Richard P. Kern Memorial Award Honoree Keynote Speech, August 8, 2023

Hello and thank you for the honor to be with you today. I am humbled and grateful to stand here and speak about the work of sentencing commissions, the legacy of Rick Kern, and learn from the thoughtful, informative conference presentations.The Rick Kern Award is the pinnacle of success—there isn’t a more coveted acknowledgment in our field. I can’t tell you just how surprised I was to learn I’d been nominated, let alone would be presented with it.The Kern Award recognizes individuals who advance this important work by enriching our body of knowledge, enhancing data-driven decision making, elevating sound policy, or providing the leadership that will carry these efforts into the future.The previous recipients of the award have been profound thinkers, action-oriented leaders, and thoughtful intellectuals recognized for their research and writing as well as their stewardship of sentencing commissions, the kind of people that need no introduction—they walk into a room and everyone already knows who they are.Like Rick, they pioneered the way for the rest of us, methodically and painstakingly working to enhance justice and guide the work of commissions. I am so sorry I didn’t have the chance to meet and know Dr. Kern. His vision and leadership changed the way we use data and information as decision-making tools.He was known as a brilliant scholar, a loyal state servant, and a tremendous advocate for sentencing guidelines, sentencing reform, and data-driven decision making. For those that may not know, the February 2013 issue of the Federal Sentencing Reporter was dedicated to Dr. Kern, and that issue described him as a “catalyst for justice.” While I didn’t know Dr. Kern, his spirit lives on in each of us that choose this work.Although I was appointed director of the Ohio Criminal Sentencing Commission in 2015, I’ve been participating in Ohio criminal sentencing commission meetings and work for nearly twenty-five years.My positions within the department of rehabilitation and correction afforded me so many opportunities—among them, working closely with the sentencing commission for many years before my appointment as its director.Dr. Kern’s accomplishments are many, and I am so honored to be recognized among you and in his name. As I was thinking about today and preparing remarks, I imagined the conversations he and I would have had.We’d be at an NASC [National Association of Sentencing Commissions] conference reception, each with a cold beer in hand, and from what I know about Dr. Kern, he may or may not have a growler on standby.I would be new in my role as director of the Ohio criminal sentencing commission with the rare opportunity to start fresh, curious, and energized in a tired, marginalized agency—consisting of one administrative staff person.He would assure me that NASC and its members could and would be eager to assist a commission comeback effort in Ohio.He would go on to suggest the challenges of sentencing demand not only that all jurisdictions have a sentencing commission as an essential permanent agency but also that in order to thrive and endure there must be bold, visionary leadership.He would astutely talk about strategies to transform the complexity of sentencing to an understandable, common language—telling the story with the context necessary to appreciate local control (which is kind of important in Ohio), while simultaneously transforming the work of the commission—and, importantly, managing expectations of the public and state of Ohio.We’d have another beer—or maybe two—or better yet, just get growlers, which we know he liked best. Then he’d kindly introduce me to other NASC members who would encourage me to do hard things and take chances—and it would be at that moment, as they say, I knew I’d found my people.I deeply admire all of you, and receiving the Kern award means so much—coming from my peers, who know the business, it’s not just some fleeting superficial acknowledgment because someone felt obligated.We’ve worked together on things like access to federal criminal history information and risk assessment. We established a Midwest-ish collaboration to share big ideas and how-to’s. I spent time talking about the value of sentencing commission work with folks from Missouri, West Virginia, California, and Michigan, to name a few. Together we orchestrated the wildly successful COVID workshop series with Professor Douglas A. Berman and his capable staff. With your help we crafted legislative language in Ohio that was enacted to define the Ohio Criminal Sentencing Commission as a criminal justice agency.Each one of you is talented and inspiring, and collectively the epitome of those who do good—representing the best in the business. The work we do is beyond any one person—thank you for giving me the opportunity to participate in this meaningful work in Ohio and the NASC.It is hard to find words to quantify your unknowing contributions since I was appointed director of the commission—I think most simply stated is that, when I had doubts and felt defeated, I looked to you to lift me up and you did!Over the last eight or so years Ohio began building a team and the future—it is too bad the entire team isn’t here, because individually they have made their mark in our great state.I’m grateful to Niki Hotchkiss, who is here, for her support and leadership, and to the members of the commission for trusting me to do a tough job and act on their behalf—always in the best interest of the commission. And to former Chief Justice O’Connor for never doubting the value of the commission, its work, and what we can accomplish.And importantly, I’m grateful to the Ohio General Assembly for its foresight to continually increase appropriations to the commission—in fact, during my tenure the budget of the commission has literally quadrupled—and allowed us to assemble the great team I just mentioned, as well as one for the future—the recent appropriation supports a double-digit team of staff.And just like that, thirty years goes by. . . . We stand the test of time, but we ask ourselves, are we really making a difference? what’s changed? what matters?The conference theme, “The More Things Change, the More They Stay the Same? Challenges Faced by State Criminal Justice Systems and Approaches to Reform, 1993 to 2023,” is especially meaningful—as you know, I recently retired after more than thirty-two years of state service. It’s been a time for reflection—not just for me, but for all of us.For NASC there are familiar faces and new beginnings—you can see that from the agenda and a panel featuring [the states of] Colorado, California, New Jersey, which also speaks to the value of enshrining sentencing commissions as an agency to perform bold tasks—status quo isn’t enough, and we just can’t settle for mediocracy. It reinforces that we learn from each other and, while differences may seem pervasive and distinct, the similarities are stunning and undeniable.If there was a title for my remarks today, it’d be “Persistence, Perseverance, Patience, and the Payoff,” with the tagline or hashtag “Ohio is a very tight company town”—a phrase that I love and have embraced since one of our longtime supporters, an interested member of the public, wrote it to me in one of her many emails.The work is rarely easy or seamless—sometimes there is real tension and frustration, but as in any good commission, there is compromise and collaboration and you continue to move forward together.One of the primary goals for every commission is to bridge the gap: help the public understand the dynamics of sentencing, assist practitioners in the administration of the law, and create consumable, plain-spoken resources.The Ohio Criminal Sentencing Commission was legislatively created in 1990 in response to four concerns: prison population and cost, overly complicated sentencing laws, racial disparity in sentencing, and lack of judicial discretion, all of which still ring true today . . . hence, the conference theme, right?In Ohio, like other states, the commission was and is directed to develop a sentencing policy that enhances public safety by achieving certainty in sentencing, deterrence, and a reasonable use of correctional facilities, programs, and services. Additionally, the sentencing policy shall be designed to achieve fairness in sentencing. The commission is also directed to evaluate the effectiveness of the sentencing structure of the state.The commission’s charge was to create a comprehensive sentencing structure that was proportionate, mindful of public safety, promoted uniformity across the state, retained reasonable judicial discretion, incorporated a full range of criminal sanctions, and matched criminal penalties with available correctional resources.Accordingly, as indicated in its first report, the Commission-recommended overhaul of felony sentencing was completed on July 1, 1993. The Commission decided against the grid-style matrix recommended by sentencing commissions in other states and the federal system, in favor of a determinate system based on judicial discretion and the concept of “truth in sentencing.”The prison population on November 1, 1993, stood at 40,274. The state had spent $850 million on prison construction between 1982 and 1993, and the annual operating cost of the Department of Rehabilitation and Correction was $750 million.The truth-in-sentencing scheme in Ohio, known as Senate Bill 2 [SB2], became effective July 1, 1996. The legislation established a type of determinate sentencing structure called a presumptive system that required minimum sentences with judicial discretion from a range of possible punishments.Many felt that SB2 was probably the most honest truth-in-sentencing scheme enacted in the country, because most other states defined “truth” as 85 percent of the truth.The changes in SB2 grew out of A sense that the public found indeterminate sentencing confusing. In practice pre-SB2, “6 to 25” never meant 25 and often didn’t mean 6, since parole eligibility came after about 4 years.The knowledge that the inmate’s actual time served was not determined by the elected judge in a public forum but by the parole board—an unelected body meeting in private.A sense that the parole board sometimes acted arbitrarily, as board decisions varied widely.A desire to give greater control over sentences to judges, so that all concerned—court, defendant, victims, and public—know that stated sentences equate more closely to time actually served.A desire to foster a broader range of correctional alternatives.A desire to make prison populations more predictable for fairness and budgetary purposes.Are these issues much different than the ones we face today? No. . . . Again, consistent with the conference theme. . . . the more things change, the more they stay the same.A decade into the implementation of SB2, prisons were crowded, there was a push toward a broader use of the former indeterminate sentences for high-level felons, and there was resounding recognition that the felony sentencing code had become more, not less, complex.In 2008, to help address prison crowding and preserve scarce resources, like many of you Ohio joined a group of more than twenty-eight states in the Justice Reinvestment Initiative (JRI). The goal was to develop strategies to improve public safety and control costs for taxpayers by prioritizing prison space for serious and repeat offenders and to invest some of the savings in alternatives to incarceration that are effective at reducing recidivism among low-level offenders.By 2011, Ohio faced record budget deficits and record prison populations. Ohio prisons were holding 50,500 inmates, which is 6.5 times the number held in 1974 and 31 percent over its rated capacity, with about 12,500 more inmates than the prisons were built to hold.The fiscal strains of burgeoning prisons and costs are pervasive. Between 1990 and 2010, corrections expenditures grew by 400 percent, with only Medicaid outpacing their growth in state budgets. Ohio had the seventh fastest-growing prison population in the nation between 2005 and 2015, while at the same time, the Bureau of Justice statistics reported that Ohio ranked third in the nation for the number of people on probation: 1 in 48 adults on probation.In 2017, Ohio—again, like some of you—embarked on JRI 2.0; this time, the Ohio Criminal Sentencing Commission was the lead agency. There was and is no denying that the state’s criminal code has become increasingly complex and fraught with provisions that are exceedingly difficult to administer.Consider that our quick reference guide for felony sentencing is more than seven pages long and, remarkably, isn’t inclusive of all detail necessary for application. And further, one provision alone, 2929.14 Definite Prison Terms, is 13 pages long, 100 paragraphs, nearly 8,000 words, and includes 85 “ifs.”Just like the theme for NASC this year, after more than 25 years of modifying and amending SB2’s sentencing structure, it’s time to reflect, look back, and forge ahead.In Ohio it is time for an overhaul of criminal sentencing structure, starting with sentencing policy. As retired judge Robert Nichols opined, “We have arrived at the point where the statutory regimen that governs criminal justice, from the criminal statutes themselves to the sentencing structure they support, is onerous, unworkable, unpredictable, internally inconsistent, and cumbersome. This results in uneven and incongruent sentences, costly and frivolous appeals, and lack of finality in the disposition of individual cases.”1I think we’ve all experienced the conundrum created by individual changes that seem logical enough, yet the complexity and costs increase significantly over time—the cumulative impact generally reflects heightened sensitivities of an individual interest group, rather than careful public policy analysis. In other words, as stated by retired Ohio Criminal Sentencing Commission Executive Director David Diroll, “Exceptions often swallow rules and make it difficult to read and apply the basic statutes.”2 As such, it is the duty of commissions to transform the complexity of sentencing to an understandable, common language. That transformation can only occur, just as Rick Kern laid out so many years ago, through a data-informed approach. A data-informed approach contributes to sound state policy, which leads to maximized public safety, a reduction in recidivism, and equalized justice.But first, the data must be available, and shareable, from all points in the criminal justice system—a goal that transcends any one branch of government because it is the only objective way to make sure what we’re doing works and is (or isn’t) achieving the intended result(s).Sentencing and criminal justice commissions, by their nature, and the leadership of those guiding them gather the courage to manage expectations, allow voices to be heard, seize opportunities, and achieve meaningful outcomes by crafting genuine, real world, and measurable reform.Commissions are generally ordinary people charged with an extraordinary public service. We are the ones that must rebuff bureaucratic paralysis—everyone doing something and nothing getting done.As noted by our esteemed colleague Mark Bergstrom in an article in 2020 for the Federal Sentencing Reporter titled “Good Enough for Government Work: Sentencing Lessons Learned from Rick Kern,” the duty of Commission members “is to bring real-world differences—these differing political, philosophical, and experiential views—to the table, and then to reach consensus collectively around a policy that provides for the common good.”3 He went on to say that in the Amish of the region where he was raised that would be referred to as “being in the world but not of the world,” but for Commission members it is about arriving at data-driven, evidence-based policy solutions despite an increasingly divisive political environment.4The work commissions do is dedicated to enhancing justice and ensuring fair sentencing. Commissions do their best work through an evidence-based, data-informed approach—one in which policy and statutes can evolve as understanding of best practices grows. To that end, in Ohio we have put forth significant effort to reduce our data deficit and to effect positive change in our sentencing laws, which are myriad and complex.As Mark said in his article, being “good enough for government work” is getting the job done well without letting the perfect be the enemy of the good. We shouldn’t be discouraged that the criminal justice system is beset by imperfect data, debatable assumptions, limited resources, and the pressing need to make decisions now.In closing, there is much more to a sentence than a headline or a number. And you also may have noticed, there is no elevator speech for this work—it is painstakingly complex. Some days it truly feels as though your best isn’t good enough, but I assure you that it is.Dr. Kern and all the past Kern Award recipients have given us a roadmap—demonstrating what works, us to learn from their us how to and about what they do in an increasingly difficult we can forge the toward the in state work that is public in the justice system, and the of our is that for some of us the only way to out of an of and efforts is for our commissions to the data and lead the The value of information and the to implementation be It is essential for for true reform, and for everyone in this room and every member of the public in our data and information to a and more criminal justice system and people who need into effective thank you for this great know, I am I am and I am a public and member of a I do to say that the here are They are not those of the Ohio Criminal Sentencing its or its to all of award each and every one of dedicated to making a in We from different of the country, but we and support each other and our that, I be enough to this And thank you for is especially as you what most all of us to and an probably already too long, but what the the of state government for more than and not or I to share with you some things I you so much for this our and importantly, your time today. As we on the past thirty years of of where you may be in your commission I you all the best to and what’s to be new