The last couple of days, I have been getting a lot of telephone calls asking about applying for judicial release in time for the holidays.
Unfortunately, I have had to tell a lot of people "it's too late for this year -- but we can start working to make sure they're home for the summer"
The fact is that it takes several months of preparation to put together a successful judicial release motion.
First comes the motion/petition itself, which involves the initial request that a judge allow an individual out of prison on some form of community control. In many cases, judicial release was discussed at the time of the plea of sentencing hearing; however, that is not always the case. In many cases, the issue of judicial release was never even considered -- and in other cases, the judge who is actually hearing the judicial release motion is not the original sentencing judge.
In some cases, the issue of judicial release was never even considered because at the time of sentencing, the option was not available. Recent changes in Ohio law, which have been designed to help decrease the prison population and encourage inmates to better behave while incarcerated and participate in prison programing, have made it possible for defendants with longer sentences to apply for judicial release.
As such, sentences of greater than ten years of non-mandatory time can now be considered for judicial release. However, sentences containing mandatory terms of incarceration, including offenses like murder and high-level drug offenses, are not eligible.
The more difficult sentences to determine are ones that contain mandatory and non-mandatory terms of incarceration -- for example, a defendant who is serving a three year mandatory gun specification with a three year non-mandatory term of incarceration for the underlying offense. In these cases, it is best to consult with an attorney to discuss when the offender is eligible.
The original motion should contain not only the motion itself, but additional documentation that you want the judge to consider. This can include certificates of completion for job training and rehabilitative programs; letters of support from family, friends and members of the community; and/or employment offers once the defendant is released.
I also strongly encourage defendants to lay out their plan upon release. Where will they live? Where will they work? How will they stay away from negative influences, including family members of friends who helped them land in prison? If drugs or alcohol were a problem prior to incarceration, how will they stay sober and resist the urge to relapse?
There are a number of other questions I will ask that are case-specific, but the number one goal is to present to judges a picture of a rehabilitated, repentant defendant who deserves a second chance -- and just as importantly, a defendant who will not pick up new criminal charges after being released.
After the initial motion, judges and their staff will review the motions. This initial review process can take anywhere from a few hours to a few weeks -- and in come cases, even a few months.
Judges may ask for input from others, including prosecutors, law enforcement, victims and their probation departments. They will review the motion, the facts of the original charge, an inmate's institutional summary and/or any other facts that they believe are necessary to decide if the motion should proceed any further.
If the judge grants it, a Phase One judicial release hearing will be scheduled. In most courts, inmates are not present either in person or via video -- but their family members, friends and other supporters can be present to express their support. In most cases, prosecutors and/or victims of crime will express their opinions on if judicial release.
Judges may encourage attorneys or defendants to withdraw their motion if they believe that it is too premature, which would allow a defendant the opportunity to refile the motion later on. They might also outright deny the motion.
If the judge grants a Phase Two hearing, it means that the individual will be brought back from the institution. In the vast majority of these cases, that indicates that the judge will be granting judicial release. In a limited number of cases, judges have ordered Phase Two hearings -- only to have the defendant commit an infraction at prison -- usually fighting -- in the interim. Those cases, as a general rule, have resulted in the judicial release motion being denied.
If the Phase Two hearing is granted, the individual will generally be placed on community control with specific terms and conditions, such as entering rehabilitation, job training, or following the standard terms and conditions of probation. In a great number of these cases, the individual is allowed to return home that day from the jail as a free person.
I often have people ask me if it's necessary to have an attorney to file a judicial release motion. The answer is no.
People can file their own judicial release motions -- ether by writing out their motion or using forms provided by the Ohio Public Defender's Office. Often times, if a defendant or his/her family is unable to afford my services, I will point him/her to these resources.
Do I think it's wise for people to have an attorney? Yes.
While judicial release motions can be granted with a pro se motion, a skilled attorney can help prepare the motion and ensure that it is timely filed and put together in a way to appeal to the judge. It also helps to have an attorney at the Phase One hearing to advocate in favor of judicial release -- the prosecutor will be there to advocate against judicial release, so why shouldn't the Defendant have someone there to advocate for it?
It also helps to have an objective perspective advocating on your behalf. An experienced attorney will be able to acknowledge and address your shortcomings, but also emphasize the positive factors that favor your motion being granted. Finally, an attorney can be there to answer questions that the judge has that may not be laid out in the specific motion -- such as questions about the underlying case or past criminal cases cases, family issues or other questions that are otherwise unable to be anticipated.
While it may be too late to apply for a judicial release in time for this Christmas, it is not too late to begin thinking about filing for a judicial release for 2018. If you or your family need to discuss the potential of filing for judicial release, please do not hesitate to contact our office at (330) 653-8511.