We use cookies on this site to enable your digital experience. By continuing to use this site, you are agreeing to our cookie policy. close

In Ohio, Drug Sentencing Reform Down But Not Out

By RJ Vogt | November 25, 2018, 8:02 PM EST

It was an ambitious plan: Turn low-level drug possession and use felonies into misdemeanors, block courts from sending probation violators to prison, and spend savings from the subsequent reduction in prison populations on substance abuse treatment to combat Ohio's opioid addiction epidemic.

Ambition, however, does not necessarily spell success. On Nov. 6, the proposed constitutional amendment known as Issue 1, the broadest referendum on drug sentencing reform in Ohio's history, was shot down by a vote of 63-36 percent.

In a year that saw major criminal justice reforms on ballots across the country, Ohio is a test case in how referenda may not always be the best method for changing a state's sentencing standards.

According to supporters and opponents of Issue 1, its failure at the ballot box was partly attributable to voters' discomfort with the role that outside money played in the campaign, as well as concerns over amending the state's basic governing document.

But Issue 1's key idea — tackling Ohio's overpopulated prisons and opioid epidemic in tandem — remains on the table in the form of legislation backed by Ohio's Republican Senate President Larry Obhof. Just days after the referendum was voted down, Obhof said he planned to introduce a bill that would downgrade some drug offenses and encourage treatment in ways similar to Issue 1. He told Law360 that the bill could be introduced by early December.

"When you're making substantive law, particularly criminal law, it is much better to do that in statutes than in the constitution," he said, explaining his support for legislating some of the same concepts he opposed in amendment form.

"The constitution is inflexible; if things turn out not to work the way you expect them to, it's very difficult to change," Obhof added. "This [proposal] will give the Legislature the ability to hopefully improve on things as needed over time."

According to Stephen JohnsonGrove, deputy director of the Ohio Justice & Policy Center and a co-author of Issue 1, financial support for the amendment was strong. The $16 million-dollar campaign received $3 million from Facebook founder Mark Zuckerberg and his wife Priscilla Chan's advocacy group, as well as $2.64 million from San Francisco-based Tides Advocacy and $2.5 million from Oklahoma oil heiress and philanthropist, Stacy Schusterman.

But all that outside spending wasn't enough to to overcome stiff opposition from nearly every law enforcement entity in the state. JohnsonGrove said that in some ways, the outside spending actually hurt the measure's chances of success, despite versions of the idea having been passed in at least five other states over the last four years. He added that some objectors opposed the idea of enshrining the reform via changes to the state Constitution.

"So it's not that they're against reducing drug possession from felony to misdemeanor or they're against reducing the prison population safely or increasing investments in treatment," JohnsonGrove said. "They just didn’t like doing it in the Constitution and maybe didn't like outside money."

Obhof echoed the sentiment, calling Issue 1 part of a national movement "funded largely by people outside of Ohio."

"What they tried to do, I think, was to superimpose their solutions onto several different states over the last few years," the Senate president said. "Frankly, Ohio doesn't fit the model that they were looking at."

The other problem that sunk Issue 1 was the fact that it seemed to take power away from judges, according to Columbus City Attorney Zach Klein. Under the proposed amendment, offenders could only face jail time after three low-level offenses within two years.

"That left a defendant with the option of doing nothing or going to rehab for the first two offenses," he said. "If you truly are driven by addiction and don't have that moment of clarity, of course you're going to really just pay the fine and do nothing. That's not helping the addict."

Klein has been a vocal supporter of Obhof's yet-to-be-proposed bill, and he told Law360 that he's met with both Obhof and Speaker of the House Ryan Smith to discuss the reform.

"Our proposal ... gives a presumption towards rehabilitation, but still gives the judge, based on the factual record, the ability to actually incarcerate the individual for a day or two," he said. "If the judge says, 'You need to go to rehab,' and the offender says, 'No, I'm not going,' then the judge can still incarcerate."

Klein added that the proposed legislation has another key difference from Issue 1: It does not turn low-level fetanyl and date-rape drug felonies to misdemeanors.

Critics of Issue 1 had latched on to the fact that it would have allowed those charged with possessing up to 20 grams of fentanyl to walk away with nothing more than a probation sentence, despite research that has shown the deadly opioid and related compounds were involved in 71 percent of Ohio's unintentional overdose deaths last year.

So far, no legislation has hit the Senate floor. And with the current lame-duck legislative session set to conclude at the end of the year, Obhof said he doesn't expect to pass anything until lawmaking resumes in January.

"What I'd like to do is have a couple of hearings ... to help inform what the final version of the bill should look like so that we can make it at one of our top priorities in the next General Assembly," he said.

While the bill is a work in progress, JohnsonGrove said he thinks the legislation is something Issue 1's backers could get behind.

"We're always committed to the goals of safely shrinking the prison population and putting more resources where they belong," he said.

--Editing by Katherine Rautenberg.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.