Unconstitutionality of the Reagan Tokes Law

I.    Introduction

Ohio’s response to the 2017 murder of Reagan Tokes,[1] an Ohio resident from Edgewood, Kentucky,[2] was to pass the Reagan Tokes Act.[3]  Among other things, the part of that act known as the Reagan Tokes Law (RTL) allows the Ohio Department of Rehabilitation and Correction (ODRC) to keep an offender in prison longer than the minimum term of the sentence, based solely on its own findings.[4]  The RTL is embodied in part of the Ohio Revised Code[5] and the Ohio Supreme Court should hold those sections of the Code unconstitutional.

Qualifying offenses under the RTL are all first- and second-degree felonies that do not already carry a life sentence and are committed after the law’s effective date of March 22, 2019.[6]  For such offenses, the judge imposes an indefinite sentence and sets the minimum sentence, and the statute sets the maximum sentence at one and one half times the minimum.[7]  The law establishes a rebuttable presumption that the offender will be released upon reaching the minimum term.[8]  If the ODRC – an administrative agency, not a court – finds at its own release hearing that the defendant has satisfied one of three conditions, the ODRC has successfully rebutted the presumptive release date and may hold the defendant up to the maximum sentence.[9]  Loosely, those conditions are that: 1) at any time during incarceration, he has committed violations of law or certain safety/harm rule infractions demonstrating that he has not been rehabilitated, and that his behavior demonstrates that he remains a threat to society; 2) he has been placed in “extended restrictive housing” within the year leading up to the hearing; or 3) the ODRC classifies him as security level three or higher.[10]

The constitutionality of the RTL was challenged immediately.[11]  Early challenges were unsuccessful, including in the Fifth and Sixth Districts, where the challengers lost their appeals because the appellants had not yet been held in excess of the minimum term and so “there was no injury and therefore nothing for the courts to do.”[12]  Similarly in State v. Maddox, Ohio’s Sixth District Court of Appeals held that this lack of present impact meant that the constitutionality of the presumptive release feature of the RTL is not yet ripe for review.[13]  However, the courts in at least four cases have declined to hold the constitutionality question at bay for ripeness and have instead ruled on the merits of the question, finding the law constitutional in each case.[14]  So, the Ohio Supreme Court certified the question of whether challenges to the RTL are ripe for review before the law results in an extended sentence, or only after it does.[15]  And since then, the Court heard oral arguments[16] – and then the Eighth District weighed in, finding the question ripe and the law unconstitutional in State v. Devallie.[17]

II.  Constitutionality

The constitutionality of the RTL is demonstrably in question.[18]  As mentioned, the law was found constitutional in at least four cases.[19]  But in at least one case, it was found unconstitutional.[20]  The four in which the RTL was found constitutional are all similar in reasoning.  Three of the four cases addressed constitutionality from the lens of separation of powers and in each, the courts found that the challenge failed because the law does not allow the ODRC to hold the prisoner beyond the maximum sentence imposed by the court.[21]  Three of the cases also pursued a due process angle and in each, the courts found that due process is satisfied because the ODRC’s hearing process provides notice and the appellant has an “opportunity to be heard in a meaningful manner.”[22]

But in State v. Devallie, Eighth District Court of Appeals Judge Anita Laster Mays found the RTL provisions unconstitutional on multiple grounds.[23]  Judge Mays reviewed the constitutionality of the RTL on the three primary grounds of right to trial by jury,[24] separation of powers,[25] and due process,[26] and found it could not pass muster for any of them.  The ODRC’s process usurps the right to trial by jury because a jury never reviews the facts that lead to the extension of incarceration.[27]  The RTL violates the separation of powers doctrine because under the law the ODRC – a component of the executive branch – serves as judge and jury with respect to the infractions while incarcerated, and the sentence extension that results.[28]  And the law fails to satisfy due process because: 1) it provides inadequate notice and is vague;[29] 2) “[t]he ODRC has unfettered discretion to decide, based on the nebulous statutory guidance, whether the offender should remain imprisoned beyond the presumed release date to the maximum term,”[30] effectively applying vagueness to show inadequate parameters on executive branch discretion;[31] and 3) the acknowledged lack of substantive due process in prison disciplinary hearings – such as the presumption of innocence and the right to call witnesses – is a barrier to a fair trial.[32]

The conflict cases were decided on much narrower grounds than Devallie.  On separation of powers, the Devallie opinion included the additional element that though the sentence included the potential for additional time, neither a judge nor jury weigh in on the infractions that result in the additional time.[33]  The court in Devallie also added depth to the due process analysis, finding that procedural due process is lacking in fairness because the incarcerated version of due process is insufficient to address new charges,[34] and substantive due process is lacking because the procedures used by the ODRC to establish the conditions for rebuttal of release are vague and not even subject to judicial review.[35]  Further, and perhaps most significant, the Devallie opinion also addressed the right to a trial by jury (on the additional offenses that result in extension of incarceration),[36] which is not addressed in the conflict cases at all.  Collectively, this logic should sway the Ohio Supreme Court in favor of finding the law unconstitutional.

III. Ripeness

Courts do not address questions of constitutionality unless absolutely necessary.[37]  In State v. Maddox, Ohio’s Sixth District Court of Appeals found the constitutionality of the presumptive release feature of the RTL was not yet ripe for review.[38]  The ruling in that case came down just days after the last of the four conflict cases,[39] each of which did take up the question of constitutionality.  This is the conflict certified by the Ohio Supreme Court.[40]  Is the RTL ripe for review when those whose liberty will be affected have not yet (been) affected?[41]  But just like with the question of constitutionality, the Devallie appeal brought more to the bench on the topic of ripeness.

Appellees, in their Brief on The Merits argued that not only had Devallie not been affected by the ODRC’s ability to rebut release at the minimum sentence, but also that he might never be – the conditions necessary for rebuttal may not arise.[42]  They then cited a number of maxims explaining why ripeness is relevant, such as that the “judicial machinery should be conserved for problems which are real or present and imminent, not squandered on problems which are abstract or hypothetical or remote.”[43]

But the appellant, Devallie, argues that the whole legal scheme that comprises the RTL is unconstitutional and therefore invalid, and so the court should not have imposed an indefinite sentence under that law in the first place.[44]  And, he argues that the very question of constitutional invalidity is ripe for review because it is facially unconstitutional; not just as applied, not just hypothetically.[45]  As Timothy Sandefur explains in his 2010 Akron Law Review article:

A plaintiff who argues that a law is facially invalid is claiming that the law is not, and never can be, applied in a way that satisfies constitutional restrictions. This is a claim that some fundamental flaw renders the challenged law inherently unconstitutional, regardless of factual circumstances of a particular case. An as-applied challenge, by contrast, holds that while some circumstances may exist in which the challenged law is within constitutional boundaries, something special about this case has caused it to exceed those bounds.[46]

This facial attack does not guarantee that the Ohio Supreme Court will find that the RTL’s constitutionality is ripe for review, because the impact of withholding a decision is one of the things considered in evaluating ripeness.[47]  Arguing against ripeness is arguing that the merits are not yet of concern, but as the counsel for the appellant pointed out in the oral arguments, the state actually appeals this very topic on the merits when it loses at the common pleas court.[48]  That suggests ripeness of the merits and even if it did not, as Chief Justice O’Connor pointed out, the remedy of habeas corpus takes time and during that time, the appellant could be incarcerated invalidly.[49]  This speaks to the impact of withholding a decision and suggests that the Ohio Supreme Court will find that the issue is ripe.

IV. Conclusion

The Reagan Tokes Law sets up the Ohio Department of Rehabilitation and Correction to be prosecutor and judge regarding violations of law by inmates sentenced under the law’s indefinite sentencing scheme.  This usurps the role of the judicial branch.  And under this scheme, there is no trial by jury for alleged violations, and due process is incomplete, at best.  The entire indefinite sentencing scheme is therefore facially unconstitutional and as such, the Ohio Supreme Court should rule the RTL is not only ripe for review, but also unconstitutional ab initio.

[1] Summer Cartwright et al., Reagan Tokes Trial: Prosecution Pokes Holes in Golsby’s Account of Feb. 8 Using GPS Data of His Whereabouts, The Lantern (Mar. 8, 2018), https://www.thelantern.com/2018/03/reagan-tokes-trial-prosecution-pokes-holes-in-golsbys-account-of-feb-8-using-gps-data-of-his-whereabouts.

[2] Reagan Delaney Tokes, The Blade (Feb. 13, 2017), https://www.legacy.com/us/obituaries/toledoblade/name/reagan-tokes-obituary?pid=184115949.

[3] The Reagan Tokes Act amends multiple sections of the Ohio Revised Code to accomplish its purpose.  S.B. 201, 1, 132d Gen. Assemb. (Ohio 2018), https://search-prod.lis.state.oh.us/solarapi/v1/general_assembly_132/bills/sb201/EN/05/sb201_05_‌EN?format=pdf.  The act became effective March 22, 2019.  State v. Devallie, 2021-Ohio-1809, 173 N.E.3d 544, ¶ 2 (8th Dist.).

[4] S.B. 201, 1, 132d Gen. Assemb. (Ohio 2018) (“to allow the Department to rebut the release presumption and keep the offender in prison up to the maximum term if it makes specified findings . . . .”).

[5] The portions of the Ohio Revised Code addressed herein are: § 2929.02 (specifying an indefinite prison term for murder); § 2929.03 (specifying an indefinite prison term for aggravated murder); §§ 2929.14(A)(1)(a), (A)(2)(a), (C)(10) (detailing the application of the indefinite prison term); § 2953.08 (limiting the relationship of appeal as a matter of right to indefinite sentencing); and §§ 2967.271(C), (F), (G) (detailing the presumptive release rebuttal mechanisms).  Ohio Rev. Code Ann. § 2929.02 (West 2022); Ohio Rev. Code Ann. § 2929.03 (West 2022); Ohio Rev. Code Ann. § 2929.14 (West 2022); Ohio Rev. Code Ann. § 2953.08 (West 2022); Ohio Rev. Code Ann. § 2967.271 (West 2022).

[6] State v. Devallie, 2021-Ohio-1809, 173 N.E.3d 544, ¶ 2 (8th Dist.).

[7] Id.

[8] Id.

[9] Id.

[10] Id. ¶ 2(1) – 2(3); Ohio Rev. Code Ann. § 2967.271 (West 2022).

[11] Devallie, 173 N.E.3d ¶ 11.

[12] Id. ¶ 13 (citing State v. Dames, 2020-Ohio-4991, 2020 WL 6193967, ¶ 20 (8th Dist.)).

[13] State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150, ¶ 11 (6th Dist.).

[14] State v. Guyton, 2020-Ohio-3837, 2020 WL 4279793, ¶ 17 (12th Dist.); State v. Barnes, 2020-Ohio-4150, 2020 WL 4919780, ¶ 38 (2nd Dist.); State v. Ferguson, 2020-Ohio-4153, 2020 WL 4919694, ¶ 27 (2nd Dist.); State v. Leet, 2020-Ohio-4592, 2020 WL 5743293, ¶¶ 15, 21 (2nd Dist.).

[15] Devallie, 173 N.E.3d ¶ 15.

[16] Case Information, Sup. Ct. Ohio, https://www.supremecourt.ohio.gov/Clerk/ecms/#/caseinfo/2020/1266 (last visited Feb. 20, 2022).

[17] Devallie, 173 N.E.3d ¶ 15.

[18] Devallie, 173 N.E.3d ¶¶ 32, 55, 86; Guyton, 2020 WL 4279793, ¶ 17; Barnes, 2020 WL 4919780, ¶ 38; Ferguson, 2020 WL 4919694, ¶ 27; Leet, 2020 WL 5743293, ¶¶ 15, 21.

[19] Guyton, 2020 WL 4279793, ¶ 17; Barnes, 2020 WL 4919780, ¶ 38; Ferguson, 2020 WL 4919694, ¶ 27; Leet, 2020 WL 5743293, ¶¶ 15, 21.

[20] Devallie, 173 N.E.3d ¶¶ 32, 55, 86.

[21] Barnes, 2020 WL 4919780, ¶ 36; Ferguson, 2020 WL 4919694, ¶ 23; Leet, 2020 WL 5743293, ¶¶ 15.

[22] Guyton, 2020 WL 4279793, ¶ 11; Ferguson, 2020 WL 4919694, ¶ 25; Leet, 2020 WL 5743293, ¶¶ 19.

[23] Devallie, 173 N.E.3d ¶¶ 19-86.

[24] Id. ¶¶ 19-33.

[25] Id. ¶¶ 34-56.

[26] Id. ¶ 86.

[27] Id. ¶ 32-33 (“We agree that the Reagan Tokes Law violates the Sixth Amendment right to trial by jury. . . . Under the Reagan Tokes Law, the role of the jury is, in fact, usurped not by the trial court or other branch of the judiciary, but by the ODRC based on conduct wholly unrelated to Delvallie's conviction.”).

[28] Id. ¶ 55 (“Imposition of the rather elaborate protocol under the Reagan Tokes Law does not alter the fact that the ODRC executive branch is ‘trying, convicting, and sentencing inmates for crimes committed while in prison.’”).

[29] Devallie, 173 N.E.3d ¶ 68.  The court summarizes its concern, as follows:

Public media is replete with reports of attacks by inmates against inmates, inmates against corrections officers, and corrections officers against inmates.  Does the statute advise, for example, that if attacked by a definite term inmate with nothing to lose, the offender best run like the wind because involvement in an altercation, assuming he survives, could cost him his release?

Id.  And the court and finds that the statute does not “provide fair warning to the ordinary citizen so behavior may comport with the dictates of the statute.” Id. ¶ 69.

[30] Id. ¶ 69 (“and thus the statute does not ‘preclude arbitrary, capricious and generally discriminatory enforcement by officials given too much authority and too few constraints.’”).

[31] Id. ¶¶ 73-75.

[32] Id. ¶ 86 (“Thus, Delvallie's due process rights are violated in spite of a constitutional liberty interest because he is incarcerated.”).

[33] Devallie, 173 N.E.3d ¶ 46.

[34] Id. ¶¶ 76-86.

[35] Id. ¶¶ 73-75.

[36] Id. ¶¶ 19-33.

[37] Maddox, 159 N.E.3d ¶ 11.

[38] Id.

[39] Guyton, 2020 WL 4279793, ¶ 17; Barnes, 2020 WL 4919780, ¶ 38; Ferguson, 2020 WL 4919694, ¶ 27; Leet, 2020 WL 5743293, ¶¶ 15, 21.

[40] Devallie, 173 N.E.3d ¶ 14.

[41] Id.

[42] Appellee’s Brief on the Merits, State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150 (No. 2020-1266), at 2.

[43] Id. at 5-6.

[44] Appellant’s Reply Brief at 2, State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150 (No. 2020-1266) (referring specifically to Ohio Rev. Code Ann. § 2929.14(A)(2)(a) (West 2019)).

[45] Id.

[46] Timothy Sandefur, The Timing of Facial Challenges, 43 Akron L. Rev. 51, 53 (2010), https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=1131&context=akronlawreview (emphasis added).

[47] Richard H. Fallon, Fact and Fiction About Facial Challenges, 99 Cal. L. Rev. 915, 962 (2011), https://dash.harvard.edu/bitstream/handle/1/11222673/01_Fallon.pdf.

[48] Oral Argument at 9:30-10:13, State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150 (No. 2020-1266) https://www.ohiochannel.org/video/supreme-court-of-ohio-case-no-2020-1266-state-v-maddox.

[49] Id. at 12:25-13:16.  But in immediate response, counsel for the appellee pointed out that there are expedited options for habeas corpus.  Id. at 13:16.