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Home for the Holidays? The Basics on Judicial Release.

With the holidays quickly approaching, I have started to receive a lot of phone calls asking about how to apply for judicial release. Judicial release, or early release, is the process by which convicted felons can be released from prison before serving their entire sentence. Usually, the person is placed on some form of probation or other monitoring under the supervision of the court that sent the person to prison.

Ohio law specifically states if and when an individual can apply for judicial release. You can check out the specific state law, which is under Section 2929.20 of the Ohio Revised Code. It is important to remember that not all crimes are eligible for judicial release. For example, those sentenced to mandatory terms of incarceration are ineligible, as are those convicted of specific crimes, such as those convicted for theft in office.

As a general rule, individuals can file for judicial release at the following times:

  • If the person was sentenced to less than two years incarceration, thirty (30) days after the person arrives at a state correctional institution.
  • If the sentence is two years or more, but less than five years, one-hundred-eighty (180) days after the person arrives at a state correctional institution.
  • If the sentence is five years, no earlier than four (4) years after the individual is delivered to a state correctional institution.
  • If the sentence is more than five years but less than ten years, no earlier than five (5) years after the person is delivered to a state correctional institution.
  • If the sentence is more than ten years, no earlier than the person has served one-half of their stated prison term.

When a person has a mixture of mandatory and non-mandatory prison terms, as a general rule, the mandatory prison term must first be served. After the mandatory prison term is served, the inmate must wait until the minimum amount of time on the non-mandatory term is served.

For example, if a person is sentenced to a one-year mandatory term (such as a gun specification) and then is given an additional three years of non-mandatory term (such as a drug sentence), the person must first serve the mandatory term of incarceration and then a period of one-hundred-eighty (180) days of incarceration -- or a total of one and a half years of incarceration -- before he or she can apply for judicial release.

There are several key things to keep in mind when evaluating if you or a loved one should apply for judicial release.

  • You cannot apply for judicial release until you are actually eligible. For example, if you are sentenced to one year in prison, the person cannot apply for judicial release until at least thirty (30) days after he or she arrives in the state correctional institution.
  • The key date for calculating when a person is eligible is when they arrive at the institution -- not the total amount of days the person has been given credit for. For example, if a person receives a one year sentence and has ninety (90) days jail credit for time spent prior to arriving in the state correctional institution, they still cannot apply for judicial release until they have thirty days in the state correctional institution. The easiest way to calculate the date they are eligible is to look at the Ohio Inmate Locater (Offender Search) website and look at the person's admission date.
  • If the person had an agreed sentence, and the issue of judicial release was not mentioned at sentencing, the State/prosecutor will often object to the person receiving judicial release. Often times, at the time of sentencing, prosecutors and defense attorneys will indicate on the record if the person is free to file for judicial release or if there is an agreement that judicial release will be granted (usually only if the person behaves in prison). If there is no agreement on the record, the agreed sentence is generally intended to mean that the person will serve that term -- without judicial release. If that is the case, absent some extraordinary measures, prosecutors will often object to judicial release.
  • Judicial release is a two-phase process. In the first phase, or a Phase One hearing, the defense attorney will make his or her case for judicial release to be granted. This will be done without the inmate being present, although the inmate can send a letter or other materials to the judge to ask for judicial release. The prosecution, as well as victims of the crime (if there are any), will also have the opportunity to argue for or against judicial release. If the judge orders a Phase Two hearing, the inmate will be brought back and allowed to argue for judicial release to be granted. If the motion is granted, the person will generally be placed on probation and have the remainder of their prison sentence suspended. If the person violates their probation, the suspended portion of their sentence can be reimposed.
  • The process is not quick and there are no pre-determined timeframes for hearing the motion. Once a motion for judicial release is filed, it can take the court anywhere from two to eight weeks for the court to schedule a Phase One hearing. The court can grant and schedule the Phase Two hearing at the Phase One hearing, or can take the matter under advisement. Once the Phase Two hearing is granted, it can still take anywhere from two to eight weeks to have the inmate transferred back from the state correctional institution to the local jail facility, where they will be held pending the Phase Two Hearing. As such, if you want to help a family member get a judicial release before Christmas, the time to start working on the motion is now. If you wait until after Thanksgiving, the earliest the person will most likely be released is well after the new year.
  • If the inmate was sentenced to prison terms from multiple counties, then all of the sentencing judges would need to agree to the release. Because of this, it is important to have the judicial release motions coordinated with each other. For example, if the person has sentences out of both Cuyahoga and Summit counties, it will be important to make sure the person is eligible in both counties and then have the motions filed in both counties. The two counties can then coordinate the hearings between themselves, usually with the assistance of the attorney(s). As a general rule, it's best to have one attorney handle all of the motions -- only so that attorney can have a complete understanding of what is going on in each of the counties.

If you would like to discuss applying for judicial release for yourself or a family member, please give attorney Adam VanHo a call at the above number or at (330) 253-7171. You can also fill out the contact information sheet.

When you call, it would be helpful to have the following information handy (although not necessary):

  • The inmate's name and prison identification number.
  • The court(s) that sent the inmate to prison. It is helpful to know which court (i.e. Cuyahoga County Common Pleas) as well as the judge (i.e. Judge Michael Astrab).
  • The prison sentence(s) that the person was given, as well as if any of that time was mandatory.
  • Any programs that the person completed while incarcerated, such as drug treatment or vocational programs.

But as with all other areas of criminal law, it is important to remember that there are no guarantees about the results of a judicial release motion. There are a number of factors that go into determining if a person is granted a judicial release. However, with the right plan of attack designed by an experienced attorney, you can maximize the inmate's likelihood of being granted judicial release.

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