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Arrests at OU can mean two trials

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It is not uncommon to hear about arrests on a typical Athens weekend.

You come into class Monday morning, you listen to your classmate recite the motions of his or her wild experience on Court Street Saturday night, with one last-minute attachment: “Oh yeah, and I was arrested that night.”

Little do many first-time offenders know that after their hearing at the Athens Court House, they will also be sent a letter by the Office of Community Standards for a violation of the Student Code of Conduct.

Yes, you can be found in violation of the law in two separate cases, for the same incident. The question has arisen if this instance can be considered double jeopardy.

Legality and Double Jeopardy

Double jeopardy is a defense that the defendant cannot be tried twice for the same charge, as defined by the Fifth Amendment. The question of whether university judiciary systems qualify as double jeopardy has come up countless times.

According to the Stanford Law Review, several U.S. Supreme Court cases made a clear distinction between civil and criminal cases. The article poses that because disciplinary hearings are civil in nature, double jeopardy does not apply. The Ohio University judiciaries system, the Office of Community Standards, acts as a civil agent for the institution and state of Ohio.

“Legally, it’s not double jeopardy,” said Patrick ‘Set ‘em free’ McGee, managing attorney for the Center of Student Legal Services for 13 years. “The basis of their argument is that you’re not being prosecuted, you’re simply being brought in to determine if you violated the contract,” McGee said.

The so-called “contract” is the Student Code of Conduct. Each student agrees by and signs the Student Code of Conduct when enrolling at Ohio University.

The Code is separated into two categories: Code A and Code B offenses. Of the most common violations: alcohol and drug abuse is classified as Code A, whereas possession of alcohol or marijuana is classified as Code B.

Because the judiciary system is seen as a civil court, students may be found in violation of the Code for an offense already determined by a criminal court.

Ardy Gonyer, acting director of the Office of Community Standards, said, “Our purpose is to be educational in nature and that’s the big difference between us and being a legal court system.”

“We have a more educational interest in students,” Gonyer said.

McGee said, “Students are in fact being punished for the same thing they are being punished for in the court system,” adding that universities have the legitimate right to determine suspension or expulsion, but “where they cross the line is when they say, ‘We are going to give you fines and make you do community service.’”

So the question does not lie in the legality of the judiciary system, but in its fairness to students and their rights.

Off-Campus Crimes and a Preponderance of Evidence

James, a sophomore at OU, who asked that his last name be withheld, said he was arrested off-campus earlier this year. “I was arrested at 10 Fest and was charged with underage possession of alcohol and possession of a fake I.D.,” he said. James then took the city’s diversion program, paid court fines and fees and did community service. He was then charged with three violations of the Code of Conduct.

Depending on the outcome of his case with the Office of Community Standards, James may also have to do more community service, be on probation, take an alcohol-related educational class and be charged with more court fines and fees. He says that he is currently unable to pay for the charges, and will have to work to pay them off.

When asked if he thinks the double jeopardy clause applies to his case, he said, “It is absolutely a double jeopardy system.”

“I am being punished already by the arresting officers and I think the school is overstepping their boundaries punishing students a second time for something unrelated to their campus or my educational career,” he said.

Molly Nocheck, director of Students Defending Students, a student organization dedicated to representing students when called before judiciaries, said she sees cases such as James’ very often.

“If you have a police report filed with you, you will be charged by the Office of Community Standards,” Nocheck said. “You could be fined $1,000 by the city and they won’t even care about that fact.”

When crimes are committed off-campus, the police department will often hand the case files over to the university. The Code of Conduct is phrased in a way that allows judiciaries to charge you with a violation for crimes committed not on-campus, even if the crimes were committed in a different state.

“We expect Ohio University students to be good citizens in the community, whatever community that is,” said Gonyer, elaborating that these measures are taken because Ohio University holds its students to a higher standard.

Nocheck explained that even if a student won their case against, or their case was dismissed by the criminal court, you will still be charged by judiciaries. The criminal court system, she said, uses “beyond a reasonable doubt” to determine guilt, whereas judiciaries uses a preponderance of evidence – evidence that can be proved 50.1 percent of the time.

“Essentially, what the officers say is taken as fact,” Nocheck said.

“There is also a glaring disregard that the Office of Community Standards has towards students’ legal rights that students can be charged with ‘failure to comply’ when they’re exercising their rights provided by the Constitution.”

Gonyer says he agrees that the university’s standard of evidence is lower than the legal court system, but the university still looks at the “weight and credibility of the evidence presented.”

“Quantity does not always equal quality,” he said.

Neutral Parties and Where Does the Money Go?

In a criminal court, every citizen has a right to a jury, comprised of his or her peers that have no stake in the outcome of the case. They do not benefit if the defendant is found guilty, thus making them a neutral party.

When brought before the Office of Community Standards, students do not have a right to a jury. Both administrative hearings and hearing boards are comprised of university appointed officials who determine guilt and sanctioning of the student found in violation. If found guilty, the student may be subject to fines as well as other punishments.

What gives the university the legitimate right to try a student for a crime in which the university has a potential vested interest in the outcome?

“We are a neutral party,” said Gonyer. “When I hear a case, I have no vested interest in the outcome. My interest is in making sure we are following our process and that we are affording that student all of their process rights that are outlined in the Code of Conduct and that we are being fair to that student and potentially, if there’s a student that [is] a complainant, to that student as well.”

Regardless, the university still incurs the money from student fines. Fines are used for student programming, Gonyer said, and the allocation of these funds are determined by a committee comprised of students and charged by Dr. Jenny Hall-Jones, dean of student affairs.

So it is to say that without these monetary punishments, much of student programming funds would need to come from tuition or the university’s general budget.

Nocheck weighed in on her view of the fines, saying the fines could potentially be used to fund the spring concert. “It seems as though they are just throwing this money into a pool,” she said.

Affordability and Deterring Recidivism

James, having already paid court fines and the fee of the diversion program, said he is unable to pay any additional fines from the school and will have to work to pay them off. In many other cases, students generally cannot afford to pay hefty fines and look to their parents for help.

Nocheck said, in her experience, she found that “students are usually unable to pay for the fine and fee and there has been a very small amount of cases where the office has waived those fines and fees.”

The decision to fine students first came in 2005, when a task force was convened to determine if monetary punitive punishments were necessary. The task force recommended fining students for a violation of the Code. The task force was reconvened in 2010 and determined harsher fines were needed.

“I’ll admit it is a lot of money. Two hundred and fifty bucks hurts,” said Gonyer. Gonyer noted that the fine has shown to deter students from recidivism, or becoming repeat offenders.

Before 2005, the rate of repeat offenders was 15 percent, and has dropped to four to five percent since enacting the fines.

“I think students care about their money and would rather be spending it on other things,” said Gonyer. “If they’re getting a $250 fine for being a potential harm to themselves for being intoxicated, they probably will think twice.”

Gonyer said that while he recognizes that this is not the case for every student, “One of our goals is to get students to be less risky in terms of their choices.”

Nocheck disagrees. “I don’t think that paying is teaching you anything,” she said. “I think that if we are going to pride ourselves on being a student-centered educational institution, I don’t know how they can have these punitive measures.”

The potentiality of punishments for crimes and violations of the Code for first-time offenders, though, has seen the opposite occur. Ohio University still maintains its notorious reputation for being a party school with a high rate of underage drinking.

The Office of Community Standards website statistics also show that mental or bodily harm to oneself, possession of marijuana and unauthorized use of alcoholic beverages has gone up by 74, 51 and 102, respectively, from the 2009-2010 school year to the 2010-2011 school year.

Fairness and Students’ Rights 

Is it fair that the university is able to try students for essentially the same crime after a legal court has already heard and tried the case, even though the system is technically legal?

There is no answer. Students may find it unfair, but the university will argue otherwise.

Students do agree to the Code of Conduct when enrolling as a student at the university, but they often suffer the consequences of their actions twice. The evidence presented in a criminal court may not be sufficient, but the university hearing process operates under a lower standard of evidence. The university receives the money obtained from court fines, but the money is then put back into student programming. And students may not be able to afford the fines, but evidence shows that fines are key in deterring students from committing the crime again.

The argument can be made for both sides.

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