State v. Thompson, 726 N.E.2d 530 (Ohio Ct. App. 1999)

Defendant, Thompson, an inmate at the Southern Ohio Correctional Facility (SOCF) living with HIV, allegedly threw a cup full of feces at a nurse, hitting her hair, face, arms, chest, and left leg, and also ruining medication she was distributing. Thompson was found guilty by the SOCF Rules by a Rules Infraction Board (RIB), given 15 days in disciplinary control, and ordered to pay for costs of an HIV test for the nurse. Thompson was subsequently found guilty in trial court for Harassment by Inmate and sentenced to nine months. On appeal, Thompson argued his RIB proceeding amounted to a criminal penalty, precluding a state charge under double jeopardy principles.

The Court of Appeals of Ohio affirmed the conviction, ruling the RIB sentence did not amount to a criminal penalty. Finding the legislature intended RIB punishments to be civil in nature, the Court weighed seven (Kennedy) factors in determining punishment was not sufficiently punitive so as to overrule that assumption. The factors are: (1) “whether the sanction involves affirmative disability or restraint,” (2) “whether it has historically been regarded as punishment,” (3) “whether it comes into play only upon a finding of scienter,” [intent or knowledge of wrongdoing] (4) “whether its operation will promote the traditional aims of punishment – retribution and deterrence,” (5) “whether the behavior to which it applies is already a crime,” (6) “whether an alternative purpose to which it may rationally be connected is assignable for it,” and (7) “whether it appears excessive in relation to the alternative purpose assigned.”

This holding evinces a high degree of deference to correctional institutions in handing out punishments deemed to be civil. Though courts must still undertake Kennedy balancing, it is difficult to see many punishments overturning this deference. Notably, the Third and Eleventh Circuits have both granted similar deference to prison disciplinary sanctions.