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When is a Challenge to The Regan Tokes Law Ripe for Decision?

As I discussed in a prior post, the Regan Tokes Law adds an indeterminate, discretionary sentence to the minimum sentence for first- and second-degree felonies. Many defendants sentenced under this law have argued that the law unconstitutionally violates the separation of powers doctrine, by giving the department of corrections, rather than a court of law, discretion to determine how much, if any, of the indefinite sentence a defendant will serve. So far, no appellate court has found the law unconstitutional. Courts have split, however, on the issue of whether the issue is even ripe for decision at the time of sentencing.

The doctrine of ripeness states that a court should not address a merely hypothetical problem which will not definitely occur. Or, in the words of the Supreme Court of Ohio, “judicial machinery should be conserved for problems which are real or present and imminent, not squandered on problems which are abstract or hypothetical or remote.”

The Fifth District Court of Appeals recently considered the ripeness of a challenge to the Regan Tokes Law in State v. Cochrane. The court found it was premature to consider the constitutionality of the law. The court reasoned that because the defendant might be released at the end of his minimum sentence, without serving any of the indefinite sentence period, the harm allegedly caused to him by the Regan Tokes Law was merely speculative. The court therefore declined to consider the defendant’s challenge to the law’s constitutionality.

Judge Gwinn wrote a lengthy dissent, arguing that the issue was ripe, and the court should have determined it. Gwinn pointed out that every offender convicted of a first- or second-degree felony in Ohio is subject to Regan Tokes, and it is therefore inevitable that many people will ultimately be subjected to an indefinite sentence under the law. The mere fact that some length of time may pass before this happens is not, the dissent reasoned, a good enough reason to postpone determining the issue. Gwinn noted the practical difficulties that could arise from delaying a decision on the constitutionality of the law:

“If, for example, the appellant must wait for three years for the DRC to extend his sentence, both the inmate and the courts will face a myriad of legal hurdles. First, how will the inmate inform the court of his or her desire to appeal the constitutionally of the law? Next, is the inmate entitled to appointed counsel to pursue such an appeal? If the inmate is not, then an incarcerated inmate with limited legal resources and acumen will have to cobble together a highly involved constitutional argument without the assistance of counsel and with extremely limited access to legal resources. It will also become evident that the DRC decision extending the inmate’s sentence is not part of the trial court record. In order to establish that the inmate’s sentence was in fact extended, will the trial court be required to order the DRC to file its decision with the clerk of courts for inclusion in the trial and appellate court records? Further, the inmate will necessarily have to await the trial court decision on the constitutionality of the law, the court of appeals decision and eventually the decision of the Ohio Supreme Court, a process that can take years. In the event that the inmate gains his or her release before then, the issue will no doubt be declared moot. Additionally, if the law is declared unconstitutional years from now, courts will be inundated with writs of habeas corpus, motions and other request for release or resentencing from the hundreds of inmates who were sentenced under the law and not permitted to appeal the constitutionality of the law in the inmates direct appeal. Finally, the inmate will have been incarcerated perhaps years beyond his release date for the time it takes to decide the issue in the event the law is found to be unconstitutional.”

The Second, Third, and Twelfth district Courts of Appeals have all addressed this issue directly, and found the law constitutional, implicitly finding that the issue was ripe for review. Additionally, the Sixth District Court of Appeals recently found that the issue was not ripe, but recognized the conflict of its decision with those from the Second, Third, and Twelfth districts, and certified the conflict to the Ohio Supreme Court. Because this certification is limited to the issue of ripeness, the Supreme Court is not expected to resolve the underlying question of the law’s constitutionality just yet.