Hamilton County judge: Reagan Tokes Act is unconstitutional, disregards 'a judge's power'

Kevin Grasha | Cincinnati Enquirer

A Hamilton County judge has ruled that provisions of a law enacted this year, which allows the state parole board to extend prison sentences in serious felony cases – without a judge’s input – are unconstitutional.

Common Pleas Judge Tom Heekin’s decision was filed Nov. 20 in a felonious assault case. It could upend a law that is a second attempt by the legislature in recent years to allow the Ohio Department of Rehabilitation and Correction to keep an offender in prison based on misconduct during incarceration.

Heekin said provisions of what is known as the Reagan Tokes Act violate the separation of powers doctrine and also deprive an offender of adequate due process.

“A statute may not disregard a judge’s power and experience by allowing an executive agency to indirectly supersede the powers of the judicial branch,” Heekin wrote in a nine-page decision.

Judges hold that power, he said, because they “possess the necessary judicial discretion unrelated to moral or retributive judgments.”

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A previous law, enacted in the 1990s, which allowed a prisoner’s sentence to be increased based on violations committed in prison, was ultimately struck down by the Ohio Supreme Court.

Heekin said the high court held that the previous law, known as the “Bad Time” statute, improperly ceded authority to the executive branch and was a violation of separation of powers.

The new law, enacted March 22, impacts first- and second-degree felonies that don’t carry life sentences, such as armed robbery, felonious assault and abduction.

It allows the state parole board to either reduce the offender’s minimum term for good conduct or keep the offender in prison up to the maximum term for “violations of law” as well as prison rule infractions. Judges set sentence ranges (like three to eight years) that dictate when an offender can be eligible for parole.

Heekin said it leaves parole board with “unfettered discretion to consider minor infractions" when deciding whether to keep someone in prison.

A spokeswoman for the Hamilton County Prosecutor’s Office said they expect to appeal Heekin’s decision.

The issue could be headed to the Ohio Supreme Court.

Other judges in the state have the same concerns as Heekin, said Doug Berman, a professor at Ohio State University’s Moritz College of Law who studies sentencing issues.

“I suspect this ruling is not going to be the only one that draws on those concerns,” Berman said.

He said a ruling by the state Supreme Court “striking down the guts of Reagan Tokes would be a much more consequential push-back to one of the most significant sentencing reforms passed in Ohio, in a long time.”

The Reagan Tokes Act was named for an Ohio State University senior who was abducted, sexually assaulted, and fatally shot in 2017 by a man recently released on parole from state prison.