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What must an inmate do to be granted Judicial Release?
Which types of offenses are not eligible offenses?
What about mandatory sentences and Judicial Release?
What do you recommend an inmate do prior to filing for Judicial Release?
Is judicial release only available to those serving their first prison sentence?
Why should an inmate hire an attorney to represent him or her in filing for Judicial Release?
What is Judicial Release?
Judicial release is a mechanism by which the sentencing court may release an inmate from prison prior to the completion of his or her sentence. The released individual is then placed on community control sanctions (i.e., probation).
What must an inmate do to be granted Judicial Release?
An inmate must be “eligible” to file a Motion for Judicial Release. There are several prerequisites to being an “eligible” inmate. First of all, the offense may not be of a certain nature (see below). Second, the inmate must have served a certain statutory minimum period of time prior to filing. Third, the inmate must have served all “mandatory” portions of his or her sentence. Once those eligibility requirements have been met, a Motion may be filed and considered by the sentencing court. It is important that the Motion for Judicial Release be as thorough as possible. The Motion must be provided to the prosecutor, who is required to contact the victim of the offense and may oppose the Motion. The sentencing court may deny the Motion for Judicial Release without a hearing. However, before granting judicial release, the sentencing court is required to hold a hearing. The inmate has a right to attend the hearing on his or her Motion for Judicial Release. Prior to the hearing, the sentencing court is required to contact the head of the Ohio Department of Rehabilitation and Corrections for a detailed report on the inmate and his or her conduct while imprisoned. At the hearing, the inmate, as well as the prosecutor, will have the opportunity to present evidence. The sentencing court will then issue a ruling within 10 days of the hearing. If the Motion is denied without a hearing, the inmate may file another Motion in the future, unless the sentencing court denies the Motion “with prejudice”. If the Motion is denied after a hearing is held, then the sentencing court may not consider any subsequent motions for that eligible offender. If the Motion is granted, the sentencing court will order the release of the inmate and place the person on community control sanctions under the supervision of the sentencing court’s probation department. If the released inmate fails to abide by the terms imposed by the sentencing court or the conditions set by the probation department, a violation of the person’s judicial release may be filed, resulting in the prison sentence being re-imposed.
Which types of offenses are not eligible offenses?
A sentencing court may not grant judicial release to an offender serving a prison term for the following offenses:
- Bribery
- Intimidation
- Retaliation
- Obstructing Official Business
- Obstructing Justice
- Theft in Office
- Having an Unlawful Interest in a Public Contract
- Engaging in a Pattern of Corrupt Activity
- Tampering with Records (if public official and related to his/her duties)
- Intimidation of Attorney, Victim or Witness in Criminal Case or Delinquent Child Action Proceeding (if public official and related to his/her duties)
- Perjury (if public official and related to his/her duties)
- Tampering with Evidence (if public official and related to his/her duties)
- A violation of an existing or former municipal ordinance or law of this or any other state or the United States that is substantially equivalent to any of the above
- A conspiracy to commit, attempt to commit, or complicity in committing any of the above or an offense substantially equivalent to any of the above
What about mandatory sentences and Judicial Release?
If the inmate’s entire sentence is a mandatory sentence, then the inmate is ineligible to file for release. If the inmate is serving a sentence consisting of both mandatory and non-mandatory periods, then the inmate is not eligible to file a Motion for Judicial Release until the mandatory portion of his or her sentence has been completed and the minimum period of the non-mandatory portion of the sentence has been served.
For a non-mandatory sentence (or non-mandatory portion of a sentence running consecutive to a mandatory sentence), how long must an inmate wait before filing a Motion for Judicial Release?
The period before one can file is based upon the aggregated (total) non-mandatory prison term ordered by the sentencing court.
- If the aggregated non-mandatory prison term or terms is less than 2 years, the eligible offender may file the motion no earlier than 30 days from the date that he or she was delivered to prison.
- If the aggregated non-mandatory prison term or terms is greater than 2 years but less than 5 years, the eligible offender may file the motion no earlier than 180 days from the date that he or she was delivered to prison.
- If the aggregated non-mandatory prison term or terms is 5 years, the eligible offender may file the motion no earlier than 4 years from the date that he or she was delivered to prison.
- If the aggregated non-mandatory prison term or terms is more than 5 years but not more than 10 years, the eligible offender may file the motion no earlier than 5 years after the eligible offender is delivered to prison.
- If the aggregated non-mandatory prison term or terms is more than 10 years, the eligible offender may file the motion no earlier than the later of the date on which the offender has served ½ of his prison sentence or 5 years.
Does being held in jail count towards the minimum aggregated non-mandatory period that must run before release may be filed?
No. Although, an offender must be given jail time credit for all days incarcerated in a given case, the days spent in jail do not count towards eligibility for release. The relevant period for determining when an eligible offender may file a Motion for Judicial Release begins the date he or she arrives at the Ohio Department of Rehabilitation and Correction, i.e., his or her “admission date”.
What do you recommend an inmate do prior to filing for Judicial Release?
An inmate would be wise to avoid any disciplinary problems while incarcerated, as an inmate’s disciplinary record must be provided by the Ohio Department of Rehabilitation and Correction to the sentencing court prior to any hearings on judicial release. Any disciplinary proceedings, while incarcerated, will have a detrimental impact on the sentencing court granting release. I would also recommend that the inmate participates in and complete as many prison programs as possible, whether the programs pertaining to education, vocational training, employment, treatment, or other rehabilitative activities.
Is judicial release only available to those serving their first prison sentence?
No. It is more likely to be granted to individuals serving their first prison sentence, it is possible for release to be granted to individuals who have served one or more prison sentences prior to their present term of imprisonment.
What if an inmate is granted judicial release and then violates those terms and is sent back to prison to serve the remainder of his or her sentence. Can that person file another motion after the minimum aggregated on-mandatory period (stated above) has passed?
No. Judicial release may only be granted one time in any given case.
If release is granted, can the sentencing court require the offender to remain on community control sanctions (i.e., probation) past the date that the prison term would have expired?
Yes. In fact, the sentencing court may place the offender on community control sanctions up to 5 years the person is released from prison through the granting of judicial release.
Why should an inmate hire an attorney to represent him or her in filing?
Unlike the trial stage of the case, the inmate carries the burden of proving that Judicial Release should be granted. Thus, the Motion should be thorough and well-written. Furthermore, the Motion may be overruled without a hearing. Although, inmates whose Motions have been denied without a hearing may file subsequent Motions for Judicial Release, having a history of poorly written Motions may have a detrimental impact on the likelihood that a subsequent Motion be granted. Additionally, in many counties in Ohio, the courts rarely grant this. To increase one’s chances of success, it is important that the best, most-detailed motion be filed the first time.
