Law and Disorder

A sign of the times

Does the punishment fit the crime?

By A.J. Wagner

It was around 1986 when I was first interviewed for the evening news. I was an Acting Judge in Dayton Municipal Court and I had just sentenced a prostitute to a blood test for AIDS. AIDS was fairly new back then and it was a unique sentence to require a blood test for a sex worker.

Years later, I was a Montgomery County Common Pleas Court judge when a defendant appeared before me and pled guilty to felonious assault, a felony of the second degree. Specifically, the defendant, with knowledge that he was a carrier of HIV/AIDS, had sexual conduct with another person, but failed to disclose that knowledge to the other person prior to said conduct occurring. I placed the defendant on probation and, to assure future sexual partners knew of this defendant’s medical condition, I required that he first seek permission of his probation officer before having sex with another. I also required proof that the proposed partners acknowledge the defendant’s condition.

This case was eventually appealed and upheld after the appeals court went through a thorough analysis of the judicial limits on sentencing. When sentencing, courts must “consider whether the probation condition:  (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation.”

A court must also avoid making a sentence overbroad and must avoid limitations of a person’s constitutional rights. In a Montgomery County case where an eighteen year old and his sixteen-year-old friend stole a gun from a locked bedroom, the court required as part of the eighteen-year-old’s sentence, that he have no contact with a non-relative minor. The appeals court overruled the sentence saying, “the ‘no contact’ condition is unduly broad, by prohibiting unintended, chance, and fleeting encounters with a juvenile that have no nexus with criminal conduct …”

The court then addressed the limitations on the defendant’s liberty, noting it is, “protected by the due process clause of the Fourteenth Amendment. That protection entitles a person bound by a community control condition to reasonable notice of what he must avoid. It also requires the court to fashion a condition with a degree of specificity sufficient to guide a probation officer …”

The appellate court said it would be okay to say the defendant should not associate with minors, but asking him to avoid all contact would prevent the defendant from many jobs and activities that have nothing to do with his criminal behavior.

This subject comes up because a woman in Cleveland recently made national news for passing a school bus that was stopped and loading. The woman did not pass the bus by driving on the road, she went up on the sidewalk and drove down the sidewalk past the bus, then reentered the roadway where a police car lay in wait.

The woman pled guilty to passing a school bus while loading or unloading, a third-degree misdemeanor, which carries up to 60 days in jail, a $500 fine and a temporary loss of license.

A judge sentenced the woman to probation, which included a requirement the she create a sign that says, “Only an idiot drives on the sidewalk to avoid a school bus.” The judge further ordered that the sign must be written on 22 in. x 22 in. white poster board with the text written in all capital letters in black marker. The woman was required to wear the sign from 7:45 a.m. to 8:45 a.m. on Nov. 13 and 14 while standing at the scene of her transgression.

The defendant was also fined $250 and her license was suspended 30 days. One can reasonably ask if the punishment in this case fit the crime. The sentence has not been appealed, but if it were appealed, the Court of Appeals would need to apply the three-prong test above.

Do your own analysis. Is the public humiliation reasonably related to rehabilitating the offender? Does standing on the sidewalk with a sign bear some relationship to the crime of which the offender was convicted? Then, does the punishment relate to conduct which is criminal or reasonably related to future criminality and serve the statutory ends of probation?

Then ask yourself, is the punishment overbroad? Does humiliation meet the purposes and principles of sentencing?

After analyzing these questions you will have some sense of what it is like to be an appellate court judge. You will not have the same answer as everybody else, but all answers are correct.

That doesn’t mean you will be called, “Your Honor.” But you won’t need to wear a sign that says you’re an idiot either.

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 AJWagner@DaytonCityPaper.com.

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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 AJWagner@DaytonCityPaper.com.

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