Ohio2006 Blog

News, analysis, and comments on Ohio elections.

Saturday, September 30

OH-14 & Sec State: Katz (D) Debunks 'Lenient Sentencing' Charge Against Brunner (D)

Identity theft is an issue in the Secretary of State race because incumbent Ken Blackwell (R-Cincinnati) allowed thousands of social security numbers to go out on the official web site for commercial filings. Jennifer Brunner (D-Columbus) connected this issue to opponent Greg Hartmann (R-Cincinnati) by highlighting a similar disclosure of identifying information through the Hamilton County Clerk's web site, resulting in a civil class action against Hartmann and a federal indictment for individuals who data mined on the site for identity theft purposes.

Hartmann has now sought to turn the tables by putting forward a list of 20 cases in which Hartmann says Brunner, while a Court of Common Pleas Judge, rendered supposedly lenient sentences by imposing community control sanctions (probation) instead of incarceration for crimes involving false identity. Most of the cases involve check or credit card forgery rather than computer-linked identity theft. All of them are fourth and fifth degree felonies, and most of them involved plea bargaining. Hartmann insists that the final sentencing decision nevertheless rests with the judge and that these cases should have resulted in more severe punishment.

Law professor Lewis Katz (D-Chesterland), running against Rep. Steve Latourette (R-Painesville) in the 14th Congressional District, has now come to Brunner's defense on the sentencing charge. Katz is perhaps the leading authority on criminal law and procedure in Ohio. He is the co-author of leading treatises on criminal law in general (Baldwin's Ohio Practice: Criminal Law) and sentencing in particular (Ohio Felony Sentencing Law), as well as a seminal scholarly article on sentencing (Sentencing Consistency: Basic Principles Instead of Numerical Grids: The Ohio Plan, 53 Case W. Res. L. Rev. 1 (2002)).

I spoke to Katz on the telephone yesterday. Bottom line, it is unreasonable and unfair to criticize a judge for not imposing incarceration as punishment for fourth and fifth degree felonies because the sentencing statute mandates community control sanctions for those crimes unless particular contra-indications are found. "You’d have to know the facts of the particular cases," Katz said. "For example, whether the defendant is a repeat offender. You can’t make general charges [about lenient sentencing] later.”

Katz also explained that by imposing community control sanctions, Brunner “may have sent them to jail, just not to prison. Community control sanctions include local jail time as a possibility. What she didn’t do is send them to the penitentiary.”

“Sentencing reform legislation was focused on sending violent felons and high degree felons to prison, and trying to send fourth and fifth degree felons to community control, which includes jail and workhouses and work release programs as possibilities," Katz continued. "The purpose was to save money and to make room in the prisons for first and second degree felons.” When I pointed out that most of the cases involved plea bargains and Hartmann contends that the final decision still rests with the judge, Katz said “that’s true, the final decision rests with the court, but judges generally accept the recommended sentence for lower level felonies because it is agreed between the prosecutor and the defense.” He also said he believes that all cases involving “community control sanctions require a pre-sentencing report.”

Identity theft is an issue in the 14th District Congressional race as well. LaTourette sponsored a terrible, special interest-pandering bill called HR 3997, the Financial Data Protection Act, that would pre-empt state laws on identity theft and have the effect of making it impossible for consumers to freeze their credit without first obtaining a police report. According to Katz, LaTourette says "I’ve learned that now” (i.e., that the federal law is flawed), but consumer groups had complained about this aspect of the bill while it was still in committee. It wasn’t until the bill was passed out of committee and people in the media called LaTourette on it, including consumer finance guru Suze Orman, that LaTourette acknowledged the problem. Katz doesn’t know for sure if LaTourette has changed his position on the law. As far as Katz knows the bill is still pending and could be acted upon when the Congress returns in November.