As the coronavirus (COVID-19) continues to spread through Ohio’s prisons, judges are now starting to release individuals early as a way to reduce the vulnerable prison population. If you have a loved one currently serving time who may benefit from judicial release, contact the Columbus criminal defense attorneys at Luftman, Heck & Associates.
We will discuss judicial release eligibility and any other available options to help get your loved one home.
What is Ohio Judicial Release?
Previously, judicial release was known as “shock probation” in Ohio. It is an exclusive authority given to sentencing judges or their predecessors to grant offenders early release from prison.
A judicial release is essentially an optional act of leniency based on certain eligibility criteria and the offender’s conduct while in custody. Judicial release decisions are under the judge’s discretion and must be initiated by a motion for judicial release.
Motions for judicial release can either be made by the offender or a lawyer working on their behalf.
Who’s Eligible for Judicial Release?
Under Ohio Revised Code Section 2929.20, judicial release allows eligible inmates to be released from custody and convert the remainder of their sentence to probation.
To be considered eligible, an offender first cannot be serving a mandatory prison sentence. If a sentence includes mandatory time, that portion must be served before the clock starts.
In addition, public officials convicted of certain felonies in Ohio are considered ineligible.
Aside from these conditions, a possible judicial release is available to offenders:
- Not serving a life sentence
- Who do not pose a risk to the public.
- Considered to be in imminent danger of death, medically incapacitated, or suffering from a terminal illness.
When Can I File?
Eligible offenders may file for judicial release only after serving a required amount of time in state prison. Consecutive and concurrent sentences do not affect eligibility.
- Offenders serving less than two years can file after 30 days.
- Offenders serving two years or more but less than five years can file after 180 days.
- Offenders with a 5-year prison term cannot file until after four years.
- Offenders with more than 5 years but less than 10 must serve at least five years.
- Offenders serving more than 10 years must serve at least half their sentence or five years, whichever is greater.
What’s Considered in a Judicial Release Hearing?
When a timely motion for judicial release is filed in Ohio, the original sentencing judge or their successor will consider the motion and decide whether or not to hold a hearing. The judge may deny the motion without a hearing within 60 days, but this preserves the offender’s eligibility to file again.
However, if a judge denies the motion “with prejudice,” the offender can no longer petition for judicial release.
If a hearing is granted, all the parties involved in the original case will be notified. As a result, the prosecutor, any victims, and anyone with insight or details relating to a release will be given a chance to be heard.
In addition, the court will take into account the offender’s rehabilitative actives while incarcerated. This includes their conduct while in custody, participation in educational opportunities or vocational training, substance abuse treatment, anger management, as well as any disciplinary actions in their file.
Other Factors Considered for Judicial Release are:
- The age, condition, and injuries of the victim involved
- The relationship between the offender and the victim
- Circumstances surrounding the crime and any mitigating or aggravating factors
- The offender’s prior criminal record if applicable, and the likelihood of reoffending
- If the offender has demonstrated genuine remorse.
It’s important to keep in mind that a judge cannot grant Judicial Release without a hearing, and the court will only hold one hearing for an offender. This gives an offender one chance at securing a judicial release and is referred to as a “One and Done” hearing.
How a Lawyer Helps Your Motion for Judicial Release
The strict eligibility requirements and an inability for future consideration after a denial make it critical to get judicial release right the first time. Sentencing judges also have near-total discretion when deciding these cases, and offenders are essentially asking them to reduce the penalties they initially imposed.
It takes considerable legal skill to demonstrate why someone should be released early, so you need to build the most persuasive argument possible.
By working with an experienced and dedicated lawyer who understands the Ohio judicial release process, you can determine eligibility early-on, ensure your motion is complete and timely, and, most importantly – avoid obstacles before triggering a denial. At LHA, we have decades of criminal defense experience and are authorities in Ohio’s sentencing guidelines. We know what it takes to demonstrate rehabilitation and will passionately advocate for your release.
The Process for Judicial Release in Ohio
Applying for judicial release in Ohio begins with filing an official Motion for Judicial Release.
It’s best to work with an attorney to prepare and file your motion because of the complexities involved and to avoid common mistakes. Additionally, each county will have specific rules for filing, such as who should be notified. But generally, copies of the motion should be sent to the appropriate clerk of court and original prosecuting attorney.
- Preparing the Motion / Memorandum – Once you identify the specific case with the appropriate docket number, you can explain to the judge why the early release is appropriate. This is not the place to argue innocence, rather what an offender learned and how a penalty other than prison would adequately punish the offender and protect the public.
- Certificate of Service – This is simply a promise to the court that a copy of the motion was mailed to the prosecutor’s office. While the court has the final say, it will probably not make a ruling until it hears the prosecutor’s recommendation.
- Filing Your Motion – Judicial release motions are filed in the trial court within the county of conviction. Remember, the court does not have to appoint an attorney to file your judicial release motion, and The Ohio Public Defender’s Office does not have the resources to prepare or file judicial release motions.
- The Court’s Decision – The court may deny motions without a hearing for various reasons. If the court’s entry states the motion was denied “without prejudice,” or if the entry does not mention “prejudice,” the court may consider a subsequent motion. If the court’s entry states that your motion was denied, “with prejudice,” then the court may not consider a subsequent motion.
- Judicial Release Hearing – If the court grants a hearing for judicial release, the hearing must be held within 60 days of the date on which a motion is filed. However, the court may delay the hearing for up to an additional 180 days.
- Judicial Release – If the court grants judicial release, the offender will be released from physical custody and place on community control or probation for the remainder of their sentence. Keep in mind, none of the time spent on probation will count toward the original sentence. If an offender violates probation, they may be returned to prison to serve out their sentence.
Can I Re-Apply or Appeal a Judicial Release Denial?
While judges have a lot of power when it comes to ordering a judicial release, this authority is not absolute or always immediately transparent. Offenders and family members often act too quickly when they believe they meet the eligibility requirements, but simple mistakes or oversights can lead to a denial.
If a judge denies the motion without a hearing “without prejudice,” it is likely untimely, legally deficient, or incomplete. This gives the offender the chance to reevaluate the motion, consult with a lawyer, correct any issues, and refile. However, when a petition is denied after a hearing, it is always “with prejudice.” This bars the offender from filing again.
Unfortunately, denials with prejudice are not appealable under Ohio law. This possible consequence makes it imperative for those interested in obtaining a judicial release to consult with an experienced and highly knowledgeable Ohio defense attorney.
Get Started Today. Call LHA
An Ohio prison sentence doesn’t have to set in stone. At Luftman, Heck, & Associates, we have decades of experience and track record for aggressively fighting for our clients’ rights. And those rights aren’t stripped away because of a conviction.
Let us help determine if your eligible for judicial release, file the motion on your behalf, and make the argument about why you should go home.
A loved one may have been sentenced to a prison term, but that shouldn’t expose them to a deadly virus like COVID-19. Call LHA at (614) 500-3836 so we can review the situation and explain the option for release. Free Consults. Available 24/7.