Tuesday’s ballot issue aimed at reforming Ohio’s drug laws, reducing the state’s prison population and making millions of new dollars available for drug treatment should be part of the state constitution because the Republican-dominated Legislature has failed to address longstanding problems, supporters of the initiative say.
Opponents argue Issue 1 could have unintended consequences, would tie judges’ hands and would be difficult to fix if embedded into the constitution. But Stephen JohnsonGrove, who helped write the initiative as deputy director of the Ohio Justice & Policy Center, says it will save Ohio $100 million a year.
“People are saying, ‘Enough is enough,’” JohnsonGrove said. “We represent the voice of Ohioans: crime victims and people suffering from addiction and families and communities that have been harmed by the overuse of incarceration. They are demanding changes the status quo won’t make.”
Over the past eight years, Gov. John Kasich and state lawmakers made reducing the prison population a priority but have seen limited success. The overall prison population was 49,345 last month, compared with 50,670 in January 2011, when Kasich took office.
Efforts to reduce the number of first-time, non-violent offenders being sent to prison have collided with pushback from some prosecutors and judges. That has dovetailed with the impact of the opioid crisis, which has swamped the criminal justice system.
Ohio’s judicial organizations have lined up to oppose Issue 1, including the Ohio Judicial Conference, Ohio State Bar Association and Ohio Prosecuting Attorneys Association.
Common Pleas Judge David Matia, one of two judges presiding over drug court dockets in Cuyahoga County, which includes Cleveland, said making low-level felony drug cases misdemeanors will take away judges’ threat of prison to convince people to get drug treatment. Matia is also critical of the amendment’s provision that limits judges’ ability to make people more accountable when they have violated probation.
“There’s just a lot wrong with it,” Matia said. “It’s not modifiable because it’s in the constitution.”
Matia and other opponents question whether Issue 1 would reduce the prison population given that around 2,700 — just over 5 percent — of inmates are locked up for drug possession, a number that includes those convicted of more serious first-, second- and third-degree felonies. Matia also repeated the criticism that giving prisoners 25 percent sentence reductions for “working in the kitchen” will send violent people back on the streets to victimize more people.
Issue 1 proposes to do the following:
— Make fourth- and fifth-degree felony drug possession charges misdemeanors.
— Prohibit jail time for misdemeanor possession cases until a person’s third offense within 24 months.
— Allow people previously convicted of felony drug possession to petition courts to have their charges reduced to misdemeanors.
— Require sentence reductions of as much as 25 percent for prisoners who work or participate in rehabilitation programs. Those convicted of murder, rape and child molestation would not be eligible for reductions.
— Require judges to take other steps before sending probation violators to prison.
— Put savings from the reduction of prison populations into state-administered drug treatment and crime victim programs.
In Fayette County, public officials are seemingly unanimous in their opposition to Issue 1.
Fayette County Sheriff explains reasoning for opposition
Fayette County Sheriff Vernon Stanforth opposes Issue 1 for a number of reasons. For one, he doesn’t believe the changes called for in the proposition should be constitutional amendments, he thinks any such changes should be made by the legislature, saying, “That’s what the job of the legislature is to do to develop laws, and if they aren’t developing laws you get legislatures who will, plain and simple.”
He said, “Right now we’re in the midst of this crisis and they think this is gonna be the answer,” but in actuality he believes the amendment will lead to increased drug possession due to a lack of perceived consequences.
Stanforth also expressed concern that there will be many ripple-effect consequences if Issue 1 is passed. For example, he said that people who were previously barred from owning guns due to felony drug convictions could potentially have these charges reduced to misdemeanors, and then legally purchase firearms. He said he does not believe that allowing people who have made such poor decisions in the past to own guns is a good idea.
Stanforth also said Issue 1 does not allow enough time for treatment programs to be established and, currently, there is not enough treatment programs available for everyone.
“We can’t get 50,000 people into treatment programs overnight… it’s impossible for us to do that,” he said.
Another concern for Stanforth is that with no threat of prison time, it will be harder, or impossible, to convince people who are busted for drug use to turn over on their dealers. Often, this sort of information is what allows law enforcement to take down the leaders of drug operations.
In addition, Stanforth said, “I think our property crimes will go through the roof” because more individuals who are desperate for drug money will be out on the streets.
Stanforth conceded that “there’s elements in this that are good,” in particular, he does agree that the criminal justice system needs more treatment and rehabilitation programs, but, he said, “I think those are elements that can be addressed through the legislature.”
In general, he said, “This will have a profound impact on how we do business in the state of Ohio” and “it’s going to cripple the criminal justice system.”
Judges unified in opposition
Judges around the state are also standing firm in their opposition to Issue 1 by explaining what they say are its dangers.
Ohio Supreme Court Justice Paul Pfeifer is urging Ohioans to listen carefully to their judges as well as their prosecutors, sheriffs, and drug treatment professionals who have joined together in opposition.
“These are the public officials you have chosen to administer justice and protect your families and community,” Pfeifer said. “Your judges have studied the amendment carefully before putting their personal reputations on the line by asking you to vote no on Issue 1.”
Among the dangers, according to Pfeifer: “This proposed amendment would cement in the Ohio Constitution permanent reductions in the penalties for all current crimes except for murder, rape and child molestation. It would severely limit the power of judges to sanction all felons, both violent and nonviolent, for repeated violations of the terms of their probation.”
Chief Justice Maureen O’Connor acknowledged that much of the public discussion about Issue 1 is focused on the provisions that would eliminate incarceration for possession of all dangerous drugs, including fentanyl, heroin, cocaine, date rape drugs and meth, until a third conviction within two years.
“Threat of incarceration is the essential motivating tool used by judges to successfully persuade addicts to get serious about treatment and recovery,” O’Connor said. “Passage of Issue 1 would leave our judges and drug courts virtually powerless to guide addicts into drug treatment. Issue 1 will result in less treatment and increases in overdose deaths.”
Locally, Fayette County Common Pleas Court Judge Steven Beathard and Fayette County Probate/Juvenile Court Judge David Bender joined the chorus of judges stridently opposing the amendment.
“The proponents of this are basically saying that Ohio is hard on drug addicts, and that the legislature is apparently inept and inefficient, and not able to address what they keep calling an opioid epidemic. And that’s simply not true. We see it every day,” said Beathard. “The proponents are talking about drug courts. Every court in the state of Ohio is a drug court, whether it’s officially certified by the Supreme Court or not, we are all drug courts. In my court, 80 percent of my cases involve drugs or have a drug overlay. It’s four out of five cases.”
Beathard added that for many addicts, prison or the threat of prison is the bottom for them and a motivating factor to change their fortunes.
“You have to have this discretion and available sanctions…you have to have the stick, you can’t have the carrot. This amendment has a lot of carrots. If you’re a drug addict you’re guaranteed rehab. But there’s no sanction if you don’t. The claim is that reduced money from the DRC budget will then come to the local communities to make better facilities and increase treatment options to which no one will go. Why would they have to go? They just don’t. There’s nothing in this amendment as far as treatment that’s not already in place in every court. Every court in the state of Ohio deals with this every day.”
Judge Bender said it’s extremely difficult to get addicts to go to treatment and/or stay there as it is.
“You have to have a club over their heads and the club is usually jail. Most of the rehabs I deal with won’t take you when you’re still high on drugs, and the only places they’ll have to dry out unfortunately is the Fayette County Jail or the JDC over in Chillicothe,” Bender said. “You let them sit there for seven or 10 days, they’re clean, then you can send them to rehab. Under this proposal we couldn’t do that. There are no consequences if this passes. The biggest thing we need in my court is to get the parents to go to rehab so they can get their faculties back and take care of their kids. I have a hard time incentivizing them to do that.”
Bender added that drug penalties have already been greatly reduced over the last decade-plus.
“Now it’s presumed community control for the low level offender,” he said. “It didn’t used to be that way. The legislature keeps finding ways to keep people out of prison. If you talk to the county commissioners and the city council, they have to be cringing because the costs to Fayette County…it’s not reimbursed by the state or anybody…it’s going to go up enormously.”
Beathard said that if Issue 1 passes, it will create a chaotic situation throughout the county because of a lack of options.
“I mean I threaten addicts in open court every day, I have that discourse every day. Here it is, it’s rehab or prison. It makes no difference to me and they can choose right there. We can’t supervise everybody,” he said. “If it passes, it’s going to be chaos because there’s no stick, absolutely no stick. If the goal of Fayette County is to keep drug trafficking out of town and help the addicts, then Issue 1 is not the answer. It’s going to have the opposite effect. You’re going to have a town full of addicts breaking into your car, breaking into your garage, and nothing you can do about it. On a local level it’s going to be chaotic.”
In a guest column written by Fayette County Prosecutor Jess Weade recently published in the Record-Herald, Weade made clear that he agrees with the judges on Issue 1. He wrote: ” Nothing about Issue 1 is going to make the drugs that are used and trafficked in our community cost less. Removing the penalties for jail will embolden users and traffickers. Thus, the need for addicts to obtain money for drugs is not going anywhere. The thefts from family, the stolen jewelry, the stolen guns, the forgeries, the burglaries, the robberies, the busted car windows, and the other crimes that people commit to get money for drugs will not be reduced. If anything, the cost to us as a society will go up. Nothing about that makes our neighborhoods safer.”
County Commissioners, City Council pass resolutions in opposition to Issue 1
The Fayette County Commissioners and Washington C.H. City Council both recently passed similar resolutions against the issue, citing “disastrous results” if it passes.
“Whereas, Issue 1, if passed, will have disastrous results for the residents of Fayette County and the State of Ohio; and,” the resolution reads. “Whereas, those results include exposing Ohioans to an increase in substance abuse activity and criminal behavior as there will be little to no consequence for engaging in such; and….Whereas, Fayette County would incur significant costs for the court proceedings necessary to comply with Issue 1’s retroactive application that would require courts to re-sentence and/or release any individual convicted of an offense of possession, obtaining or using drugs.”
Additionally, the commissioners state in the resolution that such lenient laws on lethal drugs will attract those with nefarious and criminal intentions to Fayette County and Ohio. The commissioners also said that Issue 1 would “virtually eliminate drug courts” which help to effectively treat substance abuse.
“Now therefore it be resolved that the Fayette County Board of Commissioners declares its opposition to Issue 1 and they strongly encourage the voters of Fayette County to vote no on Issue 1.”
The city’s legislation states:
Whereas, Issue 1 mandates that the possession of Fentanyl, K2, Cocaine, LSD, Methamphetamines, Heroin, and other controlled substances be classified as a misdemeanor with mandatory probation; and
Whereas, the additional misdemeanor classifications will further financially burden the City of Washington Court House and or Fayette County and other communities and counties in Ohio already faced with significant funding reductions; and
Whereas, such lenient laws on lethal drugs will attract those with nefarious and criminal intentions to the City of Washington Court House, Fayette County and the great state of Ohio.”
Whether for or against, voters will have the opportunity to decide on this important issue and other races and issues at Tuesday’s general election.
The Associated Press contributed to this article.