State v. Edwards , 2022 Ohio 3408 ( 2022 )

[Cite as State v. Edwards, 2022-Ohio-3408.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200101
TRIAL NO. B-1903327
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
JAMES EDWARDS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 28, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, Paula Adams, Assistant
Prosecuting Attorney, and Adam Tieger, Assistant Prosecuting Attorney, for
Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant James Edwards appeals the judgment of the
Hamilton County Court of Common Pleas sentencing him to an indefinite sentence
after he pled guilty to burglary, having weapons while under disability, and theft. In
his sole assignment of error, Edwards argues that the trial court erred as a matter of
law in sentencing him pursuant to the indefinite-sentencing scheme established under
2018 Am.Sub.S.B. 201, identified under R.C. 2901.011 as the Reagan Tokes Law,
because the law is facially unconstitutional under the Ohio and United States
Constitutions. Edwards challenges the constitutionality of the Reagan Tokes Law as
violative of the separation-of-powers doctrine, his substantive- and procedural-due-
process rights, and his right to equal protection of the law.
{¶2} Because we recently held that the indefinite-sentencing scheme set forth
in the Reagan Tokes Law is facially constitutional, see State v. Guyton, 1st Dist.
Hamilton No. C-190657, 2022-Ohio-2962, ¶ 69, we overrule the assignment of error
and affirm the trial court’s judgment.
I. Facts and Procedure
{¶3} In June 2019, a grand jury returned a five-count indictment against
Edwards, charging (1) burglary, in violation of R.C. 2911.12(A)(2), a second-degree
felony; (2) theft, in violation of R.C. 2913.02(A)(1), a third-degree felony; (3) having
weapons while under disability (“WUD”), in violation of R.C. 2923.13(A)(2), a third-
degree felony; (4) theft, in violation of 2913.02(A)(1), a fourth-degree felony; and (5)
forgery, in violation of R.C. 2913.31(A)(3), a fifth-degree felony. Edwards pled guilty
to the burglary, WUD, and fourth-degree theft counts in exchange for dismissal of the
third-degree theft and forgery counts.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} The Reagan Tokes Law restored indefinite sentencing in Ohio for non-
life-sentence felony offenses of the first or second degree committed on or after March
22, 2019. Guyton at ¶ 11, citing State v. Maddox, Slip Opinion No. 2022-Ohio-764, ¶ 4,
and State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, ¶ 1 (8th Dist.). Pursuant to the
Reagan Tokes Law, the trial court sentenced Edwards to an indefinite term of
incarceration of four to six years on the burglary count. Additionally, the trial court
sentenced Edwards to a consecutive two-year term for the WUD count and a
concurrent 18-month term on the theft count. Edwards timely appealed.
{¶5} In his assignment of error, Edwards challenges the constitutionality of
the Reagan Tokes Law. Edwards argues first that the Reagan Tokes Law impermissibly
delegates judicial power to the executive branch in a violation of the separation-of-
powers doctrine by permitting the Ohio Department of Rehabilitation and Correction
(“ODRC”) to extend an inmate’s term of incarceration beyond the sentence imposed
by the sentencing court. Second, Edwards argues that the Reagan Tokes Law violates
his right to substantive due process by depriving him of a fundamental liberty interest,
the right to be free from illegal bodily restraint, without due process when the ODRC
extends an inmate’s sentence. Edwards argues next that the Reagan Tokes law violates
his right to procedural due process by failing to provide notice to the inmate and a
meaningful and appropriate hearing before imposing an extended term of
incarceration. Finally, Edwards contends that the Reagan Tokes Law violates his right
to equal protection of the laws by permitting the state to treat inmates convicted of
first- or second-degree felonies differently from those convicted of third-, fourth-, or
fifth-degree felonies.
3
OHIO FIRST DISTRICT COURT OF APPEALS
II. The Reagan Tokes Law
{¶6} The indefinite terms established under the Reagan Tokes Law consist of
a minimum term set by the sentencing court based on the statutory range, see R.C.
2929.14(A)(1)(a), and a maximum term computed by formulas provided in R.C.
2929.144. The maximum term is generally an additional 50 percent added to the
minimum term. See R.C. 2929.144; Guyton, 1st Dist. Hamilton No. C-190657,
2022-Ohio-2962, at ¶ 12.
{¶7} Under the Reagan Tokes Law, an offender is presumed to be released at
the end of the minimum term. R.C. 2967.271(B). However, ODRC may rebut that
presumption by holding a hearing and finding that one or more statutory factors
applies. R.C. 2967.271(C). These factors generally require that the offender committed
rule infractions that involved compromising the security of the correctional institution
or the offender jeopardized the safety of others while incarcerated. See R.C.
2967.271(C)(1)-(3). If ODRC finds the presence of these factors after a hearing, the
offender may continue to be held up to the maximum term imposed by the trial court.
R.C. 2967.271(D)(1). In any event, the offender shall be released at the expiration of
the maximum term imposed by the trial court. R.C. 2967.271(D)(2).
III. Ripeness
{¶8} This appeal was stayed pending the Ohio Supreme Court’s decision in
State v. Maddox. In Maddox, the Ohio Supreme Court held that a facial challenge to
the Reagan Tokes Law is ripe for review on direct appeal of a defendant’s conviction
and prison sentence. See Maddox, Slip Opinion No. 2022-Ohio-764, at ¶ 11 and 21;
Guyton at ¶ 10. Thus, Edwards’s challenge is ripe for review, even though he may later
bring an as-applied challenge to the law based on future factual development.
4
OHIO FIRST DISTRICT COURT OF APPEALS
IV. The Reagan Tokes Law is Facially Constitutional
{¶9} Edwards challenges the constitutionality of the Reagan Tokes Law
based on the separation-of-powers doctrine, substantive and procedural due process,
and equal-protection principles. As we recently held in Guyton, the statute is facially
constitutional on these bases. We address each in turn.
A. Separation of Powers
{¶10} Edwards argues that the Reagan Tokes Law is facially unconstitutional
because it violates the separation-of-powers doctrine. Edwards urges this court to
follow State ex rel. Bray v. Russel, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000), which
struck down Ohio’s prior “bad-time” statute, the former R.C. 2967.11. Under the “bad-
time” statute, the Ohio Parole Board, an executive branch agency, was permitted to
extend the sentence of an offender based on the offender’s conduct while incarcerated.
Because the “bad-time” statute permitted the Ohio Parole Board to increase the
offender’s sentence without involvement from the judicial branch, the Ohio Supreme
Court held the statute invalid as a violation of the separation-of-powers doctrine. Bray
at 136.
{¶11} We recently decided this issue in Guyton, 1st Dist. Hamilton No.
C-190657, 2022-Ohio-2962, at ¶ 28. Unlike the prior “bad-time” statute, which
allowed the parole board to extend the offender’s judicially-imposed sentence
unilaterally, id. at ¶ 25, the Reagan Tokes Law creates an “indefinite sentencing
structure [that] requires the trial court to impose both a minimum and maximum
prison term at sentencing and include that sentence in the final judgment of
conviction.” Id. at ¶ 23. Under this structure, the trial court, not ODRC, imposes the
maximum sentence. Id.; State v. Eaton, 6th Dist. Lucas No. L-21-1121,
5
OHIO FIRST DISTRICT COURT OF APPEALS
2022-Ohio-2432, ¶ 59. As in other parole and postrelease-control schemes, the
authority of the executive branch is only to determine which portion of the offender’s
sentence, up to the judicially-imposed maximum, is actually served. Eaton at ¶ 59. On
this basis, we held in Guyton that the Reagan Tokes Law does not violate the
separation-of-powers doctrine. Guyton at ¶ 28.
B. Substantive Due Process
{¶12} Edwards next argues that the Reagan Tokes Law deprives him of his
right to substantive due process, which protects a person’s fundamental liberty
interest in freedom from illegal bodily restraint. Edwards contends that the Reagan
Tokes Law permits ODRC to detain an offender beyond the term of the judicially-
imposed sentence, thereby depriving the offender of a protected liberty interest
without the required safeguards provided at trial.
{¶13} As we previously held in Guyton, this argument misconstrues the nature
of the indefinite-sentencing scheme under the Reagan Tokes Law. Guyton at ¶ 34. It
is the trial court, not the ODRC, that establishes the range of time during which the
offender is subject to incarceration. Id. The ODRC has no authority under the Reagan
Tokes Law to extend the offender’s term beyond the maximum end of the range
imposed by the sentencing court. Id. The Reagan Tokes Law does not offend
substantive due process on this basis.
C. Procedural Due Process
{¶14} Edwards next argues that the Reagan Tokes Law violates the
constitutional guarantee of procedural due process. Core to the requirements of
procedural due process are notice and a meaningful opportunity to be heard. Mathews
v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Edwards points out
6
OHIO FIRST DISTRICT COURT OF APPEALS
that the statutory text fails to provide parameters of or a procedure for the hearing
required under R.C. 2967.271(C) and (D). Similarly, although R.C. 2967.271(E) directs
notice to be provided to a litany of adverse parties, no similar provision is made for
notice to the offender. On this basis, Edwards contends that the statute is
unconstitutional on its face.
{¶15} In a due-process analysis, we must first determine whether a protected
liberty interest exists, and if so, we then consider what process is due. Eaton, 6th Dist.
Lucas No. L-21-1121, 2022-Ohio-2432, at ¶ 59, citing Morrisey v. Brewer, 408 U.S.
471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Generally, there is no protected interest in
an early release from confinement following a valid criminal conviction. Guyton, 1st
Dist. Hamilton No. C-190657, 2022-Ohio-2962, at ¶ 39. However, the presumption
created under the Reagan Tokes Law that an offender will be released following the
minimum term of incarceration “create[s] a right to early release for the prisoners
unless the ODRC after a hearing makes specific determinations that are based on
misconduct.” Id. at ¶ 42. As a result, we held that due-process protections are required
when ODRC seeks to continue an offender’s incarceration beyond the minimum term.
Id.
{¶16} As we noted in Guyton, “[a] statute directing an administrative action
that affects the deprivation of a liberty interest must be read as one with the
constitutional concept of due process, unless the express terms of the statute preclude
such a reading.” Guyton at ¶ 44, citing Am. Power & Light Co. v. SEC, 329 U.S. 90,
107-108, 67 S.Ct. 133, 91 L.Ed. 103 (1946), The Japanese Immigrant Case, 189 U.S.
86, 100-101, 23 S.Ct. 611, 47 L.Ed. 721 (1903), and Indus. Acc. Bd. v. O’Dowd, 157 Tex.
432, 436, 303 S.W.2d 763 (1957). The Reagan Tokes Law specifically requires a
7
OHIO FIRST DISTRICT COURT OF APPEALS
hearing before continuing the offender’s incarceration past the minimum term. R.C.
2967.271(C); Guyton at ¶ 57. And nothing about the statute precludes notice from
being provided to the offender. R.C. 2967.271; Guyton at ¶ 57. While the Reagan Tokes
Law does not explicitly require notice to the offender, nor does it outline the precise
procedure for the ODRC hearing, we held in Guyton that “we must presume that the
ODRC will fill in the ‘gaps’ to execute the law such that offenders are afforded due
process before depriving an offender of the statutory liberty interest created by the
Reagan Tokes Law.” Guyton at ¶ 55. Accordingly, Edwards has not overcome the high
burden to show that the statute is facially unconstitutional “since a set of
circumstances exists under which the statute satisfies due process.” See Guyton at
¶ 57.
D. Equal Protection
{¶17} Finally, Edwards argues that the Reagan Tokes Law denies equal
protection of the law, as guaranteed by the Ohio and United States Constitutions, to
himself and others within the ambit of the statute. Edwards correctly points out that
the Reagan Tokes Law provides for differentiated treatment of first- and second-
degree-felony offenders from those convicted of third-, fourth-, and fifth-degree
felonies. Edwards claims that this distinction is impermissible because those convicted
of more serious felonies are deprived of fundamental constitutional protections when
facing an extension of their prison terms, while those protections are not withheld
from those convicted of lower-degree felonies.
{¶18} We rejected this argument in Guyton, 1st Dist. Hamilton No. C-190657,
2022-Ohio-2962, at ¶ 68. In a traditional equal-protection analysis, disparate
treatment is permissible if the class distinctions are rationally related to a legitimate
8
OHIO FIRST DISTRICT COURT OF APPEALS
governmental interest. Id. at 60, citing State ex rel. Vana v. Maple Hts. City Council,
54 Ohio St.3d 91, 92, 561 N.E.2d 909 (1990). However, if a suspect classification is
used or the right implicated is a fundamental right, then a higher degree of scrutiny
will apply. Id. at ¶ 60. Edwards makes no claim that higher-degree felony offenders
are a suspect class. Although Edwards claims deprivation of many fundamental rights,
we held in Guyton that those rights were inapplicable in ODRC’s proceedings under
the Reagan Tokes Law, which differ substantially from criminal prosecutions. Guyton
at ¶ 64. Thus, the Reagan Tokes Law cannot be said to burden a fundamental right.
Guyton at ¶ 64. We therefore apply rational-basis analysis.
{¶19} As we held in Guyton, Edwards’s equal-protection claim against the
Reagan Tokes Law fails under a rational-basis review. See Guyton at ¶ 68. The
legislature has ample reason to provide disparate treatment for higher-degree felony
offenders apart from lower-degree offenders. Guyton at ¶ 68. “The legislature’s focus
on Ohio’s most serious felony offenders is not surprising considering the significant
resources that are required to administer the indeterminate sentencing scheme.”
Guyton at ¶ 68. The state has ample interest in applying a sentencing model that
strikes a balance between protecting the public against recidivism and promoting
rehabilitation. Guyton at ¶ 66-68. Because the Reagan Tokes Law withstands rational-
basis review, Edwards’s facial challenge to its constitutionality on equal-protection
grounds fails.
V. Conclusion
{¶20} Edwards has failed to show that the Reagan Tokes Law is facially
unconstitutional on the bases of separation of powers, substantive and procedural due
process, and equal protection of the law. In light of the foregoing analysis and this
9
OHIO FIRST DISTRICT COURT OF APPEALS
court’s prior decision in Guyton, we overrule Edwards’s assignment of error and affirm
the judgment of the trial court.
Judgment affirmed.
BOCK, J., concurs separately.
ZAYAS, P.J., concurs in part and dissents in part.
BOCK, J., concurring separately.
{¶21} I agree with the majority opinion that the Reagan Tokes Law is not
facially unconstitutional under separation-of-powers, equal-protection, and
substantive-due-process grounds. And I will follow this court’s precedent in State v.
Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, by concurring with the
majority opinion.
{¶22} But I agree with Judge Bergeron’s thoughtful dissent in Guyton and, but
for this court’s precedent, would have held that the liberty interest implicated by an
incarcerated person’s presumptive release date is closer to a parole-revocation
hearing, requiring the protections established under Morrissey v. Brewer, 408 U.S.
471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Guyton at ¶ 68 (Bergeron, J., dissenting).
And, like Judge Bergeron, I believe that the additional-term hearing procedures under
the Reagan Tokes Law contravene fundamental requirements of procedural due
process. Id. at ¶ 88-96 (Bergeron, J., dissenting). Particularly, I believe the notice and
hearing provisions in R.C. 2967.271 are deficient, rendering the statute
unconstitutional on its face.
{¶23} I write separately to express my concerns over the disproportionate
impact that the Reagan Tokes Law could have on women and minorities. Admittedly,
a law described as an incentive-laden plan that centers around rehabilitation would
not ordinarily raise concerns about fairness in prison discipline. After all, who does
10
OHIO FIRST DISTRICT COURT OF APPEALS
not favor a sentencing scheme that “empowers [incarcerated people]?” And conferring
authority to an executive agency in sentencing review is nothing new—“ ‘the executive
branch’s review has been a mainstay of Ohio law since time immemorial.’ ” Guyton,
1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, at ¶ 28, quoting State v. Delvallie,
2022-Ohio-470, 185 N.E.3d 536, ¶ 15 (8th Dist.).
{¶24} Nevertheless, “ ‘ “a law nondiscriminatory on its face may be grossly
discriminatory in its operation.” ’ ” M.L.B. v. S.L.J., 519 U.S. 102, 126-127, 117 S.Ct.
555, 136 L.Ed.2d 473 (1996), quoting Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct.
2018, 26 L.Ed.2d 586 (1970), quoting Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585,
100 L.Ed. 891 (1955), fn. 11.
{¶25} The Reagan Tokes Law instructs ODRC, an executive agency, to
determine whether ORDC itself has rebutted the presumption that incarcerated
people will be released at the conclusion of their minimum terms. R.C. 2967.271(B).
That determination hinges on 1.) disciplinary infractions, 2.) restrictive housing
placements, or 3.) a level three, four, or five security classification. R.C. 2967.271(C).
Incarcerated people are placed in restrictive housing for, among other reasons,
disciplinary infractions. Ohio Adm.Code 5190-9-10(B). Likewise, security
classifications are based, in part, on an incarcerated person’s history of “disruptive
behavior.” In other words, the statute conditions the release date of an incarcerated
person on that person’s compliance with prison disciplinary policies.
{¶26} But underneath this gloss of objectivity lies a scheme that history and
statistics tell us will subject incarcerated women and minorities to longer sentences.
{¶27} We know that mass incarceration disproportionately burdens minority
groups—“ ‘African Americans are incarcerated in state prisons across the country at
11
OHIO FIRST DISTRICT COURT OF APPEALS
more than five times the rate of whites, and at least ten times the rate in five states.’ ”
Ellis v. Ohio Dept. of Rehab. & Correction, 2020-Ohio-6877, 165 N.E.3d 389, ¶ 27
(10th Dist.), quoting Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity
in State Prisons, https://www.sentencingproject.org/publications/color-of-justice-
racial-and-ethnic-disparity-in-state-prisons (accessed Dec. 21, 2020). And the
Association of Correctional Administrators found that, on average, the percentage of
Black individuals in solitary confinement was disproportionate to the percentage of
Black individuals in the total male population. The Arthur Liman Public Interest
Program and Association of State Correctional Administrators, Time-In-Cell, 30
https://law.yale.edu/sites/default/files/area/center/liman/document/time-in-
cell_combined_-web_august_2015.pdf (accessed September 8, 2022).
{¶28} Studies suggest that “minority offenders may be more likely to be
perceived as a disciplinary threat by correctional officers, regardless of an offender’s
actual behavior.” Andrea C. Armstrong, Race, Prison Discipline, and the Law, 5
U.C.IrvineL.Rev. 759, 770 (2015). And “[i]mplicit bias studies may also implicate the
severity of the punishment an offender would receive for a rule violation.” Id. A 2020
study found that Black and Indigenous people were more likely to receive write ups in
prison and “received more sanctions such as disciplinary segregation, lost sentence
credits, lost privileges, and extra duty hours as a result.” Katherine M. Becker, Racial
Bias and Prison Discipline: A Study of North Carolina State Prisons, 43
N.C.Cent.L.Rev. 175, 178-179 (2021).
{¶29} Consider the experiences of DeWayne McGee Richardson who, along
with all other Black incarcerated individuals, was repeatedly subjected to
administrative segregation, or lock downs, following rule violations committed by
12
OHIO FIRST DISTRICT COURT OF APPEALS
Black incarcerated people. Richardson v. Runnels, 594 F.3d 666, 669 (9th Cir.2010).
Prison officials explained that they “locked down black people because they were
black * * * because the blacks were the ones who were, who were at risk. These inmates
were the ones creating the security risk.” Id. at 671 (reversing the grant of summary
judgment in favor of the prison-official defendants because there was “no evidence to
disprove [Richardson’s] claim of racial discrimination governing the prison lockdowns
to which he was subjected.”).
{¶30} This disparate treatment goes beyond race. Recently, the United States
Commission on Civil Rights warned that incarcerated women “often experience
disparities in discipline” despite being less likely than their male counterparts to
engage in violent conduct in prisons. U.S. Commission on Civil Rights, Women in
Prison: Seeking Justice Behind Bars, 5-6 (Feb. 2020). Instead, “women receive a
disproportionate number of disciplinary tickets for lower-level offenses—such as being
disruptive, being ‘insolent,’ disobeying orders, cursing, and altering clothing.” Id. at
124. Investigators were told that “the female prison population is distinct from the
male population, and * * * prison rules and staff training are designed with the male
population in mind.” Id.
{¶31} When prison classification systems are not calibrated for gender-
specific characteristics, women in prison are classified “at higher security requirement
levels than necessary for the safety and security of prisons.” Id. at 5. In turn, some
women end up “serving time in more restrictive environments than is necessary and
appropriate.” Id.
{¶32} Still more, “women of color in prison and those who identify as LGBT
face specific discipline disparities.” Id. In prison, Black women comprised nearly 40
13
OHIO FIRST DISTRICT COURT OF APPEALS
percent of the restrictive-housing population despite accounting for only 23 percent of
the total female prison population. Id. at 138. Compared to their white counterparts,
Black women “were over 2 times more likely than white women to serve time in
restrictive housing.” Id.
{¶33} LGBTQI+ people in prison “are subjected to harassment, abuse, and
discriminatory treatment at the hands of prison officials and other inmates,
particularly if they are transgender women placed in men’s prisons.” U.S. Commission
on Civil Rights at 4. And lesbian, gay, or bisexual people in prison “were more likely
than heterosexual inmates * * * to have spent some time in restrictive housing.” U.S.
Commission on Civil Rights at 135. A national survey revealed that 37 percent of
transgender respondents reported harassment from correctional officers and staff.
Jaime M. Grant, Lisa A. Mottet & Justin Tanis, Injustice at Every Turn:
A Report of the National Transgender Discrimination Survey, 166
https://transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf
(accessed Sept. 8, 2022). Non-white respondents “experienced officer/staff
harassment at higher rates (44%-56%) than their white peers.” Id. Transgender men
in prison “experience officer/staff harassment at a higher incident than their
transgender female peers.” Id.
{¶34} Statistics and research show that prison disciplinary “decisions are
inextricably linked to race and gender.” Dr. Melinda Tasca & Dr. Jillian Turanovic,
Examining Race and Gender Disparities in Restrictive Housing Placements,
https://www.ojp.gov/pdffiles1/nij/grants/252062.pdf (accessed Sept. 8, 2022).
Corrections officers and administration “have wide discretion in sanctioning and
14
OHIO FIRST DISTRICT COURT OF APPEALS
segregating inmates.” Id. This discretion “can open the door to discriminatory
practices.” Id.
{¶35} That the Reagan Tokes Law ties these disciplinary practices to the
decision to extend the length of an incarcerated person’s sentence beyond the
presumption is concerning. If incarcerated minorities and women receive disparate
discipline in prison, their sentences will be increased beyond the Reagan Tokes Law
presumption in a disparate manner. Indeed, such disparate treatment, whether a
product of implicit or explicit biases, is exacerbated by the lack of due process provided
in the Reagan Tokes Law. Due process provides protections to mitigate the effects of
implicit bias. But under this statute as it currently stands, there are no protections and
disparate treatment will go unchecked.
{¶36} Also concerning is the absence of public accountability for ODRC
decisionmakers who extend a person’s presumptive term of incarceration. Unlike Ohio
judges, who face the scrutiny of the electorate every six years, appointed agency
officials evade such scrutiny. Indeed, “prisons are largely secluded from public
scrutiny.” Id. And historically “American courts have expressed reservations about
their capacity to regulate penal institutions.” Justin Driver & Emma Kaufman, The
Incoherence of Prison Law, 135 Harv.L.Rev. 515, 536 (2021). Out of concerns about
not interfering with those having expertise in prison management and the propriety
of judges regulating penal institutions grew a “reluctance to act [as] a core theme of
American prison law.” Id. at 537. As a result, prison officials are afforded unparalleled
deference and courts considering constitutional challenges must weigh an
incarcerated person’s rights against the “legitimate penological interests” and possible
“ripple effects” of protecting the person’s rights. Driver & Kaufman at 536. This
15
OHIO FIRST DISTRICT COURT OF APPEALS
deferential standard of review “render[s] prison law so unfavorable” that claims are
“almost invariably extinguished.” Id. at 539.
{¶37} I share Judge Bergeron’s concern about the practicality of as-applied
challenges to the Reagan Tokes Law. And I have serious concerns about how a person
who has been unfairly disciplined based on race, sex, sexual orientation, or some other
inappropriate factor could even begin to wage an as-applied challenge to the Reagan
Tokes Law. With the lack of transparency of prison discipline, the lack of avenues to
challenge such discipline, and the lack of due process provided in the statute, it would
be difficult to challenge an increased sentence when it is based on such discipline.
ZAYAS, P.J., concurring in part and dissenting in part.
{¶38} I agree with the majority opinion that the Reagan Tokes Law is not
facially unconstitutional under separation-of-powers, equal-protection, and
substantive-due-process grounds. With respect to procedural due process, I
respectfully dissent because I agree with Judge Bergeron’s thoughtful dissent in
Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962 at ¶ 107 (Bergeron, J.,
concurring in part and dissenting in part), that the notice and hearing procedures
under the Reagan Tokes Law violate the fundamental requirements of procedural due
process. I depart from this court’s precedent because “ ‘stare decisis’ does not apply
with the same force and effect when constitutional interpretation is at issue.” State v.
Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 35-37; State v.
Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ 38 (Fischer, J.,
concurring).
Please note:
16
OHIO FIRST DISTRICT COURT OF APPEALS
The court has recorded its entry on the date of the release of this opinion.
17