A state law allowing prison officials to retain beyond their minimum terms offenders who violate laws or rules while incarcerated does not violate the constitutional rights of inmates, the Supreme Court of Ohio ruled today.

In a 5-2 decision, the Supreme Court affirmed two appellate court decisions finding the “Reagan Tokes Law” to be constitutional. The Reagan Tokes law, which took effect in 2019, imposes an indefinite prison term on those who commit serious felonies. Under the law, the offender is expected to be released once the minimum sentence is served, but the Ohio Department of Rehabilitation and Correction (DRC) can maintain an inmate’s incarceration up to the maximum sentence imposed by the court for committing crimes or breaking rules.

The Reagan Tokes Law is named for a 21-year-old student who was abducted, raped, and murdered in 2017 by a man on parole.

The Court consolidated the cases of two men, Christopher Hacker and Danan Simmons Jr., who were both sentenced under the new law in December 2019. The men were not involved in Reagan Tokes’ case.

Writing for the Court majority, Justice Joseph T. Deters stated the two men raised a “facial” challenge to the Reagan Tokes law and so had to prove that under no circumstances could the law be fairly applied. The pair failed to prove that was the case, raising only hypothetical situations in which an inmate might serve more than the minimum term for a minor prison rule infraction, the opinion noted.

Justice Deters wrote that at some point an inmate could possibly raise a claim that the DRC applied the law in an unconstitutional manner “should the facts of a specific case so warrant.”

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, and Melody Stewart joined Justice Deters’ opinion.

In a dissenting opinion, Justice Jennifer Brunner argued that the process for denying the inmates their release is constitutionally flawed. The law does not give inmates the appropriate means of challenging the DRC’s accusations that they have misbehaved, and the DRC under the law is both the prosecutor and the arbiter or judge of prison conduct, giving the DRC sole discretion to extend inmates’ time in prison, she wrote.

Justice Michael P. Donnelly joined Justice Brunner’s dissent.

Sentencing Law Revised
The Reagan Tokes law imposes an indefinite sentence for offenders convicted of first- or second-degree felonies when a life sentence is not an option. Under R.C. 2929.14, a trial court must choose a minimum sentence from a possible range. The minimum term dictates the maximum term an offender can receive, which is one-and-a-half times the minimum term. For example, if the trial court imposes a four-year minimum sentence, the maximum sentence will be six years.

R.C. 2967.271 states that “there shall be a presumption that the person shall be released” once the minimum term is served. However, the DRC can “ rebut,” or contest, the presumption that the inmate be released once serving the minimum term. The department must conduct a hearing to determine if certain misconduct should lead to a prison stay beyond the minimum term. The DRC can seek to maintain an inmate’s incarceration only up to the maximum term imposed by the trial court.

The law specifies the reasons that the DRC could seek to maintain the inmate’s incarceration beyond the minimum term, including violations of law or rule infractions that compromise the security of a correctional institution, a staff member, or an inmate and that “demonstrate the offender has not been rehabilitated.” To continue incarceration for any of these reasons, the department must also show the offender continues to pose a threat to society. The department can also keep an offender beyond the minimum term if the inmate has been placed in “extended restrictive housing” any time within a year of the release hearing, or if, at the time of hearing, the offender is classified at a security level 3 or higher on a scale of 1 to 5.

Offenders Contest Indefinite Sentences
Hacker pleaded guilty in Logan County Common Pleas Court to first-degree aggravated robbery with a one-year firearm specification. Prior to his sentencing, Hacker objected to an indefinite sentence imposed under the Reagan Tokes law. The trial court rejected his argument and sentenced him to an indefinite term of six to nine years that would begin after he served the one-year mandatory prison term for the firearm specification.

Hacker appealed his sentence to the Third District Court of Appeals, which affirmed the trial court’s decision.

Simmons pleaded guilty in Cuyahoga County Common Pleas Court to several offenses including a second-degree drug-trafficking offense. He too challenged the Reagan Tokes law, and the trial court ruled the new law was unconstitutional. The trial court imposed a four-year definite sentence, which the Cuyahoga County Prosecutor’s Office appealed to the Eighth District Court of Appeals.

The Eighth District reversed the lower court’s decision, finding the Reagan Tokes law is constitutional, and ordered Simmons to be resentenced under the new law.

Both Hacker and Simmons appealed to the Supreme Court, which agreed to consolidate and hear their appeals.

The Court stated that Hacker and Simmons collectively raised three constitutional challenges to the Reagan Tokes law. They argued the law violates their federal constitutional rights to due process and to a jury trial. Additionally, they argued the law violates the separation-of-powers doctrine because it allows an executive branch agency, DRC, to take on the judicial branch’s power of imposing a criminal sentence.

Supreme Court Analyzed Separation-of-Powers Claim
Justice Deters explained that under the separations of powers, each branch of state government plays a role in criminal sentencing. The legislative branch defines the crimes and fixes the penalties for crimes, the opinion noted, and the General Assembly carried out this role when it created the indefinite sentences in the Reagan Tokes law.

The judicial branch determines whether a person is guilty of an offense and can impose a prison sentence that is within the bounds of the penalties set by the legislature. The executive branch has the power to apply “prison discipline” when carrying out the Reagan Tokes law, the opinion noted. The question is whether the DRC’s right to discipline inmates interferes with the judiciary’s authority to determine guilt and to impose a sentence, the Court wrote.

Under the law, once the trial court imposes the minimum and maximum sentence, the offender’s prison term is set, the Court stated. The DRC can retain the offender past the minimum sentence, but only within the bounds set by the trial court, the Court noted.

“It does not impede the court’s exercise of its judicial powers,” the opinion stated.

High Court Examined Constitutional Rights Arguments
Simmons argued the Reagan Tokes law violates the constitutional right to a jury trial because the DRC is authorized to add prison time beyond the minimum sentence without a jury finding that the inmate’s action supports extending the prison stay.

Justice Deters explained the argument is based on the U.S. Supreme Court’s 2000 Apprendi v. New Jersey decision, which held that any increase in a penalty for a crime beyond the maximum penalty allowed under the law must be submitted to a jury and proven beyond a reasonable doubt.

The argument does not apply to the Reagan Tokes law, the Court stated, because the range of the sentence is set when the offender pleads or is found guilty of an offense. The maximum sentence is calculated once the sentence is imposed by a trial court. The DRC’s penalties that are based on behavior in prison do not change the range of the sentence set by the trial court. The offender does not have a right to a jury to consider additional penalties as long as the offender’s time in prison does not exceed the maximum sentence, the Court concluded.

Hacker and Simmons also argued their due process rights are violated because the law is vague, and the DRC hearing procedures are insufficient to protect their rights. The offenders argued the law is too vague because the DRC only has to show an offender “has not been rehabilitated” and “poses a threat to society.” They claimed the law does not give the inmates adequate notice of what circumstances may result in extending their incarceration.

The Court stated those phrases in the law “must not be read in isolation.” The law provides sufficient notice that infractions compromising safety, leading to physical harm, or the commission of crimes are the ones that could lead to the department maintaining an offender’s incarceration, the Court noted.

Additionally, the offenders argued their procedural due process rights are compromised because the DRC hearing process is inadequate and could lead to increased prison time for minor infractions. The Court stated that the offenders were challenging “the law itself, not to the policies used by the DRC in furtherance of the law.

“It bears repeating that the Reagan Tokes Law provides the offender with a hearing before his incarceration is maintained,” Justice Deters wrote.

Because the offenders raised a facial challenge to the law, “[t]he fact that the law ‘might operate unconstitutionally under some conceivable set of circumstances is insufficient to rend it wholly invalid,’” the Court concluded.

Law Violates Due Process Rights, Dissent Maintained
In her dissent, Justice Brunner wrote that when an individual’s liberty is at risk, the constitutional safeguards are “notice, a meaningful hearing, the right to counsel, and the opportunity to confront and cross-examine adverse witnesses. ” The hearing process of the Reagan Tokes law does not specify the contents or standards that must be applied at the DRC hearing to result in extending the stay of an inmate, she noted.

The dissent also added that the hearing provision, R.C. 2967.271, does not specify that the inmate will receive notice of the hearing to add more prison time, and has no provision requiring or permitting the inmate to be present.

“Those are obvious and significant defects,” Justice Brunner wrote.

The dissent noted that under the law, the DRC uses three separate procedures to determine if the department is going to consider extending the prison stay beyond the offender’s minimum time. The procedures used to place an inmate in restrictive housing or designate them with a higher security level have very few due process steps. The lack of due process may be justified for the DRC’s original purpose of providing “institutional security,” the dissent stated, but are not suitable “for a far more constitutionally significant purpose – whether to release an inmate on his or her presumptive release date.”

2020-1496 and 2021-0532. State v. Hacker, Slip Opinion No. 2023-Ohio-2535.

View oral argument video of this case.

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