Both sides debate effects of drug sentencing plan

9/13/2018

COLUMBUS — When is a drug trafficker different from an addict who deals to support his own habit?

That’s among the questions being debated as Ohio voters prepare to vote on a proposed constitutional amendment designed to downgrade low-level, nonviolent felony drug charges to misdemeanors.

“Prosecutors are often the first person to suggest that a person be put into treatment,” Louis Tobin, executive director of the Ohio Prosecuting Attorneys Association, said Thursday in the first of a series of Ohio State University panels exploring the potential effects of Issue 1.

“On the other hand you can have a person in front of you who you know is engaged in drug trafficking, who doesn’t necessarily need treatment, who if you put them on probation is going to return immediately to selling drugs even if you can’t catch them in the act,” he said. “Issue 1 takes human judgment off the table.”

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Steven JohnsonGrove, deputy policy director for the Ohio Justice and Policy Center and co-author of the ballot issue, pointed to a large graph on the screen behind him that shows how the state’s prison population has ballooned over the decades.

“We have to look at what human judgment has done for us — 50,000 people in state prison,” he said. “The constant march of both prosecutors and judges to use incarceration is inexorable. They don’t stop.”

He pointed to continuing passage of legislation that increases penalties and creates new crimes.

“We have to put an end to that habit,” Mr. JohnsonGrove said.

Issue 1 on the Nov. 6 ballot asks voters to amend the Ohio Constitution to convert what are now charged as nonviolent, fourth and fifth-degree drug felonies and convert them to misdemeanors. That takes state prison time off the table and, for the first and second offense in a 24-month period, also takes time in county jail off the table.

It would require lawmakers to take financial savings realized from not sending people to state prison — as many as 10,000 inmates a year or 20 percent of the prison population — and divert it to treatment, victim trauma, and similar programs.

Judges, including Ohio Supreme Court Chief Justice Maureen O’Connor, have come out against it, arguing, among other things, that it would gut a court’s ability to use the threat of prison time to force an offender into treatment.

So have prosecutors, the Ohio State Bar Association, and Republican gubernatorial candidate and Attorney General Mike DeWine.

On Thursday, the American Civil Liberties Union of Ohio endorsed the plan, joining Mr. JohnsonGrove’s organization, Democratic gubernatorial candidate and former attorney general Richard Cordray, Libertarian candidate Travis Irvine, George Soros’ Open Society Policy Center, and Mark Zuckerburg and wife Priscilla Chan’s Chan Zuckerberg Initiative.

Backers of the proposal insist that Issue 1 is aimed at drug possession cases and would not include those engaged in drug trafficking as well as any case serious enough to be prosecuted as first-, second-, and third-degree felonies.

But opponents argue that the would-be amendment’s wording would prohibit prison time in any possession case, regardless of the quantity of drug involved.

“If a person has 19 grams of fentanyl and gets a misdemeanor conviction, they’re going right back out on the streets in probation,” Mr. Tobin said. “There’s nothing a judge can do. ... Nineteen grams of fentanyl is enough to kill 10,000 people.”

Daniel Dew, legal fellow at the conservative Buckeye Institute think tank, said Ohio needs a tougher definition of what constitutes trafficking. The organization cannot take a formal position on Issue 1 because of its tax-exempt status, but Mr. Dew questioned the wisdom of etching such reforms into the constitution.

Mr. JohnsonGrove also said that, while jail and prison time would be off the table in possession cases on the initial convictions, judges could use local jail time to punish probation rule violations and keep offenders on the path to recovery.

“It leaves every tool in the toolbox that judges have, except for one — the sledgehammer,” he said.

Contact Jim Provance at jprovance@theblade.com or 614-221-0496.