“Normally if you would have gotten a straight 15-year sentence … at the end of the 15, that was your outdate,” Skelton told Hansen. “But what Reagan Tokes (Act) did, they said ‘no, we’re going to look to see what he does in prison. We will see how he operates and see what he does. Did he do a bunch of programs, a model prisoner? Or, if he does this wrong or that wrong, we’re going to take a look at him.’ And they’re going to look at everything. … Mostly, it’s your in-prison performance, and they have the authority to give you an additional five years, or one-half of the 10 that I give you.”
“Which makes this a sentence essentially of 15-year base and a maximum of 20 years,” Skelton said.
Now, the Ohio Supreme Court is considering whether the sentencing structure can be reviewed by them as defendants like Hansen are being sentenced under Reagan Tokes or if it has to wait until a defendant has served the minimum term and is subjected to an extension application.
The question they are reviewing is connected to a case out of Lucas County and a timeline for when a ruling on the matter might be made is still unclear.
Multiple Montgomery County defendants convicted of violent crimes have been sentenced under the Reagan Tokes Act. The law, which was established following the homicide of Ohio State University student Reagan Tokes at the hands of a violent felon who had been recently released from prison, aims to prevent violent offenders from leaving prison while they still pose a risk to society, legislatures said when it was signed into law.
But some judges and lawyers across the state believe that the law is unconstitutional and the law has been challenged in appeals courts to mixed results. Opponents have argued that it violates a defendants’ due process.
Montgomery County Common Pleas Judge Steven Dankof ruled the sentencing structure unconstitutional, arguing that it breaches the separation of powers guaranteed in the constitution.
But that argument was rejected by the local appeals court.
“The law does not give the (The Ohio Department of Rehabilitation & Correction) unfettered discretion to require an offender to serve more than the minimum term. And it affords an offender notice and an opportunity to be heard before more than the minimum may be required,” the appeals court ruled.
The Reagan Tokes Act applies to any Ohio defendant who is convicted of a first- or second-degree felony committed after March 22, 2019. There is a presumption that the defendant will be released from prison when the minimum sentence is up, but the ODRC can prevent that and make the defendant serve the longer sentence after holding a hearing about the defendant’s behavior while serving in prison.
Also, the law allows the ODRC to recommend to the judge that a convict’s minimum sentence be reduced based on his or her behavior in prison.
The Montgomery County Prosecutor’s Office has defended the new sentencing structure during court hearings and in court filings. Montgomery County Prosecutor Mat Heck Jr. told the Dayton Daily News that the form of sentencing isn’t new to Ohio as indeterminate sentencing had been used for decades before 1996.
“The Second District Court of Appeals has consistently ruled that Reagan Tokes is constitutional and we see no reason why that would change,” Heck said.
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