Ohio Issue 1 would lessen some drug crime penalties, emphasize treatment and send fewer people to prison.
These are positive proposals for people who want criminal justice reform — Ohioans who don’t believe enough change has come from Columbus in midst of an opioid epidemic.
Others, however, are concerned that people who should be behind bars will be free to roam the streets – a danger to society and themselves, not getting adequate help.
A recent poll from Baldwin-Wallace University showed a near majority of respondents favored Issue 1: 48 percent of voters supported it and 31 percent opposed it. The remaining were undecided.
Read on to learn more about what the amendment would do.
Q: How would Issue 1 reclassify drug crimes?
A: Under the Neighborhood Safety, Drug Treatment, and Rehabilitation Amendment obtaining, possessing and using drugs and drug paraphernalia can only be a misdemeanor.
People would be placed on probation for the first two times they were convicted in 24 months.
- Under current law, these crimes can be felonies.
- Felony convictions often carry prison time and fines. For instance, a fifth-degree felony – the lowest-level felony in Ohio — carries a maximum of 12 months in prison and an up to $2,500 fine.
- Drugs included in Issue 1 are heroin, fentanyl, methamphetamine and cocaine.
Q: Does Issue 1 release people from prison?
A. Issue 1, if adopted, requires sentence reductions of incarcerated people – unless convicted of murder, rape or child molestation — by up to 25 percent if they participate in rehab, work or educational programming.
Furthermore, people who were convicted before Issue 1 goes into effect could ask the court to reclassify their crimes as misdemeanors.
- The amendment specifies that money saved would go to substance abuse treatment programs, crime victim funds and adult and children programming for people in the justice system.
- The amendment contains specifics about how the money is spent and which rehab programs could qualify for grants.
- In just the first full year of implementation, supporter Policy Matters Ohio estimates Issue 1 could divert more than $136 million from the prison system to community programs, based on 2,668 people being diverted into their communities due to crime reclassification.
- Policy Matters Ohio estimates thousands of Ohioans could qualify for jobs that pay on average $4,700 more a year if they could get felonies reclassified as misdemeanors.
- Opponents dispute these figures. They say at best the state could see $24.7 million in savings in 2020. At worst, it will cost Ohio money.
- Opponents are concerned that the amendment doesn’t explicitly require treatment, meaning if funding doesn’t materialize as proponents estimate, then people won’t get the help they need.
Q: If Issue 1 helps keep people out of prison, how can judges keep them in line on probation?
A: Issue 1 proponents don’t believe people who violate probation for non-criminal acts should be thrown into jail.
The amendment requires judges to institute a graduated series of responses each time a criminal defendant violates probation but doesn’t break the law, such as community service or drug treatment.
- Judges would prepare the graduated guidelines, but the Ohio Department of Rehabilitation and Correction would ultimately approve them.
- Judges generally oppose their discretion being stripped, saying they build relationships with the defendants in their courtroom and can tailor punishment or probation revocation in a way that could be effective for the individual.
Opponent Cuyahoga County Common Pleas Drug Court Judge David Matia provided a theoretical example of a young person who had a drug problem but also experienced trauma growing up. Matia said he could take a chance on the defendant and not send him to prison – instead imposing a sentence of drug treatment, trauma therapy and GED completion.
“If that kid doesn’t show up to his probation officer, if he doesn’t get his GED, if he tests positive every week, what am I going to do?” he asked. “Have endless parole violation hearings every week, where all I can do is maybe have him do some community service work?”
Sometimes a threat of incarceration helps people turn their lives around, he said.
Ohio Chief Justice Maureen O’Connor has made a similar argument: That drug courts — with judges’ discretion to throw people behind bars if they’re not following their rehabilitation plan — will become ineffective.
Q: What about these fentanyl deaths I keep hearing about?
A: Fentanyl possession crimes would be part of Issue 1.
Fentanyl is 80 to 100 times stronger morphine, according to the DEA. Carfentanil is 100 times stronger than fentanyl, or 10,000 times stronger than morphine. The result is that people can overdose and die with small amounts. Over 13 people died a day in Ohio from drug overdoses last year – many involving fentanyl and carfentanil.
Currently, any amount of fentanyl possession is a felony. Many critics say the misdemeanor reclassification is why they oppose it.
Supporters, however, note that the prosecutors could always charge someone “caught with enough fentanyl to kill 10,000 people” — as a Mike DeWine TV ad says, a claim echoed by many Republicans — with drug trafficking, since no individual would need 10,000 doses unless they were going to sell some.
But that can be hard for a prosecutor to prove, said Fairfield County Common Pleas Presiding Judge Richard Berens, an opponent.
“If a person is stopped for a traffic violation and they find there’s an outstanding warrant, like not paying child support, then they search the driver and they find 15 grams of fentanyl,” he said, offering an example of where he thinks Issue 1 would fail. “There would be no evidence of drug trafficking there. Yet there would be a significant amount of fentanyl, given its highly dangerous nature.”
Q: Has anything like this been done in other states?
A: In 2015 and 2016 both “red” and “blue” states have reclassified all drug possession from a felony to a misdemeanor. Five states — Alaska, California, Connecticut, Oklahoma and Utah – enacted changes similar to what is proposed in Ohio Issue 1: No prison time until the third conviction and no drug types or weights were specified.
The left-leaning Urban Institute reviewed the states’ changes and released an Oct. 2 study with recommendations.
- In California, the prison population decrease was 15,000 fewer inmates and a $68 million savings in the first year. However, the state invested more money — $100 million – in grants for mental health, victims services and crime prevention.
- In Utah, the prison population decreased 9 percent. The state is required to invest $10 million in behavioral health programs and treatment staff training.
- In December only 134 people were in Connecticut prisons for drug possession, a 74 percent decline.
- The study recommended states move from prison to probation for many drug crimes, but they need to invest in supervision practices that evidence shows is effective.
- It also said states need to invest in treatment, to prevent waiting lists and delays for addicts who want help.
Seven months ago, the Pew Charitable Trusts released research that it said reinforced other studies showing stiff prison terms don’t “deter drug misuse, distribution and other drug-law violations. The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.”
Q: What are the philosophical differences behind the divide?
A: Issue 1 supporters and opponents have philosophical differences on how to approach drug offenders.
Among opponents’ concerns about Issue 1:
- Its message to children will be that drugs are not dangerous.
- Without drug court judges’ threat of throwing defendants behind bars, they won’t seek treatment or follow the court’s plan for rehabilitating their lives. This could sink them further into their addiction and will kill many Ohioans.
- The amendment is poorly written and will overwhelm the courts with lawsuits over its details such as people suing to obtain adequate drug treatment. Potential conflicts with other parts of the Ohio Constitution could also end up in court, such as the crime victim rights that Ohioans adopted into the Constitution last year in Marsy’s Law.
- Since there are already laws that keep low-level drug offenders out of prison, many of the drug offenders are behind bars because of multiple offenses or because they committed other crimes when caught with drugs. “We hear so often it’s a disease. We don’t put people in jail for diabetes or heart trouble…My response to that is diabetics don’t steal in order to get their insulin,” Chief Justice Maureen O’Connor said.
Among supporters’ arguments:
- Ohioans are already dying – over 13 people died a day last year from drug overdoses.
- The overdose death rate in Ohio continues to increase, showing the status quo isn’t effective.
- Addiction is a disease, and needs to be treated as such. Ohio criminal law does adequately reflect modern attitudes and medical research.
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Article originally posted on https://www.cleveland.com.