accurate criminal justice data available and generate systemic reform.
In Ohio, the attempts go back decades. The state legislature formed the Ohio Criminal Sentencing Commission in the early 1990s to gather sentencing data. Then, about 20 years ago, the Supreme Court assembled the Ohio Commission on Racial Fairness, on which Adrine served, for the same reason. Since then, several additional commissions, task forces and committees have called for the establishment of a sentencing database of some kind.
“The efforts to collect information statewide have been unsuccessful for various reasons – lack of political will or gumption, or due to leadership changes,” says Sara Andrews, executive director of the sentencing commission.
Donnelly said this latest push stemmed at least partly from the death of George Floyd at the hands of police and subsequent demonstrations last spring and summer. Awareness of racial inequality was elevated, and people were ready for change.
O’Connor said growth in technology has also spurred this latest drive to create a criminal sentencing database.
“Technology has evolved and now we have the tools to do this,” O’Connor says. “Before, people had other priorities, other places to put money. There were lots of excuses. Now we have the political and social will in our country to do this.”
O’Connor asked Andrews to put together an ad-hoc committee to look at felony sentencing.
“We thought it would help judges impose sentences that are lawful,” Andrew says. “Criminal code and sentencing structure is extremely complex. We wanted to give judges everything they need to know.”
Gene Zmuda, Ohio Sixth District Court of Appeals judge, was asked to chair the ad-hoc committee, partly because he was a trial judge for more than 15 years, and also because he worked on criminal justice reform in Lucas County.
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Gene Zmuda, Ohio Sixth District Court of Appeals judge“When I became an appellate judge, I was surprised at how many sentences I reversed due to failure to follow regulations,” Zmuda says. “Sentencing is a complicated process. That’s why I accepted the committee chair role.”
The committee first met in 2019. It consisted of trial and appeals judges, court clerks, prosecutors and Supreme Court support staff, among others. They immediately discovered that sentencing forms judges fill out – with information like defendant names, offenses and length of sentences or probation – were different from court to court. Some were electronic, others were paper, and the information recorded wasn’t the same.
The committee realized it had to invent a standardized felony sentencing form for all Ohio judges.
Using the USE
For assistance, Andrews and the committee reached out to the University of Cincinnati, which had worked with the state of Ohio on previous projects, and the two parties signed an agreement in September. The Ohio State University was also invited into the project because Professor Douglas A. Berman in the OSU Moritz College of Law had focused his research and teaching on criminal law and sentencing. Another partner was Case Western Reserve University and its Social Justice Institute.
UC, partly funded by a $59,000 federal grant obtained by the state, fashioned a virtual template for judges to record sentencing information. The website program is called the Uniform Sentencing Entry form, or USE.
Hardaway says the USE will do more than just inform judges about their own sentencing and the sentencing of other judges. Since it’s a public record, academics will be able to research, for example, the number of convictions for certain felonies, how many defendants were found not guilty of crimes and, of course, whether racial bias exists in sentencing.
In addition, criminal defense attorneys like Menashe will be able to obtain past sentencing data without spending hours rifling through documents, as she did for her client whose friend died of a heroin overdose.
“It’s a tool criminal defense attorneys need, especially less experienced ones,” Menashe says. “I’m confident no one else would have done what I did for my client.”
The data in the USE system will help legislators make policy decisions based on real, not speculative, data. It would likely mean fewer sentences being overturned by appeals courts due to errors by trial judges, Hardaway says.
And it hopefully will steer prosecutors away from asking for, and judges issuing, unreasonably long sentences, which will reduce prison populations and save the state money. Ohio imprisons 46,000 inmates at a cost of $30,500 an offender each year. That’s a total of $1.4 billion annually.
“No matter what your political stripes, people can agree when it comes to dollars and cents and where we put our resources,” O’Connor says.
Zmuda says the committee chose to test the USE system with a single pilot program, which started in Allen County in fall 2020, because it didn't want to hand down a mandate from the Supreme Court. The committee wants the system to grow from the grassroots upward instead.
Meanwhile, the committee has been talking to and meeting with other courts and judges – including those in Ironton in southwest Ohio and in Summit County, which holds Akron – interested in the USE system.
“In less than 6 months we have grown exponentially,” Zmuda says. “About 15 courts across Ohio have expressed desire for a visit or have already been visited by us.”
O’Connor envisions that someday the data-collection project will include not just sentencing information but a rundown of everything that happens in a case – the arrest, charges, pre-trial hearings, trials and post-conviction updates.
“In the perfect world, those are the data points we need for a thorough analysis of our criminal justice system,” O’Connor says.
Donnelly says the data-collection project must remain the Supreme Court’s number-one priority.
“If the political will is lost, we will miss a golden opportunity to change the system,” Donnelly says. “Public confidence is the lifeblood of the system. People have to believe that if they take their matter to court, they will be treated fairly. If our citizens lose that, we’re all in big trouble.”
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