Secty of State: Hartmann (R) and Brunner (D) Trade Barbs in Toledo Blade

There is a good recap in the Toledo Blade today of the exchange of charges about identity theft in the race for Secretary of State. This became a hot topic when it was revealed earlier this year that social security numbers were disclosed in commerical filings on the Secretary of State's official web site, resulting in a class action lawsuit against Ken Blackwell (R-Cincinnati). Jennifer Brunner (D-Columbus) has made a campaign issue of pointing to a similar situation on the offical site maintained by her opponent, County Clerk Greg Hartmann (R-Cincinnati). That site also revealed social security numbers and other private information about Ohioans in court filings accessible through the site, resulting in a similar class action against Hartmann, and certain individuals were indicted on federal identify theft charges after mining personal data from the site.

In response, Hartmann has begun attacking Brunner for sentencing particular defendants to probation rather than jail for crimes that Hartmann says involved stealing identities. Aside from the usual unfairness of criticizing a judge for just a few of the many thousands of rulings that she made, there are at least three major flaws to Hartmann's accusation.

First, most of the crimes involved were not identity theft as occurred in connection with Hartmann's county clerk site, but forgery relating to checks or credit cards. The rationale for relating these particular sentences to the web site identity theft situation is very weak, at best.

Second, criminal sentencing is controlled by a comprehensive statutory scheme. The cases Hartmann cites are all fourth and fifth degree felonies where the statutory presumption mandates probation over incarceration, unless certain listed factors are specifically found. In effect, Hartmann is criticizing Brunner for following the law.

Finally, as Brunner points out in today's article, most of the sentences involved resulted from plea bargains, where the prosecutor expressly approved the sentence Brunner handed down. Hartmann and an ally, Hamilton County Sheriff Simon Leis, assured the Toledo Blade reporter that the final decision on sentencing still belongs to the judge. This is technically true but very misleading. Our overburdened criminal justice system relies heavily on plea bargaining to dispose of the vast majority of cases on the criminal docket. If judges departed from recommended sentences in any but the most exceptional situations the whole system would collapse. Brunner was just following the law and doing her job right.

UPDATE: More on Hartmann's accusation and Brunner's response in the Akron Beacon Journal here. Hartmann insists that prison time was warranted in each of his 20 listed cases, all fourth and fifth degree felonies, which he really can't say without proof of specific factual circumstances to overcome the statutory prepresumption against jail. Brunner handled over 6,000 cases as a judge, so Hartmann's list is less than 0.03% of her caseload. She explains the use of sentencing investigations to back up sentencing recommendations resulting from plea bargains.