The New Firearms Penalties:

Possession is Bad, Use Is Worse

November 18, 1995

SB2 will provide new levels of sentencing to address different degrees of danger and aggression.

Through Senate Bill 2 (SB2), the Ohio legislature has attempted to "fine tune" the penalties for offenders who use firearms during the course of a felony offense. Since 1990, an additional three years of mandatory imprisonment may be imposed if an offender uses or possesses a firearm during an offense for which an indeterminate term of imprisonment can be imposed. The penalty increases to six years mandatory imprisonment if the weapon is a fully-automatic firearm or if the firearm is fitted with a silencer. SB2 will change the circumstances under which these penalties can be applied.

Under the current law, the Ohio Supreme Court has applied these mandatory imprisonment provisions to unarmed offenders who enter an unoccupied home and steal a gun during the burglary. So long as the firearm was operable, that offender is subject to the same additional term of mandatory imprisonment, even if he or she never used the gun or threatened anyone with it. As a practical matter, most trial judges feel that such penalties are too draconian when the firearm is not actually fired or used to threaten anyone, and firearm specifications are routinely dismissed, especially in cases of youthful offenders who commit burglaries and steal guns from an empty home.

SB2 will provide new levels of sentencing to address different degrees of danger and aggression. Mere possession of a firearm during the offense will make the offender subject to an additional year of mandatory imprisonment. If the offender displays or brandishes the firearm, or if the offender indicates possession and an intention to use the firearm, the additional three years of mandatory imprisonment will still apply. Use of a fully-automatic or silenced firearm will still carry an additional penalty of six years mandatory imprisonment.

Under SB2, police and prosecutors will have firearms penalties which can be more fairly applied. Few case in Wayne County involve an offender actually using a firearm. When those cases do arise, the three-year term of mandatory imprisonment will be diligently applied. In the vast majority of cases where the offender merely possesses a gun, a more modest term of one year mandatory imprisonment will be applied, thus providing the court with a lesser penalty which is consistent with the lesser degree of danger and aggression.

While SB2 appears to relax the sentences imposed on armed felons, it will actually increase the use of penalties which fairly reflect the level of violence shown by an offender.

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