Law and Disorder

Shortcut justice: Long-term injustice

By A.J. Wagner

As a former judge, I am intrigued by the idea of justice. After all, justice is what a court is supposed to be about. It is always the goal of the law to be just or to bring about justice. Yet, a definition for justice is elusive. Some would go so far as to say justice is not possible except from God. We earthbound creatures do not have the ability to be just, according to this thought, because we are simply too selfish.

We can look at some of our laws, meant to bring justice, and know that to apply such laws is unjust. For instance, I once had a case in which a young man of eighteen years was asked by an older man to deliver some drugs. Because the young man was caught with a substantial amount of drugs I was forced to send him to prison for three years. He had no prior criminal record and was, honestly, not bright enough or mature enough to understand the consequences of his actions as being a serious crime. His older partner, who knew perfectly well the advantage of having someone else hold the package for him, could not be sentenced to more than eighteen months.

Three-strikes laws are notorious for sending petty thieves to prison for twenty-five years or more. As a juvenile, Santos Reyes was convicted of burglary. A few years later he was convicted of robbery in which no one was harmed. He set his life straight for more than ten years when his cousin asked him for help taking the written portion of the driver’s license exam. Santos took the test for him and was found out. This time he was convicted of perjury and sentenced to twenty-five years in prison. Is this justice?

Answers will differ. Certainly, Reyes didn’t believe that helping his cousin was a serious crime. His cousin likely agreed. Even if you were to say that Reyes got what he deserved, did the taxpayers deserve it? Reyes’ twenty-five year sentence cost taxpayers in California more than $1 million at the rate of $47,000 per year, which is what prison costs in that state. Is that justice?

Ohio Revised Code section §2929.11 tries to address justice by stating:

(A) A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing. The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.

(B) A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders.

(C) A court that imposes a sentence upon an offender for a felony shall not base the sentence upon the race, ethnic background, gender, or religion of the offender.

A judge is then required, by Ohio Revised Code §2929.12 to consider the seriousness of the crime and the chance of the crime occurring again. Specifically, the judge must consider the following to determine seriousness:

(1) The injury to the victim and the victim’s age or physical condition.

(2) If the harm was physically or economically serious.

(3) Did the offender hold a special position of trust?

(4) Did the offender’s occupation require prevention of the crime?

(5) Did the offender’s office or reputation facilitate the crime?

(6) Did a relationship with the victim facilitate the offense?

(7) Was the offender paid to commit the crime?

(8) Was the crime a result of racial or other prejudice?

(9) Was the offense committed near or in the presence of children?

(10) Did the victim induce or facilitate the offense?

(11) Was the offender provoked?

(12) Was physical harm intended or accidental?

(13) Other unstated considerations may be made.

As to whether the crime might occur again the judge must consider:

(1) The previous record and punishment of the offender.

(2) The offender has refused treatment for addictions.

(5) The offender shows no genuine remorse.

(6) Lack of prior record.

(7) Has it has been a long time since a prior offense?

(4) Were the circumstances highly unusual?

Mandatory sentencing and three strikes laws are shortcuts to this formula. But are shortcuts just?

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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