2021: Transformative year for fentanyl seizures, plea bargain reforms


SIDNEY — The Ohio Organized Crime Investigations Commission (OOCIC), an organization that helps combine federal, state, and local law enforcement agency efforts, seized nearly double the dollar amount of illegal drugs this year than last year. A total of $29 million was seized during 2020 compared to $42 million in 2021.

In weight, 100 more pounds of fentanyl, perhaps the most dangerous illegal drugs available due to its potency, was seized in 2020 compared with the previous year. The total amount of illegally distributed fentanyl confiscated this year was 187 pounds.

One pound equals roughly 453,592 milligrams. According to the DEA, two milligrams of fentanyl is enough to kill one individual. Therefore, 187 pounds (or 84,821,704 milligrams), was enough to kill nearly 42.5 million people.

Based on the 2019 census, Ohio’s entire population was just 11.6 million.

That’s enough seized fentanyl to kill every Ohio citizen nearly four times over.

If seizures are on the rise by OOCIC, likely so too are the number of indicted individuals. The question of conviction and sentencing for fentanyl overdose related deaths is being tackled by the Ohio Criminal Sentencing Commission (OCSC). Partnering with the University of Cincinnati, the OCSC is working to create the Ohio Sentencing Data Platform (OSDP), a publicly available website that can serve to guide attorneys and judges in their sentencing.

Increasingly, criminal cases are being settled through plea deals and bypassing juried trials. While this practice no doubt speeds the adjudication process to keep the judicial pipeline flowing, the plea bargain process has been dubbed a ‘black box’ by Brandon L. Garrett, the L. Neil Williams, Jr. professor of law at Duke University School of Law and director of the Wilson Center for Science and Justice.

According to Garrett, “Plea bargaining is seen as a ‘black box,’ within which prosecutors have free reign.”

“While a plea and the resulting judgment and sentence entered in court are public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are discriminatory, self-interested, or arbitrary, with very little oversight or sunlight,” according to Garrett. Because negotiations are conducted without rigorous, documented note taking, it opens the door for “racial disparities in charging” and other problems.

Garrett’s study found that there currently is “no way to internally evaluate whether … whether prosecutors were consistent with each other, and whether any disparities existed based on race, gender, age, quality of representation by the defense, pre-trial detention, or other arbitrary or invidious factors.” For these reasons, Garrett’s report supported data collection to permit policy development, evaluation, and supervision of outcomes.

While Garrett’s study looked at other states, similar findings are also true for Ohio.

Currently, a basic question like, “How many sentences are imposed as a result of a plea bargain in the state of Ohio, or in each Ohio county?” cannot be answered, according to the Ohio Criminal Sentencing Commission.

The OSDP database in Ohio appears to be the solution to help to create state-wide sentencing benchmarks and add increased transparency, data collection, and data analysis to the plea bargaining process in felony cases that Garrett’s study advocates. The Ohio Criminal Sentencing Commission “is keenly aware of the value of connecting all relevant government entities and public partners in order to collect and use needed data and share the information to promote smart, effective use of resources and ensure measured, proportional responses, it said it a 2017 report. Simply put, until now, Ohio has lacked “standardized parameters for how criminal justice data is collected and reported, resulting in disparity in similar types of data. Importantly, there is not a comprehensive, shared criminal justice repository that connects information” such that “the current data system for criminal justice in Ohio is disparate, mismatched, and complex, and lacks the capacity to fully and completely narrate the comprehensive criminal justice story in Ohio,” thus far preventing it from being optimally “well-positioned to identify strategies to improve data sharing and suggest comprehensive changes that affect prison and jail populations, provide an ongoing forum to debate policy initiatives, and serve the citizens of Ohio.”

Take for example, these two Ohio prosecutorial positions, one on each end of the spectrum, when it comes to plea deals.

In a previous investigation into a fentanyl-overdose death in Sidney, Shelby County Prosecutor Timothy Sell takes an equal guilt position, blaming the drug dealer and the drug buyer, and for this reason historically reduces drug-caused deaths indicted as involuntary manslaughter to reckless homicide. One death in 2021 resulted the charges being dismissed altogether in a plea deal.

Meanwhile, Hamilton County Prosecutor Joe Deters in Cincinnati, on July 5, 2021, posted his pledge on Twitter to refuse plea deals in gun violence and illegal firearm possession cases, after two young men, ages 19 and 16, shot one another to death and wounded three bystanders.

Defendants also run the gamut in terms of their defense strategies. Auglaize County Prosecuting Attorney Edwin Pierce is currently prosecuting Maria Nichole Miller, 20, from Wapakoneta on involuntary manslaughter charges following the overdose death of Nate Ellis, 40, in St. Marys. If convicted of that charge, she could receive 11 years in prison for that crime. Miller, who is smiling in her mugshot photo, pleaded “not guilty by reason of insanity,” on Oct. 28, 2021, according to court records. Her first psychological examination was conducted Nov. 3, 2021. A copy of the results of the exam, which was conducted by Forensic Psychiatry Center for Western Ohio, in Dayton, were provided to the court on Oct. 20, 2021. At the request of her attorney, Nick Catania, Miller is expected to complete her second psychological examination on Feb. 1, 2022.

Prosecutorial plea bargains and a judges sentencing are two halves of the black box issue.

“The goal of the OSDP pilot program is to open that ‘black box’ and shed some light into it,” said Allen County Common Pleas Court Judge Jeffrey L. Reed.

Reed, who was involved with the OSDP pilot program since the beginning during the fall of 2020, said there are now between 80 and 100 Common Pleas judges in Ohio participating in the program, which could see a live roll-out during 2022 or 2023.

There are several standard documents that were developed that are available online (https://www.ohiosentencingdata.info/courts). The primary document put together by the Ad Hoc Committee that Reed sat on is the Uniform Sentencing Entry (USE) form for judges. Several other templates were also developed, including the Method of Conviction (MOC) form, which provides some explanations behind plea bargains in cases of no contest, as well as not guilty by reason of insanity.

The sentencing entry does not show why a plea resulted in a reduced charge. “That’s more a function of the prosecutor’s office and the courts generally don’t get involved in those negotiations … For example, they were charged with fentanyl but through negotiations it was reduced; instead of it being a felony of the first degree, it was changed to a felony of the third degree … That is part of the story. The reasons for the negotiation are not really a part of this project,” said Reed.

When asked if the MOC form could be developed in such a way as to provide more information helping to explain the mystery behind the black box of plea deals, Reed replied, “Yes, I think it will. This is a work-in-progress. There’s no reason why it couldn’t explain why a case was reduced, which is normally a ‘black box’ between the prosecutor’s office and the defense attorney.” In short, this type of improvement in the MOC form could help to better document prosecutorial and defense reasoning used in plea agreements.

“A judge does not have to accept a plea agreement,” said Reed. That’s the other half of the “black box.”

Judges benefit from the USE forms, which act as a simplified checklist of the long list of sentencing factors outlined in ORC Chapter 2929, by recording their decisions and actions in each case, which may help reduce the possibility of a sentence being overturned in an appellate court, Reed explained.

The USE form does not remove a judge’s discretionary power in sentencing, but rather, the forms, once collected into the database, can inform them as to how other judges are sentencing in similar cases and circumstances around Ohio.

From both the victims’ and defendants’ perspectives, the objective since the pilot program when it was first proposed in 1999 by Chief Justice Maureen O’Connor was to create data points that can be compared and analyzed by researchers “in order to achieve fairness, transparency, and consistency in sentencing” among demographic groups, particularly the ability to determine or rule out discriminatory sentencing due to race, gender, and other factors.

“The USE form contains the story of the sentence,” he said. “Every sentencing case involves an individual, and every reason that person was sentenced in a particular way, there’s a story behind that. That story includes not only what crime they committed, but also things such as, ‘Did they have a prior criminal record? ‘How did they respond on prior sanctions, were they given a chance at probation in the past that they did not complete successfully?’ ‘Was there a drug problem involved?’ You also take into consideration the victim.”

Explaining sentencing decisions, including those involving plea agreements, for the death of a loved one to family members, has been particularly problematic. While it cannot bring their loved one back, the program can help survivors understand and come to terms with the justice their loved one received.

By Shannon Bohle

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