On the November 6, 2018 ballot will be Issue 1, a proposed amendment to the Ohio Constitution that would significantly impact how low-level felony drug possession offenses are charged and sentenced in Ohio, how sentence reductions are applied, and how increased drug treatment is paid for. While certainly well-intended, the proposed constitutional amendment demonstrates a lack of understanding of how the current sentencing scheme in Ohio already addresses low-level felony drug possession offenses.

What is Issue 1?

Issue 1, in summary, will require the following if adopted by Ohio voters:

• Sentence reductions for those incarcerated, except those incarcerated for murder, rape or child molestation, by up to 25% if the individual participates in rehabilitation, work or educational programming.
• Criminal offenses for obtaining, possessing or using any drug will no longer be a felony, but will be a misdemeanor.
• Prohibit incarceration as a sentence for obtaining, possessing or using drugs until an individual’s third offense in a 24-month period.
• Allow individuals convicted of obtaining, possessing or using drugs prior to the effective date of the amendment to petition the court to reduce the conviction to a misdemeanor.
• Require a graduated series of responses to non-criminal probation violations, such as community service, drug treatment or jail time.

The specific text of what will appear on the ballot in November 2018 can be found here. A summary and full text of the proposed constitutional amendment can be found here.

Arguments for Issue 1

Those in favor of Issue 1 highlight a number of laudable goals and elements to the proposed amendment. These include:

1. Reclassifying Felony Drug Possession Offenses as Misdemeanors – This provision would allow those with prior felony drug possession convictions to petition the court for reclassification of those offenses to misdemeanors, which would allow some to be eligible for certain employment opportunities, housing and government benefits.
2. Earned Credit During Incarceration Will Be Expanded – Incarcerated individuals will earn 1 day credit off of their sentence for every 2 days of participation in drug treatment, employment or educational programming while incarcerated, up to a maximum of 25% of the individual’s sentence.
3. Graduated Probation Sanctions – Incremental sanctions, such as community service, drug treatment and jail time for non-criminal violations must be imposed, instead of a prison sentence.
4. Savings from Not Sending People to Prison to be Used for Treatment – Money saved by not sending individuals to prison will be redirected to drug treatment and victim services.

Arguments Against Issue 1

Those opposing Issue 1 highlight a number of problems that the amendment would create and how the intended goals would not be effectuated, including:

1. Loss of Discretion for Judges – Under the current sentencing scheme, judges have a significant amount of discretion in fashioning a sentence that comports with what the judge feels will be address then need for rehabilitation and punishment, including Intervention in Lieu of Conviction, community control, community-based correctional facilities, jail and prison.
2. Current Statutes Already Address Concerns by Those in Favor of Amendment – Under the current statutory scheme in Ohio, there are diversion and expungement provisions that address the first-time felony drug possession offender. There is also a heavy presumption against incarceration for low-level felony possession offenses and drug courts are already addressing treatment.
3. Issue 1 Benefits Those Who Don’t Care About Treatment – For those who would rather serve a jail sentence than treatment, Issue 1 permits this because a judge cannot sentence a person for drug possession to anything more than a misdemeanor would allow. It would also significantly curtail the ability to require treatment due to the short length of a misdemeanor jail sentence.
4. Constitutional Amendments Cannot be Easily Fixed – Constitutional amendments, by definition, are hard to enact and even more difficulty to fix or repeal. Thus, if the unintended consequences highlighted above occur, unlike with a statute, there isn’t an easy fix.

A Criminal Defense Attorney’s Perspective on Issue 1

As a criminal defense attorney, I have represented countless individuals charged with drug possession offenses and crimes related to a substance abuse issue (e.g., theft). For those currently charged with a 4th or 5th degree felony drug possession offense in Ohio, there is a presumption against incarceration for that person. Thus, the primary problem that Issue 1 seems to want to address (i.e., incarceration of low-level drug possession offenders) doesn’t really exist. It is a solution without a problem.

Furthermore, there are programs that already address the need for treatment instead of incarceration, such as Intervention in Lieu of Conviction and Community Based Correctional Facilities, and the savings from not incarcerating people will not address the funding needed to implement Issue 1’s plan without further burdening the Ohio taxpayer. However, the amendment could be modified in a manner that would make it more effective and accomplish the goals proponents desire.

Intervention In Lieu of Conviction and Community Based Correctional Facilities

There are a number of programs that address substance abuse issues without incarceration. For 4^th and 5^th degree felony drug possession offenses, if the person does not have a prior felony conviction or conviction for a violent crime, and can demonstrate that their substance abuse issues was a leading factor towards the commission of the criminal offense, the person can be placed on Intervention in Lieu of Conviction (ILC).

ILC allows a person charged with low-level drug possession offenses to address their addiction issues through a treatment provider while being supervised by the court, but allows the person to continue their employment, live with their family, and be a productive member of the community. This is a critically important program as it allows the court to require drug offenders to address their addiction issue over a 1-5 year period, but also impose sanctions if the person does not comply. I have heard from numerous counselors and clinicians that have said that without the potential for jail or prison, many individuals on ILC would simply not comply with the programming.

Furthermore, probation departments in common pleas courts (who have exclusive jurisdiction over felony offenses) have a significantly lower number of people being supervised than municipal courts (who have jurisdiction over only misdemeanor offenses). Currently, most municipal courts do not grant ILC requests because the courts simply do not have enough resources to supervise the ILC programming and supervise the large number of individuals on probation (the argument about the overuse of probation is a separate problem).

When a person does not comply with ILC, there is a presumption of community control (AKA probation). However, as a condition of community control, the court can order that the individual be placed in a community-based correctional facility (CBCF). CBCF is a program that requires the person to address their substance abuse issues through treatment programming. While it is a lock-down facility (in that the person is not allowed to leave), the goal is not punishment, but rehabilitation.

Only after failing to complete ILC or CBCF will the court look to impose incarceration and, even then, it will likely only be incarceration in the county jail, not prison. Thus, the goal that Issue 1 is seeking to address in preventing the imposition of prison for low-level 4^th and 5^th degree drug possession offenses is already in effect via the current statutory scheme.

Finally, if Issue 1 is adopted by Ohio voters, ILC and CBCF will no longer be available to the courts because of the lack of resources in municipal courts and the length of time required to complete those programs. Moreover, in my experience, many drug possession offenders would rather serve a short sentence in the county jail than complete CBCF (and address their substance abuse issues).

Savings from Not Incarcerating Are Illusory

Proponents of Issue 1 tout the idea that Ohio would save $100 million per year. However, when was the last time that an estimate regarding savings pertaining to government was remotely accurate. Moreover, this claim was debunked by the Ohio Office of Budget and Management. Their estimates state that there would be an annual savings of $1.3 million.

This is based on the overestimation of the number of people who would not be incarcerated by proponents of Issue 1 and the likelihood of judges sending those with higher felony drug possession offenses to prison instead of community control and community control violations. However, even without that assumption, the costs savings would be approximately $27 million per year and, possibly, $48 million per year by 2023.

The amount of savings would not be remotely enough to cover the increased costs of treatment programming, which would significant costs to Ohio taxpayers.

Modification of Proposed Amendment Would Make it More Effective

While the proposed amendment is not well thought out, it does have prescriptions that should be codified in the Ohio Revised Code and not the Ohio Constitution. Permitting most incarcerated individuals to earn further credit to reduce their prison sentences is absolutely something that should occur. That would address the budget issue of having far too many prisoners in Ohio and would further incorporate the idea of rehabilitation over punitive measures in the Ohio penal system.

The idea of allowing a person to petition the court to reclassify their drug possession conviction to a misdemeanor should be modified and expanded. Instead of mandating that low-level drug possession offenses be misdemeanors from the outset, require the completion of a drug treatment program in order for the reclassification to occur.

Finally, if the reclassification of felony drug possession offenses must occur, limit it to marijuana possession. The destructive effects of drugs such as heroin and fentanyl are simply not the same as marijuana. Those charged with possession of 200 grams of marijuana (which is a felony in Ohio) are not in the same position as those addicted to other substances. Many people can abstain from marijuana use if they chose to and simply enjoy smoking marijuana. That is not the case with other drugs that really do require an intensive treatment program in order to address.

Columbus and Delaware, Ohio Criminal Defense Attorney

If you have been charged with a criminal offense in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced Columbus and Delaware, Ohio criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your criminal offense case.

Johnson Legal, LLC serves the following cities in the central Ohio area for Criminal Defense:

Westerville, Worthington, Columbus, Polaris, Reynoldsburg, Grandview Heights, Shawnee Hills, Bexley, Pickerington, Gahanna, Sunbury, Powell, Upper Arlington, New Albany, Dublin, Hilliard, Lewis Center, Galena, Clintonville, Huber Ridge, Blacklick, Grove City, Delaware, Marysville, Groveport, Newark, Canal Winchester, Obetz, Marion, Mt. Gilead, Pataskala, Granville, Whitehall, Franklin County, Morrow County, Licking County, Knox County, Union County, Madison County and Delaware County