COLUMBUS, Ohio (WCMH) – An Ohio Supreme Court justice and victim advocates are fighting to put an end to plea deals that are not based on facts, claiming the practice is common in sexual assault cases.
Justice Michael Donnelly, who has served on the state Supreme Court since 2019, has been advocating against what he calls “factually baseless pleas” for eight years. These instances take place when a defendant pleads guilty to a lesser crime that does not match up with the original charge. Donnelly said through his research, he has found nearly 1,000 examples in Ohio.
Factually baseless pleas often happen in sexual assault cases. Rape, a first-degree felony, is frequently pled down to the crime of aggravated assault, a fourth-degree felony, according to Donnelly. Aggravated assault occurs when someone causes “serious physical harm” to another while “in a sudden rage or passion” that was provoked by the victim.
“It sounds very serious, but it really has nothing to do with the crime of rape,” Donnelly said. “There’s a mitigating element that somehow the victim provoked the attack, and that’s why it’s a low-level felony, is probationable, and it’s only punishable by six to 18 months in prison.”
Plea deals are an agreement between a prosecutor and a defendant, where the defendant agrees to plead guilty to a charge, therefore avoiding a trial and often receiving lighter penalties. A judge has the power to accept or reject a deal. Plea bargaining accounts for 95% of state convictions in the country, according to the American Bar Association.
Donnelly emphasized he is not critiquing plea bargaining in general, noting there are good reasons why a prosecutor may want to consider a plea deal, including concerns about the trauma the victim may face going through a trial and the risk of losing the case. However, he believes the plea needs to resemble the facts of the crime.
“You could plead a rape down to a crime of what’s known as gross sexual imposition or sexual battery or down to sexual imposition, which is a misdemeanor, and it would still retain a factual basis,” Donnelly said.
Ohio law requires victims have the opportunity to give input on a plea deal, with prosecutors ultimately holding the power of whether to offer it. However, Elizabeth Well, legal director at the Ohio Crime Victim Center, said in her experience victims are often not given a full explanation of the lesser charge and therefore do not actually understand the plea deal.
“If someone pleads guilty to aggravated assault after raping someone, they’re not going to be on a sex offender registry,” Well said. “They’re not going to have any restrictions on being able to live near a school. All of those kinds of collateral things that keep the community safe will not be in place and victims don’t understand that.”
Donnelly said an individual having a criminal record with an inaccurate charge can have a ripple effect, that impacts those beyond the offender and victim.
“Future sentencing judges who are trying to gauge whether someone’s a threat to public safety, they rely on the person’s record as being accurate,” Donnelly said. “Police doing investigations rely on those outcomes being accurate. Our employers in this state who are hiring people who do criminal background checks, they are relying on the information as being accurate and if it’s false it leads to poor decision making.”
Factually baseless pleas are “rampant” in Ohio according to Donnelly, however, he has been in contact with academics in other states and believes this is going on across the country. Donnelly served as a judge on the Cuyahoga Court of Common Pleas from 2005 to 2018, and during that time he said he refused to accept pleas that were not based on facts.
“These pleas didn’t happen in my courtroom because if the plea didn’t resemble what they [originally] charged him with, I would simply ask the prosecutor to state the facts that support that charge, and if they didn’t add up, I didn’t accept the plea,” Donnelly said.
Before being elected to the Ohio Supreme Court, Donelly petitioned the Ohio Judicial Conference to require felony charges in plea bargains to be based on the facts of the crime. The group recommended the issue to the state Supreme Court, who rejected the proposal in 2016 in a 4-2 vote.
Donnelly believes prosecutors should have to state facts on the record that support what the defendant is admitting to in order to resolve a case. He said he has been in contact with a state lawmaker who expressed interest in putting forth a bill to combat factually baseless pleas. Donnelly’s term as an Ohio Supreme Court Justice will come to an end on Dec. 31, since he lost his reelection bid in the Nov. 5 election.
Well also wants to see changes to the system, stating she believes prosecutors should have a mandatory requirement to ensure the victim understands what a plea means before the victim gives their input.
