Mimesis Law
29 May 2020

Blame The Notorious RBG Too For Mass Incarceration

Feb. 26, 2016 (Mimesis Law) — Ken Womble recently addressed the issue of the large state prison population:

However, these instances are primarily within the federal system, a system very much in need of reform, but a system that is only responsible for 10% of America’s world-leading prison population.

Currently, our embarrassing stats place our federal prison population at about 200,000. State prisoners on the other hand, 2 million.  200,000 human beings is far from insignificant.  But allowing our focus to remain on a law that impacts 10% of our problem shows just how bad we are at democracy.  We seem to love pointlessly shouting about problems almost as much as the people we keep voting for.


Dig into the inner workings of the criminal justice system and you will be exposed to a confluence of processes and procedures all geared toward sending busloads of (often minority) people off to prison cells. There are state laws that are absolutely unfair and contribute to the problem.  However, there are many, many more laws that, if followed properly, would turn our system good.  We just need local prosecutors and judges to follow them.

Womble touches on many issues here, such as more personalized sentencing, high bail, voter influence, and prosecutor and judicial behavior. But there is a nearly invisible cause that has contributed to the nearly 12% increase in Ohio’s prison population. It is due to the Supreme Court of the United States and Justice Ginsburg’s swing vote. And it was all done under the theory of protecting the defendant’s right to a jury trial.

In the Booker case, the Court determined that the federal sentencing guidelines were unconstitutional. The Court stated the following:

As it thus became clear that sentencing was no longer taking place in the tradition that Justice Breyer invokes, the Court was faced with the issue of preserving an ancient guarantee under a new set of circumstances. The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance.

In sum, under Booker, the Sixth Amendment requires that juries—rather than judges—determine all facts that increase the sentence. This resulted in the guidelines becoming merely advisory for federal judges. Contrary to states like Ohio, the overall impact on the federal system appears to be relatively minor.

In 1996, Ohio reformed its sentencing scheme, rejecting the gird-like system that the feds used and instead opting for sentencing principles. The basic aim of the system was to hold the line on the increasing prison population and largely did so by focusing on the length of stay. The three main mechanisms used to hold the line were presumptive minimum sentences, discouraging maximum sentences, and narrowing the circumstances under which consecutive sentences could be imposed.

And it worked, holding the state’s prison system relatively stable—until Booker came along. In response to Booker, the Supreme Court of Ohio struck down the key provisions of the sentencing reform act. Five years ago, the Department of Rehabilitation estimated that due to this case law the average length of stay increased by five months. Moreover, the imposition of the maximum term also increased once the limiting principles were removed. Even these small changes have resulted in 4,000 additional inmates since the ruling.

This dramatic increase was not due to the usual suspects, such as prosecutorial charging decisions, judges “getting tough on crime,” mandatory minimums, or the legislature responding to voters’ concerns. This increase was all due to five justices on the Supreme Court, or the Sixth Amendment, depending on how hard you squint when reading it. Because this precedent is rooted in federal constitutional law, states have limited ability to react to these changes.

In response to the decision, Ohio made other changes five years ago, including expanding intervention in lieu of conviction, allowing for GPS monitoring instead of prison time, reviving the presumption on concurrent sentences, and raising the felony theft threshold. But these changes have thus far failed to achieve the same result as the original reform. So, Ohio had a system that was holding prison population stable, but it cannot return to it thanks to the Supreme Court of the United States.

So, plea offers or charging decisions by prosecutors have not contributed to Ohio’s increase. You could blame the judges for imposing more time than before, but there is no reason to think that these increases are purposeful. Over the course of a year, the change in the average sentence by five months is likely imperceptible to most judges. For example, simply imposing the next to lowest sentence would easily account for the shift upward in the average.

If the impact of Booker has been this dramatic in Ohio, then it’s possible that other states have faced increases due to judicial decree. And those states have faced the same problem of how to work around the Sixth Amendment. This means the right to a jury trial has perversely contributed to mass incarceration.

Ohio’s relatively defendant-friendly provisions were struck down. In that light, the “win” for defendants under Booker has certainly been a net negative for Ohio inmates. So, it’s not accurate or fair to blame only prosecutors, state judges, and legislators exclusively for the two million state prisoners. Blame the Supreme Court too.

5 Comments on this post.

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  • John Pfaff
    26 February 2016 at 10:15 am - Reply

    A few comments.

    First, Foster was in response to Blakely far more than Booker. Since Booker is just an application of Blakely.

    This mattes, because if you’re going to blame the Supreme Court (more on that in a moment), you need to blame ALL FIVE who gave us Blakely, who also gave us Apprendi and Ring: not just RBG, but Scalia, Thomas, Stevens, and Souter. All deserve equal blame/credit.

    The only thing RBG deserves unique credit for is being the lone swing justice in Booker to vote for both the invalidation of the fed guidelines AND the bizarre reasonableness review of the remedy.

    But here’s the irony, then, of focusing on RBG: the Ohio State Supreme Court REJECTED the idea of reasonableness review, opting for full voluntary-ness. So the one thing that RBG is solely responsible for is the one thing the Ohio S Ct DIDN’T do.

    Second, between 1978 and 2006, Ohio’s prison population grew from 13,000 to 49,000, a 276% increase. From 2006 to 2014, it grew from 49,000 to 51,500. That’s 5%. So 98.2% of the increase in Ohio’s prison population took place before Foster.

    It’s hard to really say that SCOTUS “caused” mass incarceration. At least in Ohio, they at most allowed it to rise a bit more.

    And finally, this paragraph is deserves some attention:

    “This dramatic increase was not due to the usual suspects, such as prosecutorial charging decisions, judges “getting tough on crime,” mandatory minimums, or the legislature responding to voters’ concerns. This increase was all due to five justices on the Supreme Court, or the Sixth Amendment, depending on how hard you squint when reading it. Because this precedent is rooted in federal constitutional law, states have limited ability to react to these changes.”

    The lack of agency! The 5 justice were not imposing the individual sentences in Ohio. The ONLY way that time served went up is either prosecutors sought higher sentences or judges imposed them on their own. There’s no other way. You can’t blame SCOTUS because ADAs and judges didn’t exert self-restraint. “ALL DUE.” It’s a remarkable refusal to take responsibility.

    Don’t get me wrong: I’m a fan of (state, not federal) guidelines, and I think Blakely likely did more harm than good. There are very predictable reasons for why ADAs and judges will generally over-reach and over-punish, and guidelines were good at reining some of that in. And in throwing out guidelines for an abstract and not-entirely-necessary principle, the doctrinal wing of the Court did us few favors.

    But guidelines were necessary because of the inability of ADAs and judges to sentence better without rules in place. At the end of the day, responsibility still rests with them.

    Also, as for that “limited ability to respond,” I’d point out that Ohio was the ONLY state that responded to Blakely by going full voluntary, out of about 13 or so that were affected by it. Most kept their guidelines and just adopted jury fact-finding. So if, in fact, ADAs and judges in Ohio are incapable of adhering to voluntary guidelines, then blame lies with the Ohio legislature for not responding to Foster by adopting Minnesota-style guidelines.

    I’m no fan of SCOTUS’s Apprendi-Ring-Blakely cases, and I think RBG’s swing in Booker is simply incomprehensible. But this pushes far, far too much blame onto them.

    • Andrew King
      26 February 2016 at 2:14 pm - Reply

      Thanks for your comments.

      Certainly all the Justices that formed the majority of those cases bear responsibility. I called out Justice Ginsburg because she’s the most senior and most influential of that block still left on the court, and her flip in Booker caused a great deal of confusion. The Foster court relied heavily on Booker’s severance remedy for which she was almost solely responsible. And Foster being the product of Booker leads me back to Justice Ginsburg.

      While it is entirely possible I made a calculation error, I used the numbers from the Sentencing Commission’s report. The Commission’s conclusion was that the prison population was stable in the ten years prior to Foster and then increased after. That report is five years old, but based on the current numbers, it appears to me to still be reliable.

      That report blamed the subsequent five year increase of prion population on Foster, which was a response to Booker, and it reflects the conventional wisdom of the state bar and the legislators. If there is something wrong in the way the Sentencing Commission handled its data, then maybe that conclusion would be pushing too far and the conventional wisdom would be wrong. As it stands, I disagree.

      As far as Booker not having a similar impact in other states, I looked for any papers discussing retrospectively with some data and did not find one. If Ohio is the lone outlier in seeing such an increase, then I would certainly concede that the increase downstream from Booker is relatively minor.

      Because of the way Ohio wrote the statutes at issue, I believed it was the mostly right conclusion at the time. Now, with the change in the composition of the Court, could Ohio go back, carefully re-write those statutes, and avoid a Blakely problem, quite probably. The Supreme Court of Ohio certainly out kicked its coverage on the issue of applying Blakely to consecutive sentences, which I had believed was a mistake Foster.

      And we may well be approaching the time when there is political will to undertake sentencing reform anew. Ohio is probably tapped out privatizing, and DRC is constantly looking for ways to reduce its population and avoid building more prisons. And I would not be opposed to re-working the pre-Foster scheme.

  • Ken Womble
    26 February 2016 at 10:32 am - Reply

    The Ohio Supreme Court’s ruling in Foster could be seen as somewhat suspect in its interpretation of Blakely/Apprendi/Booker. Regardless, the US Supreme Court’s decision in each of those three cases was complex and close, but arguably correct. Those rulings held that statutory increases in sentences (like to increase the sentencing range because the judge, not the jury, found that the crime was racially motivated) were a violation of the 6th Amendment. Even after the Ohio court decided to strike SB 2, nothing has stopped the Ohio legislature from fashioning new legislation that accomplished the same thing but complied with Foster.

    Blaming RBG appears to be a bit of butterfly effect and definitely seems to be against the spirit of the Court’s ruling that was against increased sentences.

    • Andrew King
      26 February 2016 at 2:16 pm - Reply

      Some of the folks at the Sentencing Commission felt the way you did. Given the language of the statutes and the way the Apprendi line appeared to be developing, it looked like the right decision. As I mentioned above, it’s probably much easier for the legislature to “fix” the Blakely problem now than it looked ten years ago.

      • Jeff Gamso
        26 February 2016 at 10:36 pm - Reply

        I guess I’ll weigh in here, since I have the dual qualifications of (1) writing for Fault Lines and (2) having been amicus counsel and heavily involved in how Foster was presented to the Supreme Court.

        Frankly, the problem with Foster wasn’t Booker (though we were concerned about what seemed fairly clear – that the court would “Bookerize” our sentencing scheme).

        To understand what happened, it’s necessary first to understand the ostensible goals of felony sentencing reform advocated by the Sentencing Commission and adopted with significant modification by the General Assembly in S.B. 2 in 1996. The goals were to avoid gross disparities in sentencing from judge to judge and from one part of Ohio to another and to provide truth in sentencing. The latter was effected by doing away with most indefinite sentences and with good time. Post SB 2, the sentence the judge imposed was to be (in almost all cases) a specific term. And the defendant would serve that long.

        The first part, something like consistency, was to be achieved by setting forth some presumptions and then requiring judges to find facts in order to overcome the presumptions. Maximum sentence? Find the facts that supported it. Consecutive sentence? Find the fact. Prison for low level felony? Fact, please. (They worked the other way, too, so that certain downward departures from presumptions also required fact-finding.)

        But, and this is key, S.B. 2 also incorporated a mechanism to achieve consistency. For the first time, it set up a scheme allowing meaningful appellate review of sentences. Did the facts as found support the sentence imposed? And was the sentence actually consistent with sentences imposed on similar defendants for similar offenses?

        In Foster, the court looked at S.B. 2 and determined that the legislature’s goal in S.B. 2 wasn’t really to reduce disparity. When it eliminated judicial fact finding (which Blakely pretty much required), the court also effectively wrote out of the law any effort to achieve consistency – in particular, the court effectively ended the 10-year experiment in somewhat meaningful appellate review of sentences. In the years since then, it’s gone further.

        The effect is that now judges are requires to consider the “principles and purposes” of sentencing, but that requirement is satisfied by saying they did and, even, by saying nothing (since it’s presumed that they did). And consistency in sentencing is now determined for the most part by whether the sentence falls within the statutory sentencing range. Thus, for instance, appellate courts routinely hold that since a first degree felony can draw a sentence of from 3 to 11 years, every sentence for every first degree felony is consistent with the sentence imposed on similar offenders for similar offenses as long as it’s between 3 and 11 years.

        You can blame Booker for many things. You can’t blame it for the court wiping out any meaningful appellate review of sentences. That was the Ohio Supreme Court.