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Susana Tolentino, Associate Member, University of Cincinnati Law Review
The Reagan Tokes Law became effective on March 22, 2019. The Law brings indefinite sentencing back to Ohio. It has the same constitutional issues that caused the repeal of the statute commonly referred to as the “Bad Times” statute. Both laws provide for the “trying, convicting, and sentencing [of] inmates for crimes committed while in prison” by the executive branch.  However, assumedly learning from the repeal of the “Bad Times” statute, the drafters of the Reagan Tokes Law attempted sleight of hand to hide this reality by requiring the trial judge to impose the minimum and maximum terms at the time of sentencing. This tries to obscure the power the Law gives to the executive branch.
This article will discuss the constitutionality of the Reagan Tokes Law and how the subtle changes in the indefinite sentencing scheme, from “Bad Times” to Reagan Tokes, may cause the Law’s repeal. Part II of this article will briefly overview the “Bad Times” statute and the Reagan Tokes Law. Part III summarizes the arguments for and against constitutionality within Ohio courts. Part IV analyzes a case currently before the Supreme Court of Ohio which addresses the ripeness of the constitutionality question and argues the sentencing timing is merely a mirage to feign constitutionality. Part V emphasizes that the Court’s considerations and determination on ripeness may signal how the Court will rule when posed with the constitutionality question in the future.
II. Indefinite Sentencing Schemes
A. “Bad Times” Statute
The Law commonly referred to as the “Bad Times” statute, was repealed on April 7, 2009. The Supreme Court of Ohio found the Law unconstitutional in State ex rel. Bray v. Russell. The statute gave the parole board the power to “punish a violation committed by the prisoner by extending the prisoner’s stated prison term for a period of fifteen, thirty, sixty, or ninety days.” If a prisoner’s term was extended under this law, the time added was referred to as “bad time.” A “violation” was defined as “an act that is a criminal offense under the law of this state or the United States, whether or not a person is prosecuted for the commission of the offense.”
The Bray Court held the scheme violated the separation of powers as established in the Ohio Constitution by permitting the executive branch to review “crimes” the inmate allegedly committed while imprisoned and sentence them for those crimes. These powers rest with the judicial branch, which is tasked with hearing controversies, discovering the facts, and applying the law to those facts. Therefore, the court found the statute unconstitutional because it impermissibly gave judicial power to the executive branch in violation of the separation of powers doctrine.
B. Reagan Tokes Law
Ten years later, the Ohio legislature brought back indefinite sentencing under the Reagan Tokes Law. The scheme applies to all first and second-degree felonies committed after its enactment that do not already carry a life sentence. The statute requires the sentencing judge to impose a minimum and a maximum term in the following manner:
When confronting a nonconsecutive or concurrent sentence, the Reagan Tokes Law first requires the sentencing judge to impose an indefinite sentence with a minimum term selected by the judge. The judge must also impose a maximum term predetermined pursuant to a statutory formula set forth in R.C. 2929.144. The maximum term is 50% of the minimum term plus the minimum term. An offender sentenced under Reagan Tokes has a rebuttable presumption of release at the conclusion of his minimum term. However, at the conclusion of his minimum term, the Ohio Department of Rehabilitation and Correction (“ODRC”), must hold a hearing and may rebut the presumption of release.
To keep an inmate incarcerated beyond the minimum term, the ODRC has to find that one of three conditions applies. All three conditions are based on the conduct of the inmate while he or she has been incarcerated, not on the conduct which constituted the crime for which the individual finds him or herself in jail. Since its enactment, the constitutionality of the Reagan Tokes Law has been in question, and Ohio courts are divided.
III. Ohio Courts are Split
A. Reagan Tokes Law Indefinite Sentencing is Constitutional
Some Ohio Courts have found the Reagan Tokes Law constitutional. The State v. Leet court was asked to decide whether the Law “violates the separation of powers doctrine of the United States Constitution and the Ohio Constitution, and strips individuals of their constitutional right to due process.”
The argument for refuting a separation of powers violation hinges on distinguishing the “Bad Times” statute from the Reagan Tokes Law by pointing to the timing of the imposition of sentencing. The “Bad Times” statute had allowed the parole board to impose additional terms beyond what the trial court had set. Under the sentencing scheme demanded by the Reagan Tokes Law, the trial court must impose both the minimum and the maximum sentence, and the executive branch cannot extend the term beyond the maximum. The court concluded this distinction eliminates the separation of powers problem of the “Bad Times” statute and, therefore, does not find the Law unconstitutional on these grounds.
Arguments refuting due process violations also hinge on this timing distinction. In State v. Leet the defendant complained that “the law permits him to face sentencing without the assistance of counsel and to be sentenced for crimes he has not committed.” The court concluded because the arguments are founded on the idea that the Ohio Department of Rehabilitation and Correction (“ODRC”) can extend his sentence, these arguments are moot; the ODRC is not extending the sentence because the trial judge imposed the maximum sentence. Therefore, the defendant had counsel when he was sentenced.
The defendant in Leet also argued due process violations. He claimed the imposition of an indefinite sentence meant the trial court could not “fully advise him of the consequences of his sentence” because the ODRC had not “established a proper procedure for how and when they will increase an individual’s incarceration time.” The court found how the parties conducted the plea hearing satisfied due process. The defendant plead knowingly, intelligently, and voluntarily; he was properly apprised of the maximum penalty. It was explained to him that the actual time he would spend in prison would be subject to his behavior while in prison. The court also found the statute properly established procedures, pointing to the language of the statute that requires the DRC, when imposing sentences past the minimum, to have a hearing, give notice to the offender, and allow the offender to be heard before a determination is made.
B. Reagan Tokes Law Indefinite Sentencing is Unconstitutional
Other Ohio courts have reviewed the constitutionality of the Reagan Tokes Law and found it unconstitutional. The Eighth Appellate District recently held the Reagan Tokes Law violates the separation of powers doctrine and due process in State v. Delvallie.
The Delvallie court reasoned the Ohio Constitution clearly divides the branches of government into legislative, executive and judicial and also specifies that “the general assembly shall [not]*** exercise any judicial power not herein expressly conferred.” Delvallie relied on Bray, where the Supreme Court of Ohio found the “Bad Times” statute unconstitutional on a separation of powers violation, to support his argument for the same. The State argued the reliance on Bray was misplaced because the trial judge, under Reagan Tokes, must impose the maximum term at the time of sentencing, versus the bad time provision, where the parole board lengthened the sentence past the term imposed by the sentencing court.
However, the court found that under both laws, the term the inmate serves is ultimately “conditioned on the offender’s acts committed during the incarceration and is at the full discretion of the ODRC.” The trial judge may impose the minimum and maximum sentence, but the minimum sentence is the only term set based on the facts of the underlying conviction. The Reagan Tokes Law establishes that the offender “shall” be released at the end of the minimum term, unless, the ODRC finds the inmate committed one of the acts cited in the statute during his or her incarceration. Therefore, the statute is unconstitutional because the ODRC has taken over the judiciary’s role and is “trying, convicting, and sentencing the inmates for crimes committed while in prison” and this is a violation of the separation of powers.
When reviewing for a due process violation, the Delvallie the court assessed, among other arguments, the argument that the “statute is void for vagueness on its face because it does not provide adequate notice of what conduct will extend the presumed release date at the behest of the ODRC.” To find a law void for vagueness, the Supreme Court of Ohio requires analysis of three values: that the statute (1) “provide fair warning to the ordinary citizen so behavior may comport with the dictates of the statute,” (2) “preclude arbitrary, capricious and generally discriminatory enforcement by officials given too much authority and too few constraints,” and (3) review “to ensure that fundamental constitutionally protected freedoms are not unreasonably impinged or inhibited.” 
In reviewing the statutory language under the values, the court found the language describing potential rule infractions was sufficiently unclear to violate the first requirement. The statute did not provide enough detail to ensure the inmate knew what actions would trigger an infraction. The ODRC then has the discretion to decide whether the inmate has committed an infraction within the vague definitions in the statute; this violates the second requirement. Finally, the court reviewed the third requirement by looking at a fundamental of due process law—the accused must have had fair notice of what conduct would be considered criminal. Here the court does not believe the statute provides fair notice; an ordinary citizen would not know what conduct would trigger a finding of guilt by the ODRC and an extension of the sentence beyond the presumptive minimum imposed by the trial court.  The court concluded statute failed all three values and was void for vagueness.
Therefore, the Law was unconstitutional because it violated the separation of powers doctrine and did not provide due process.
The State has argued the Reagan Tokes Law does not violate the constitution. In distinguishing the indefinite sentencing scheme of Reagan Tokes from that of the “Bad Times” statute, some Ohio courts have agreed. According to proponents of the Law, because the trial judge imposes the maximum term at sentencing, the statute does not violate the doctrine of separation of powers or due process. The purported saving grace between the two laws—the timing difference—is, in fact, a mirage, and the State brings this mirage down with their arguments to the Supreme Court of Ohio against ripeness in State v. Maddox.
Some Ohio courts have refused to review the constitutionality question stating the argument is not yet ripe for review. The Supreme Court of Ohio recently heard oral arguments on the certified conflict question: Is the constitutionality of the Reagan Tokes Law “ripe for review on direct appeal from sentencing or only after the defendant has served the minimum term and been subject to extension by application of the  [Law]” The State argued the question is not ripe for review. In taking this stance, the State shows the Court how the change in the timing of sentencing between the “Bad Times” statute and the Reagan Tokes Law is merely a facial change. Structurally the ODRC is still acting as the judge, prosecutor, and jury.
The State argued the question of constitutionality is not ripe for review because “it rests on contingent events that may never occur”; because the defendant will not be subject to the application of the indefinite sentencing provisions until he has served his minimum term and has been denied release, he has not suffered any harm. The State, with this reasoning, unknowingly points the Court to the correct understanding of the statute. The statute impermissibly grants the ODRC judicial power because the ODRC can deny the defendant release based on events that have not yet occurred. The release date is subject to how the ODRC applies the statute’s provisions. The timing of sentencing—the purported difference between the Reagan Tokes Law and the “Bad Times” statute—is merely a ruse to fool courts into believing the constitutional violations are corrected.
The reality is that the Reagan Tokes Law requires the imposition of an extended sentence based on a mathematical formula. The trial judge must add this extension to the minimum sentence in a prescribed manner. The trial judge bases the minimum sentence on the facts of the case and the crime, the additional term imposed by the trial judge is based solely on algebra. The defendant does not know how long he or she will serve in jail because the ODRC can decide to detain the inmate after the term imposed by the judge. Time served between the minimum and maximum sentences is based on infractions committed by the inmate after sentencing, and the executive branch adjudicates these infractions. The fact that the State believes the constitutional argument is not yet ripe for review demonstrates the mirage of the timing difference. Suppose the Court accepts the State’s arguments against ripeness. In that case, the Court will have acknowledged the ODRC is the branch sentencing the inmate for post-conviction crimes because the inmate will be subject to unknowable harms contingent on the executive branch and its future application of detainment scheme.
However, if the Supreme Court of Ohio finds the question is ripe for review, the argument against constitutionality still stands. The State is only half correct in saying “the defendant has not yet been subject to the application of these provisions.” While it is true the defendant will not be subject to the ODRC deciding his or her term—based on events that occur while incarcerated—until he or she has served the minimum sentence, the defendant at the time of sentencing has already suffered some harm under the Reagan Tokes Law. The defendant does not know the true length of his sentence at the time of sentencing, is handicapped in plea bargains because of this, and does not have clear notice as to what proscribed conduct could keep him incarcerated after the minimum term. These harms stem directly from the use of the Law in the sentencing court; therefore, there is no need for further factual development to review the facial challenge to the statute’s constitutionality.
To avoid the same constitutionality questions that “Bad Times” faced, the Reagan Tokes Law changed the timing of the sentencing. Those in favor of the Law argue the question of constitutionality is not ripe for review. The State wants it both ways. First, the application of indefinite sentencing provisions does not occur until the inmate has served the minimum sentence and is then kept longer by the ODRC, so the harm has not yet occurred; therefore, the question is not yet ripe for review. Second, the judge applies the indefinite sentencing provisions at sentencing; therefore, the Law does not violate the separation of powers doctrine or due process. You cannot have your cake and eat it too. By trying to postpone reviewing the Law’s constitutionality, proponents have shown their cards that the “change” to the Law from the “Bad Times” statute is purely a facial change. The Supreme Court of Ohio has heard arguments on ripeness, and these arguments point to the unconstitutionality of the Law. Although the constitutionality question has not yet reached the Court, State v. Maddox paves the way for the Court to find the Law unconstitutional.
 O.R.C. Ann. § 2901.011 (West 2019).
 O.R.C. Ann. §2967.11 (repealed 2009).
 State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 136, 729 N.E.2d 359, 362 (2000); see also State v. Oneal, Hamilton No. 1903562, 2019 WL 7670061 (2019).
 O.R.C. Ann. § 2967.11 (repealed 2009).
 See Bray, 89 Ohio St.3d 132, 729 N.E.2d 359 (2000).
 O.R.C. Ann. § 2967.11(B) (repealed 2009).
 Id. at § 2967.11(A).
 See Bray, 729 N.E.2d at 362.
 O.R.C. Ann. § 2901.011 (West 2019).
 State v. Dames, 8th Dist. Cuyahoga No. 109090, 2020-Ohio-4991 ¶ 2.
 Id. at ¶ 4 (“Pursuant to R.C. 2967.271(C), the ODRC must find that one of the following three conditions applies in order to hold an offender beyond the minimum term:(1) Regardless of the security level in which the offender is classified at the time of the hearing, both of the following apply: (a) During the offender’s incarceration, the offender committed institutional rule infractions that involved compromising the security of a state correctional institution, compromising the safety of the staff of a state correctional institution or its inmates, or physical harm or the threat of physical harm to the staff of a state correctional institution or its inmates, or committed a violation of Law that was not prosecuted, and the infractions or violations demonstrate that the offender has not been rehabilitated.(b) The offender’s behavior while incarcerated, including, but not limited to the infractions and violations specified in division. The offender’s behavior while incarcerated, including, but not limited to the infractions and violations specified in division (C)(1)(a) of this section, demonstrate that the offender continues to pose a threat to society; (2) Regardless of the security level in which the offender is classified at the time of the hearing, the offender has been placed by the department in extended restrictive housing at any time within the year preceding the date of the hearing; (3) At the time of the hearing, the offender is classified by the department as a security level three, four, or five, or at a higher security level.”).
 State v. Leet, 2nd Dist. Montgomery No. 28670, 2020-Ohio-4592 (2020); State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153 (2020); State v. Guyton, 12th Dist. No. CA2019-12-203, 2020-Ohio-3837 (2020); State v. Simmons, 8th Dist. Cuyahoga No. 109476, 2021-Ohio-939 (2021).
 See Leet, 2020-Ohio-4592 at ¶ 6.
 Id. at ¶ 15.
 Id. at ¶ 16.
 Id. at ¶ 17.
 Id. at ¶ 18.
 Id. at ¶¶ 19-21.
 Id. at ¶ 19.
 State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2021-Ohio-1809, (2021); State v. Sealey, 8th Dist. No 109670, 2021-Ohio-1949 (2021); State v. Daniel, 8th Dist. No. 109583, 2021-Ohio-1963 (2021); State v. Oneal, Hamilton No. 1903562, 2019 WL 7670061 (2019).
 See Delvallie, 2021-Ohio-1809 ¶ 34; Ohio Const. art. II, § 32.
 Id. at ¶ 36.
 Id. at ¶ 40.
 Id. at ¶ 46.
 Id. at ¶ 51.
 Id. at ¶ 55 (quoting Bray, 89 Ohio St.3d at 136, 729 N.E.2d 359 (2000)).
 Id. at ¶ 60.
 Id. at ¶ 63 (quoting State v. Collier, 62 Ohio St.3d 267, 269-270, 581 N.E.2d 552 (1991), quoting State v. Tanner, 15 Ohio St.3d 1, 3, 472 N.E.2d 689 (1984)).
 Id. at ¶ 69.
 Id. at ¶¶67-69.
 Id. at ¶ 69.
 Id. at ¶ 70.
 Id. at ¶¶ 67, 72 (quoting Brief for Appellent at 12 “[Delvallie may commit an infraction] by committing any violation of Law which indicates a lack of rehabilitation. This is too vague. If, for example, he argues verbally with a guard and thus slows the guard’s progress in making a mid-day inmate count, has he hamper[ed] or impeded a public official in the performance of the public official’s lawful duties in violation of R.C. 2921.31? If he fails to clean up a spilled cup of coffee in the mess hall, thus creating a risk of physical harm to someone who might slip, has he engaged in disorderly conduct under R.C. 2917.11(A)(5)? If, in response to a written questionnaire during a therapy session, he writes that he is innocent of the crime and disagrees with the jury’s verdict, has he falsified a government writing under R.C. 2913.42(A)(1), (B)(4)? And, how does he know that what he has done indicates a lack of rehabilitation, the second prong of subsection (A)(1), and a threat to society, as required by (A)(2)?”)
 Id. at ¶ 71-72.
 See supra notes 15, 26.
 State v. Leet, 2nd Dist. Montgomery No. 28670, 2020-Ohio-4592 (2020); State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153 (2020); State v. Simmons, 8th Dist. Cuyahoga No. 109476, 2021-Ohio-939 (2021).
 See supra notes 17-20 and accompanying text.
 Brief for Appellee at 6-8, State v. Maddox, 6th Dist. Lucas No. Cl-19-1253, 2020-Ohio-4702, (No. 2020-1266).
 State v. Maddox, 6th Dist. Lucas No. Cl-19-1253, 2020-Ohio-4702 (2020); State v. Halfhill, 4th Dist. Meigs No. 20CA7, 2021-Ohio-177 (2021); State v. Kimes, 5th Dist. Delaware No. 20 CAA 03 0015, 2021-Ohio-650 (2021).
 State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913 (2020).
 Brief for Appellee, State v. Maddox, 6th Dist. Lucas No. Cl-19-1253, 2020-Ohio-4702, (No. 2020-1266).
 Id. at 7.
 See Supra note 12 and accompanying text.
 See Supra note 51.
 See Supra note 40 and accompanying text.