ALLEN, et al. v. COLLINS, et al.

This F.A.Q. page does not constitute legal advice. The purpose of this page is to answer the most common questions that we receive about Allen, et al. v. Collins, et al., the lawsuit that was filed challenging the Ohio parole regulations. Please remember that the law is constantly changing. We are not a good resource for advice on how to prepare for your parole hearing. Due to the high volume of telephone calls, we cannot accept calls from inmates or their loved ones. If you have a question that is not listed on this page, please contact our office. We will update our website when there are future developments. To view selected pleadings in this case, please click here.

PAROLE LITIGATION

Who are “Old law” inmates?

Inmates sentenced prior to July 1, 1996, who remain subject to the jurisdiction of the Ohio parole board, are commonly referred to as “old law” inmates. Approximately 4,000 old law inmates remain incarcerated in Ohio.

What is “Senate Bill 2”?

Senate Bill 2 is often used to refer to the comprehensive changes to Ohio’s sentencing laws that became effective on July 1, 1996. Through these changes the Ohio Legislature accomplished a dramatic overhaul of the criminal sentencing in Ohio. The new statutes eliminated parole in Ohio by giving offenders flat sentences. As a result, most offenders sentenced after 1996 know exactly how much time they will serve in prison.

The Ohio parole board does not have authority over most inmates sentenced after 1996. These new sentencing statutes, however, are by their terms not retroactive to inmates who were sentenced prior to July 1, 1996.

What is Allen, et al. v. Collins, et al.?

Allen, et al. v. Collins, et al. is a lawsuit that was filed on July 24, 2008, by several old law inmates. The lawsuit alleges that the Ohio parole board uses harsher standards to determine whether an inmate should be released on parole than it did under prior versions of the parole standards. This causes the inmates to serve more time in prison that they would have under the standards in effect when they were sentenced. The purpose of the lawsuit is to determine whether Ohio violated the constitutional rights of old law inmates by retroactively applying the new parole standards.

The lawsuit does not challenge whether the parole board made correct decisions in an individual parole hearing.

What court is the lawsuit filed in?

The lawsuit is in federal court. The case is pending in the United States District Court for the Northern District of Ohio, Cleveland Division. The case number is 1:08-cv-1780.

Is this case a class action?

A lawsuit brought to court by one or more individuals on behalf of a category or class, of people is called a class action. This type of lawsuit is used when there are a large number of parties to a dispute who have common interests in the outcome. In a class action, the case is brought by representative individuals who represent many others, and the judgment in the case is binding on all members of the class involved in the dispute.

Since all old law inmates are similarly harmed by the frequently changing parole standards, we have filed a motion to certify the case as a class action, but the Judge has not ruled on it yet. Click here to read the Motion to Certify the Class.

How can I become a named or representative plaintiff?

We are not adding new old law inmates as representative plaintiffs at this time. If the case is certified as a class action, you will be notified. You do not need to become a representative plaintiff in order benefit from the case if we succeed.

When will the judge rule on the case?

There are several motions pending in the case. However, there is no timetable or deadline requiring the judge to rule by a certain date. We realize that time is of the essence and we will continue to advocate that the case move toward resolution as swiftly as possible.

Are there any hearings scheduled in the case?

No hearings are scheduled at this time. We do not have a trial date.

Are you suing for damages?

No. The case seeks reform. Not damages.

PAROLE LAWS

What is an “ex post facto” law?

Article 1, Section 9, of the U.S. Constitution prohibits the federal government from passing an ex post facto law. Ex post facto is a Latin term meaning “after the fact.” A law may be unconstitutionally ex post facto if it is retroactively applied and criminalizes actions that were legal when committed; or increases the penalty for a crime after it was committed; or changes or increases the punishment prescribed for a crime (like adding new penalties or extending terms); or changes the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the crime was committed. The Constitution protects individuals by denying to the Congress or state legislatures the power to punish people by passing ex post facto laws.

Is it illegal or unconstitutional for me to receive a “flop” of ten years?

Probably not.  Although lengthy continuances between parole hearings may seem very unfair, the Supreme Court has generally held that a parole board may increase the length between hearings without violating the Ex Post FactoClause.

In California Department of Corrections v. Morales, 514 U.S. 499 (1995), the prisoner challenged a California law changing the frequency of hearings from one year to three years.  He lost.  In Garner v. Jones, 529 U.S. 244 (2000), a prisoner challenged Georgia’s new law, which changed parole hearings from once every three years to every eight years. He lost because he could not show that the change in hearing frequency created a significant risk of extending the length of his prison sentence.

Do I have any recourse if I am given a ten year flop?

No.

Should I file my own lawsuit?

We cannot give you advice about your criminal appeal or habeas petition. However, if you are considering filing a civil lawsuit challenging the same parole standards that are being questioned in Allen, we urge you to contact our office before doing so.  Inmates who have filed their own lawsuits have generally had their cases dismissed and the rulings in those pro se lawsuits have been used against us by the State as it seeks to dismiss the Allen case.

Can Gerhardstein & Branch represent me at my parole hearings?

The firm is not currently representing inmates at their parole hearings. If this changes in the future the website will be updated.

What will the result be if you win the Allen case?

It depends. There are a number of possible outcomes. If the case goes to trial, a judge or jury will decide if the parole standards are unconstitutional. If they are held unconstitutional, then the parole process will have to be changed. In the event of a settlement before trial, all old law inmates will be notified so that their voices can be heard regarding any proposed settlement.

Will Old Law inmates be released if you win the case?

No. The Court will not order that individual inmates be released. If plaintiffs win the lawsuit, they will simply help establish revised parole standards.

Were the 2007 standards repealed? Are the current guidelines the same as the 1975 standards for parole? If so, does that mean that more inmates will be released?

On April 1, 2010 the parole board announced that it revoked the 2007 guidelines manual and replaced it with a 2010 parole handbook. The previous system – which relied in part on criminal history risk and offense scores to give inmates a range of months that they should serve – has been abolished. In its place, the parole board claims it is using a list of factors that must be considered in a parole hearing. These factors have been part of Ohio law since the 1970s. However, the handbook does not say which factors will be given the most weight. There are many policies that affect your chances of being paroled. They are listed in the back of the new 2010 parole handbook.

There are many unknowns about the new parole process. However, there is evidence that the 2010 handbook will have no effect on parole in Ohio. The Chair of the parole board has said that she does not believe the new parole process will result in more inmates being paroled. (See Columbus Dispatch article). When we learn more about how the handbook is guiding parole decisions, we will update the website.

RUMORS

I heard that Dotson filed a lawsuit challenging his denial of parole and as a result the court said he had to be released from prison.  Is this true? My case is just like his.

No. In the Dotson case, the question was whether it was proper, as a matter of constitutional law, to apply the 1998 Ohio parole regulations.  Mr. Dotson alleged that the 1998 parole regulations were ex post facto laws.  The Sixth Circuit Court of Appeals held that Dotson’s case against the parole board could proceed on that theory, and it was sent back to the district court to address that question. Dotson was paroled before the question could be answered.

By the time the Allen case was filed in 2007, the Ohio parole board had changed its regulations again. This time, the inmates alleged that it was ex post facto to apply all of the 2007 standards to their sentences.

I heard that the State of Ohio is going to start releasing lots of inmates because of a budget crisis. Will the new bills that are being proposed in the Ohio legislature affect old law inmates?

So far the answer is no. The legislature is considering making sweeping changes to criminal sentencing. However, the discussion so far has centered only on inmates who will are convicted of drug, property or non-violent offenses. The state is weighing the use of community-based options (such as halfway houses and electronic monitoring) and other ways to reduce the costs of incarceration. However, to date, there is no legislation that would apply to old law inmates.

I heard a rumor that Old Law inmates are being released by the end of the year. Is this true?

We are not aware of any plan that would release large numbers of Old law inmates by the end of 2010 or any other year. The parole board has a parole hearing process in place and it has publicly stated that new hearing regulations will not result in more inmates being paroled. Any suggestion that inmates are about to be released is pure speculation and highly improbable.