By Andy Chow
Posted November 5th 2018
(PHOTO: SHAKYRA DIAZ, MANAGING DIRECTOR CRIME SURVIVORS FOR SAFETY AND JUSTICE)
Voters in Ohio will see one statewide issue on the ballot. Supporters have said this constitutional amendment will steer non-violent drug offenders away from prison and into treatment. But opponents claim it will dismantle the work Ohio has already done to curb the opioid epidemic.
Issue 1 would mandate that drug possession and drug use be a misdemeanor, not a felony. So if a non-violent offender is caught with or using drugs like fentanyl, heroin, meth and cocaine, they won’t serve jail time, unless it’s their third offense in two years.
Issue 1 would also increase sentence reduction credits to 25%. So some inmates could get released early by participating in rehabilitative, work, or educational programs. Those credits do not apply for people convicted of murder, rape, or child molestation.
Supporters say these provisions are all about reducing the prison population and creating a criminal justice system that prioritizes treatment over incarceration.
Shakyra Diaz is with Crime Survivors for Safety and Justice. She says the state spends more than $1.5 billion on its prisons and that decreasing the population will divert more of that money toward treatment.
“For far too long we’ve been struggling with overcrowded prisons and this is a way to get resources back to the communities to help resolve some of the issues that everyone knows are really struggling,” says Diaz.
But Paul Pfeifer, a former Ohio Supreme Court justice and executive director of the Ohio Judicial Conference, disagrees. He says the current criminal justice system is designed to use the threat of prison as leverage in order to get people suffering with a substance abuse disorder to opt for treatment.
“If you take away the threat that an addict may have to face some jail or prison time, you just can’t get them to go to treatment. They just will not do it,” says Pfeifer.
That carrot-and-stick argument is at the heart of a main arguing point for supporters and opponents of Issue 1.
For the past few years, Ohio’s county judges have been creating drug courts, which offer treatment programs in lieu of jail time. Ohio Supreme Court Chief Justice Maureen O’Connor believes those drug courts could become useless if Issue 1 were to pass.
“I always say that the lucky ones are the ones who get caught with possession because, based on what their records are, they may very well be eligible for drug court and drug court is, I think, the best option that we have to treat the individual in the community, give them an opportunity for a second chance and aid in their recovery,” O’Connor says.
Supporters of Issue 1 say drug courts will still play a vital role in Ohio if voters approve the measure. Stephen JohnsonGrove is a criminal justice reform advocate with the Ohio Justice and Policy Center. He says the current system is more extreme than just a carrot and stick.
“What we takeaway is the sledgehammer which is prison but we still keep in the judges hand other kinds of tools such as probation. And probation, one should understand in Ohio, includes a whole menu of options including mandatory treatment,” says JohnsonGrove.
Right now, more than 2,600 people are behind bars with drug possession being their most serious offense. That’s five percent of a prison population of just under 50,000. Supporters say those people would be able to ask a court to reduce that conviction to a misdemeanor and seek treatment instead.
A big talking point in the campaign revolves around the possession of fentanyl. The synthetic opioid is up to 50 times deadlier than heroin. Opponents say that, under Issue 1, a person could possess up to 19 grams of fentanyl without going to prison. That much fentanyl could kill 10,000 people.
JohnsonGrove argues that anyone with that much fentanyl would still go to prison if prosecutors charge them with trafficking.
“The thing is I’ve talked to some state prosecutors, federal prosecutors, frontline police officers, even defense attorneys that routinely handle these cases, every single one of them told me — 19 grams of fentanyl — that’s trafficking every single day of the week, in every corner of this state, and we’re not touching trafficking laws,” JohnsonGrove says.
But that’s not how O’Connor sees it.
“That’s not by definition trafficking. Just the mere possession, and it’s not packaged for distribution or some of the other requirements in order to get you over from possession to trafficking,” O’Connor says.
The issue is getting a large amount of financial support from outside of Ohio — including half of its money from Facebook founder Mark Zuckerberg and George Soros, an international philanthropist tied to progressive causes. There isn’t much money against the issue, though several law enforcement, judicial, and local government groups have announced they’re opposing it.
If passed, the provisions in Issue 1 would be written into the state constitution. Opponents argue that would make any changes impossible without going to Ohio voters again.
But Supporters of Issue 1 say Ohio lawmakers have had years to do something but haven’t made enough progress to address the issue of overcrowded prisons, and to connect drug users to treatment rather than jail.
The state budget office analyzed the financial impact of the ballot issue, finding that it would shift most costs onto local governments and could actually drive up costs to the state overall. But proponents of Issue 1 say the analysis is flawed, and that the money saved from reduced prison populations will offset what the state is already spending on the opioid crisis and drug treatment.