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1. "SUPER FLOPS" [continuances of 10 years or morel ARE UNNECESSARY & ARE PRODUCING HEIGHTENED TENSIONS INSIDE THE PRISONS.

In 1991 former Lt. Governor Mike Dewine initiated a comprehensive study of Parole Board policies and practices. The Dewine Report was critical of several aspects of the parole decision-making process. During the same time, the Sentencing Commission was finalizing its report, effectively eliminating Parole Board early release decisionmaking under the new felony sentencing scheme. One result of these two (2) high level studies on parole practices was the rapid evolution of the Board into a more "conservative" and "get tough" posture regarding early release decisions.

For more than 20 years, prior to 1993, the Parole Board considered a five (5) year continuance as the maximum term of years to be given to any prisoner at his initial (or at any subsequent) parole hearing. The five (5) year maximum was not legally imposed by Administrative Rule or by legislation; it was simply the Board's longstanding operational practice. For the past few years the Board has been giving continuances ("flops") of 10, 15, 20, 30, and even 40 years! It has become a common practice of the Board to continue inmates to their maximum sentences.

These new "super flops" of 10, 20, 30, & 40 years have been imposed on inmates in ways which CIIC staff find very difficult to understand. It would be less confusing if such "super flops" were issued only to inmates who have arrived at their 1st parole hearing. However, these "super flops" also have been given to inmates after their 2nd, 3rd, or 4th hearings.

For example: an inmate was 1st seen by the Board and given a five (5) year flop; then, after 5 years, was seen a 2nd time by the Board and given a two (2) or three (3) year flop; then, after 2 or 3 years, he is seen for the 3rd time by the Board and given a flop of ten (10) years or more.

This doesn't make sense. When imposed on inmates who have already received a series of gradually reduced continuances from the Board (i.e., 5 years, then 4 years, then 3 years then two years) it is very understandable why these "super flops", have served to heighten tensions inside the prisons. Often, "super flops" have resulted in an automatic increase in an inmnate's security status and transfer to a higher security prison; this despite the inmate's long documented history of good institutional adjustment which had earned him reduction in security status and transfer to a lesser security prison. Thus, "super flops" have caused collateral "punishments" (security level increases) which are completely unrelated to an inmate's institutional adjustment or conduct. Indeed, such collateral consequences are in direct contradiction to an inmate's demonstrated history of good behavior.

For example: An inmate has successfully demonstrated good conduct for many years, and has properly earned his way to lesser security status, and has received gradual reductions in the length of continuances at several Board hearings, and then he receives a "super flop", triggering a reclassification and transfer back to a higher security prison; not because of his bad behavior, but despite his good behavior.

It is not difficult to understand the sense of"outrage", "unfairness", "injustice", and "loss of hope" expressed by inmates who suffer (or who witness) such examples. Many inmates believe that the Board's new "get tougher" attitude is motivated by a need to placate" and "appease" Victim's Rights advocates, legislators and the general public. Inmates view the Board's "new posturing" as "mean spiritedness", "unfair", "unwarranted" and as "unjust resentencing". However, it is important to note that the record to date of the new Open Full Board Hearing process does not reflect a motivation or "posturing" of the Board to "placate" or to "appease" victims. Open Full Board Hearings are reserved for those cases involving the most serious kinds of offenses (rape, murders etc.). Victims (or their representatives) are afforded full opportunity to present their views to the Full Board. Of the eleven (11) Open Full Board Hearings conducted during the past year, nine (9) of those 11 inmates were granted parole.

CIIC staff view "super flops" as tantamount to resentencing a prisoner to a definite term of 10 (or 20 or 30 or 40) years beyond his statutory minimum sentence. The number of remaining prisoners sentenced prior to Senate Bill 2 is now fixed and ever decreasing. CIIC staff cannot understand why it is "unnecessary" or "unreasonable" or "burdensome" for the Board to schedule release hearings at least every five (5) years.

This new "super flop" attitude of the Board is believed by some, to have helped trigger one inmate's decision to escape from the Marion prison on February 4, 1997. He was housed at the prison Minimum Sccurity Camp and was scheduled to see the Board later that month. Some believe he was fearful of receiving a "super flop". In addition, Wardens have complained that these "super flops" have resulted in the reduction of "trusted" minimum 1 security inmates who are assigned to various Minimum Security Camps (located outside the main prison compounds) which are essential to prison operations. Under DRC security regulations, inmates who have more than five (5) years to their next Parole Board hearing are ineligible for minimum 1 level security status, regardless of how "trustworthy" his long-term behavior has been demonstrated to prison Security Reclassification staff. An inmate who has "earned" minimum 1 security status and who has safely worked at a Minimum Security Camp for several years, but who receives a flop of more than five (5) years, must be pulled from the Camp and reassigned to a position inside the prison compound. Wardens and prison staff are continually frustrated with not having enough minimum 1 level inmates to assist in the daily operations of the prison (farm workers, messengers, grounds keepers, Community Service projects, etc.). Without a sufficient number of minimum 1 inmates, prison budgets would have to be increased to hire civilian staff to perform the work of minimum 1 security level inmates.

EXCEPT FOR PERSONS SERVING LIFE SENTENCES, PAROLE BOARD CONTINUANCES SHOULD BE LIMITED TO FIVE (5) YEAR INCREMENTS. The Board should require itself to review an inmate's institutional adjustment and other release factors at least every five (5) years. Inmates had long considered a five (5) year flop as the maximum. Contrary to the view of some Board members, a five (5) year flop was viewed by prisoners as "harsh" and not one which raised much hope in the minds of inmates. A five (5) year maximum flop would only mean that the Parole Board should schedule a review hearing at least every five (5) years.

The current members of the Board should not "tie the hands" of future members of the Board by issuing "super flops". Board membership composition will change through the years. Attitudes of Board members may also change with the change in composition. The system is not made less safe by merely requiring the Board to take a fresh look at each inmate (except those serving life sentences) every five (5) years. The Board (and future Boards) will retain its discretion to flop an inmate for successive five (5) year terms, as warranted by each review.

Board members correctly cite the mental stress, emotional anxiety and painful memories that many victims must endure each time their assailant is scheduled for a parole hearing. By statute, victims must be notified of all parole eligibility hearings. The Board, understandably, feels that five (5) year intervals are "too frequent", "unnecessary" and "repeatedly traumatic to victims"; especially in those cases where the Board views "the serious nature of the offense" as warranting a continuance of 10 or more years beyond the minimum sentence imposed by the court. CIIC staff share the Board's sensitivity to victims' concerns. Certainly many victims suffer a renewed anguish each time their assailant is scheduled for possible parole. However, resorting to "super flops" is not the appropriate response to victim anguish. Current law states that the Board cannot grant a parole until the Board "has considered any statement made by a victim or a victim's representative that is relevant" to the prisoner's case and that was received by the Board pursuant to the statutory notice requirement. Victims should be reminded and reassured that their relevant concerns must (by law) be duly weighed and considered by the Board prior to granting any parole.

The Board's imposition of"super flops" is an inappropriate over-reaction prompted (in part) by a genuine empathy for the "renewed anguish" suffered by victims through successive parole eligibility hearing notifications. Statutory notifications are very disturbing to most victims. Such notifications raise the expectation that the victim's assailant possibly may be released. Thus, one supporting rationale for "super flops" is developed:

"Statutory notices cause rekindled grief and anxiety to victims. Being responsible for sending statutory notices to victims, the Board contributes" to the victim's rekindled grief and anxiety. The number or frequency of notices that must be sent to a particular victim is determined by the length of the continuance (flop) given at the prisoner's first parole hearing as compared to the length of time remaining to his maximum sentence. Thc Board controls the length of any continuance (flop). The longer the flop given to an assailant, the fewer the notices that the Board must send to that victim."

The Board, understandably, wishes to preempt (or relieve) itself from "contributing" in any way to a victim's renewed or rekindled anguish. Stretching-out parole eligibility hearings (at scheduled intervals of greater than 5 years) is simply an easy and convenient "exercise of unlimited discretion", albeit for a well intended and compassionate objective. However, the Board's exercise of discretion in this regard should be reasonably self-restrained, not undulv influenced by passion or prejudice, weighed and balanced on principles of fundamental fairness and substantive due process, and objectively structured to ensure "reasonable" time intervals for parole review hearings. A process of parole review hearings minimally scheduled at five (5) year intervals (with no pre-assurance that release will be granted at any interval) and which requires that victims statements must be solicited and considered, is not a process that is disparaging to the legitimate concerns of victims.

CIIC staff have implored the Board to "BEWARE THE METHOD AND MANNER IN WHICH YOU REMOVE HOPE FROM PRlSONERS." These "super flops" are creating a dangerous situation inside our prisons. The Board believes it is simply sending a stern, narrowly focused message to that particular prisoner in issuing a "super flop". We have urged the Board to recognize that their "super flop" practice is sending unintended collateral messages to the inmate population at large, with potentially troubling consequences to prison staff.

CIIC staff are encouraged that extensive, well focused discussions are continuing between DRC Central Office administrators, Adult Parole Authority officials, the Parole Board and various Wardens on wide-ranging issues related to "super flops". We remain hopeful that significant revisions and improvements will be made to enhance the credibility, soundness and fairness of parole decision-making.

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2. "THE SERIOUS NATURE OF THE OFFENSE": AS DEFINED & WEIGHED BY THE SENTENCING COURT vs. AS DEFINED & WEIGHED BY THE PAROLE BOARD

The Board now views five (5) year flops as "unrealistic" and "not truly meaningful". It argues that it is simply giving continuances which it feels are more accurate of the true length of time an inmate should serve, based on "the serious nature of the offense" for which he was convicted. Simply put, the Board has moved from a practice of ensuring that a prisoner is scheduled and reviewed (at least every five (5) years) for possible early release consideration, to a practice of pre-determining the actual term of incarceration which the current Board feels should be imposed on the prisoner, up to the maximum term imposed by the sentencing judge. Such "predeterminations" may extend to 40 years. The critical issue is the extent to which (if at all) this new attitude and practice of the Board may be tantamount to the Board substituting its notion of "serious nature of the offense" for that of the sentencing court. Many prisoners and others argue that the "serious nature of the offense" has already been considered, weighed and determined by the court at the time of sentencing.

Moreover, many argue that, under our pre-Senate Bill 2 indefinite sentencing structure, most sentencing judges have an expectation that the Board would release a prisoner at any time beyond his full minimum sentence, if in fact the prisoner has demonstrated good institutional adjustment. Thus, many judges had (have) the expectation that the most important factor for the Parole Board to consider was (is) the inmate's post conviction behavior and adjustment while in prison.

The Parole Board can and often does view the minimum sentence imposed by the court as simply not enough time to atone for the "serious nature of the offense", even though the prisoner has demonstrated productive participation in rehabilitative programming and has not shown any anti-personal/anti-social behavior. In its weighing of "seriousness", the Board is not limited to considering the specific offense for which the prisoner was convicted. Board members will state that they "look beyond the specific offense and even beyond the indictment" to consider all relevant factors which may have contributed to the offender's criminal conviction. Through plea bargaining an offender may have pled guilty to a lesser offense for which the judge is statutorily limited in imposing a sentence. The Board does not consider itself so limited in weighing the "serious nature of the offense" to only the specific offense for which the offender was convicted. The Board considers the "seriousness" of the offense as stated in the indictment as well as "non-evidentiary" hearsay statements which may be mentioned in an investigation report. Thus, the typical prisoner is properly viewed as someone who has in fact engaged in criminal conduct of a nature that is much worse than the specific offense for which he was sentenced. The "minimum sentence" imposed by the court is rarely viewed by the Board as a sufficient amount of time to serve based on the "true" (more comprehensive) seriousness of the offender's criminal conduct. A prisoner's "true" offense is often far greater and more serious than his "sentenced" offense. In setting an offender's minimum sentence, the sentencing judge is often viewed by the Board as being statutorily limited and constrained from imposing a sentence that is truly comparable to the total seriousness of the offender's conduct.

The issue of "seriousness" is made more confusing in those cases where a judge chooses not to impose the maximum minimum sentence on a plea bargained conviction.

For example: Pursuant to a plea bargain, a defendant is found guilty of a Felony 2 offense. The judge may set a minimum sentence of either 2, 3, 4, or 5 years and a maximum sentence of 15 years. The judge chooses to set a minimum sentence of 2 or 3 years (i.e. he chooses not to set the maximum minimum of 5 years). By not setting the maximum minimum, how can one (the Board) assume that the judge did not fully consider the "true" seriousness of the offense or that the judge was somehow "statutorily limited" in imposing a sentence more reflective of the "true" seriousness of the offender's conduct?

In denying parole to well-behaved, well-adjusted prisoners far beyond their minimum sentences, the Board views itself as an adminstrative safeguard against releasing prisoners who, in the Board's opinion, simply haven't done enough time based on the Board's broader definition of "seriousness of the offense". Many argue that the Board is simply "resentencing" the offender based on the Board's independent and much broader assessments of "seriousness" and "offense".

A survey of sentencing judges conducted by C.U.R.E. [Citizens United for Rehabilitation of Errants] in early 1996 revealed that only five percent (5%) of the eighty (80) survey respondents indicated that they expected the Parole Board to continue an inmate beyond his minimum sentence based on the severity of the crime or that they expected the offender to serve his maximum sentence. Fifty-two percent (52%) of the respondents expected an offender with an indefinite sentence to serve at least the minimum sentence, and then, if the offender has demonstrated positive institutional adjustment, the offender should be released.

It should be noted, however that the overwhelming number of written comments from sentencing judges regularly received by the Board show a "judical attitude and expectation" completely contrary to the results of the C.U.R.E survey. The responses (to the 21 day statutory notice requirement) frequently received by the Board reportedly reveal a prevailing judicial sentiment that is inconsistent with the views expressed by those judges who responded to the C.U.R.E survey.

There remains a wide divergence between the "expectations" of many sentencing judges and the actual practices of the Parole Board with regard to how much time a prisoner will (should) serve. Moreover, the Parole Board does not give significant weight to the fact that a prisoner has demonstrated good behavior while incarcerated. Prisoners are expected (not rewarded) to behave themselves and to take advantage of rehabilitative programming.

There is a continuing debate as to whether a judge, in setting the minimum sentence, was in fact considering the same level of "seriousness" of the offender's criminal "offense" (as broadly defined by the Parole Board) or whether the judge was statutorily limited to defining the "seriousness" of the offense solely as it relates to the specific offense for which the offender was convicted.

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3. THE ACTUAL TIME SERVED FOR PRISONERS SENTENCED PRIOR TO SENATE BILL 2 SHOULD BE SUBSTANTIALLY EQUIVALENT TO TIME SERVED FOR THOSE PRISONERS SENTENCED AFTER SENATE BILL 2.

The Parole Board should adjust its practices to ensure that inmates serving indefinite sentences (pre-Senate Bill 2) should not be required to serve significantly more time than inmates sentenced under Senate Bill 2. Because Senate Bill 2 was not made retroactive, Ohio's prison system is greatly challenged with operating a dual sentencing system. Fundamental fairness and concerns for prison safety demand that the Board adjust its current practice of "super flops" and become more mindful of ensuring a substantial equivalence of actual time served by inmates under our dual sentencing structure.

For example: An inmate sentenced prior to Senate Bill 2 may be serving an indefinte sentence of 3-15 years; whereas an inmate sentenced for the same offense after Senate Bill 2 may be serving a definite sentence of 5 years.

Just because the Board has the legal right and exclusive discretion to continue the pre-Senate Bill 2 inmate to an actual term up to his maximum 15 year sentence, it would be unfair, unjust and unwise for the Board to continue that inmate for a term of years substantially greater than the maximum term (5 years) for which he would have been sentenced had he committed that same offense after July 1996. The General Assembly has revised and adjusted the minimum and maximum penalty ranges for all felony convictions. [Senate Bill 2]. In the interest of fundamental fairness and prison safety, the Parole Board should revise and adjust its Continuance practice" to minimize any significant disparity in actual time served between inmates sentenced prior to pre-Senate Bill 2 and those sentenced after Senate Bill 2.

The Board's apparent disregard of this "disparity" issue is producing increasingly dangerous tensions among the pre-Senate Bill 2 prisoner population. The growing disparity in actual time served between inmates within our dual system is fueling potentially disruptive behavior and increased anger. Inmates perceive the Board's attitude and practices in this regard as "mean spirited", "unfair", "unjust" and simply as "the Board's resentment of the legislature's enactment of Sentate Bill 2", which effectively removed the Board from making early release decisions.

One guiding principle of parole decision-making should be: "To ensure a substantial equivalence of actual time served, based on the revised maximum penalties prescribed in Senate Bill 2."

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4. NON-RETROACTIVITY OF SENATE BILL 2

As originally introduced to the legislature by the Ohio Criminal Sentencing Commission, Senate Bill 2 had a retroactive provision that would have accelerated the parole hearings for "first time non-violent, non-dangerous offenders". This would have led to a strong possibility of many prisoners being released after having served a "substantially equivalent" term of incarceration. The General Assembly chose not to include the retroactive provision in the final enactment of Senate Bill 2. Contrary to the assertions of some, the Parole Board is not to blame for the decision to remove the retroactive provision. Despite what many believed to be an inherent fairness of such a provision, the prevailing sentiment among Ohio legislators at the time was that a retroactive application of the new sentencing scheme would be perceived (by the public and the media) merely as a mechanism for triggering the early release convicted felons in order to relieve prison crowding. It remains most difficult (if not politically unpalatable) to talk about "prisoners", "fairness" and "accelerated release" in the same sentence. In prisons, as in politics, perception is reality. Other state legislatures (Florida most recently) have come under strong public attack and criticism for passing legislation that resulted in the accelerated release of prisoners, despite the increased dangerous conditions caused by severe prison crowding. Unfortunately, the prevailing perception among most legislators is that a majority of the voting public strongly object to any "early release" mechanism as a response to prison crowding. "Build more prisons" is the perceived acceptable response to prison crowding. The critical issue remains: "How to change public perception, in order to change political decision-making, in order to produce a better prison system?"
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5. PAROLE GUIDELlNES

Parole Guidelines are merely an administrative tool, self-developed by the Board for "possible" guidance in its decision-making process. The Guidelines are not "law". They were not promulgated pursuant to any DRC Administrative Rule or Policy Statement, nor were they developed pursuant to any legislation. Parole Guidelines are merely "suggestive" to the Board. The Board can (and frequently does) "go outside" the Guidelines in making release decisions. An inmate has no rights with respect to the Guidelines because the Board has no legal obligation to follow them. The Board is free to continue a case for any length of time, regardless of the Guidelines. Furthermore, it may even do so based upon erroneous information.

Since 1984 CIIC staff have advocated that Parole Guidelines be either legislatively mandated or, at least, promulgated pursuant to DRC Administrative Rules. We believe that an early release guideline system can be developed which is legally enforceable and which properly balances the need for more structured discretion on the part of the Board with the need for greater "fairness" and "equity", without sacrificing legitimate and reasonable concerns for public safety. Since June 1996, the Adult Parole Authority has been engaged in well focused efforts to "revise" the current Parole Guidelines. CIIC staff is hopeful (if not optimistic) that their final product will be a substantial improvement over the current Guidelines system.

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6. EXCLUSIVE DISCRETIONARY AUTHORITY OF PAROLE BOARD

The case law is clear on the issue of Parolc Board authority, as cited by the Ohio Public Defender's Office in July 11, 1996:

The United States Supreme Court stated plainly that Ohio prisoners have no right to be released at any time before they "max out." In Jago v. van Curen, (1981) 454 U.S. 14, the court held: "Parole for Ohio prisoners lies wholly within the discretion of the Ohio Adult Parole Authority. The statutes which provide for parole do not create a protected liberty interest." See also Inmates of Orient Correctional Institution v. Ohio Adult Parole Authority (C.A. 6, 1991), 929 F.2nd 233 ["the law of Ohio gives a convicted person no legitimate claim of entitlement to parole before the expiration of a valid sentence of imprisonment"]. As these cases make clear, the Ohio Parole Boad has sole and exclusive authority to decide whether to release an inmate on parole. The Board may deny parole for any reason, and may continue any case as often as it deems appropriate, until the inmate serves the maximum term. Parole Board decisions are not appealable.

Until and unless current law is changed, Parole Board decisions are legal, lawful and legitimate, regardless of how "unfair", "unreasonable", "unwarranted", "unjust", "unprincipled" or "ridiculous" those decisions may seem to anyone. Any claim that a Parole Board decision is "arbitrary and capricious" bears an extraordinarily high legal standard of proof in order to prevail. We know of no case where a court has found the Ohio Parole Board to have "abused its discretion" in either denying or granting a parole. The Board's statutory authority and discretion remains very broad and exclusive.

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7. PAROLE BOARD MEMBERS AS "PROTECTED" CIVIL SERVANTS

One good thing about the current statutory scheme is that Parole Board members are "classified" employees of the State Civil Service System. They do not serve at the pleasure of the governor nor at the pleasure of the Director of DRC. The statute was deliberately (and smartly) structured to give Parole Board members "protection" and "insulation" from improper political influence or pressure. In fact, Board members will quickly inform anyone that the opinion of a particular legislator or any other elected official carries no greater influence in their decision-making process than the opinion of any other concerned citizen. This is as it should be. However, many have expressed serious concerns that the Board is being unduly influenced by the emerging political clout of "victims rights" advocates. The strong perception from prisoners and their loved ones is that the current Board has become "more conservative" and "more heavy handed with these 'super flops"' merely to appease the growing "victims rights" constituencies within the voting public. The issue is whether the current Board has lost sight of its "civil service/job protection status" and whether the Board is (for whatever reason) "afraid to offend victims groups". Many persons (though not CIIC staff) even argue that the Board allows "victim representatives" to effectively "veto" what would have otherwise been a favorable release decision. Those persons reasonably question why the Board apparently feels "protected" from one type of political constituency but not from another.

In all fairness to the Board, they continue to be in a "no-win situation", under the current statutory scheme. Board members are still "damned if they do" release a prisoner and "damned if they don't". The Board certainly continues to release many prisoners each year; just not at the higher percentage it did prior to 1993. Document Edited. To Be Completed Later.