Why Ohioans should vote against Issue 1 in November 2018

In November 2018, Issue 1 is on the state-wide ballot in Ohio. Issue 1, a citizen-initiated amendment to the Ohio Constitution, has an appealing title: “To Reduce Penalties for Crimes of Obtaining, Possessing, and Using Illegal Drugs.” Despite Issue 1’s promise of treatment over incarceration for drug addicts, passage of this issue will only make Ohio’s spiraling drug epidemic worse. Issue 1 adds fuel to an already raging fire.

Addiction is a disease; it needs to be treated like one. Incarceration is not a substitute for treatment, and it should be used as a last resort; after treatment attempts have failed. It is indisputable that Issue 1 advocates for treatment over incarceration. The proposed language of Issue 1 is short and to the point:

  • Require sentence reductions of incarcerated individuals, except individuals incarcerated for murder, rape, or child molestation, by up to 25% if the individual participates in rehabilitative, work, or educational programming.

  • Mandate that criminal offenses of obtaining, possessing, or using any drug such as fentanyl, heroin, methamphetamine, cocaine, LSD, and other controlled substances cannot be classified as a felony, but only a misdemeanor.

  • Prohibit jail time as a sentence for obtaining, possessing, or using such drugs until an individual’s 3rd offense within 24 months.

  • Allow an individual convicted of obtaining, possessing, or using any such drug prior to the effective date of the amendment to ask a court to reduce the conviction to a misdemeanor, regardless of whether the individual has completed the sentence.

  • Require any available funding, based on projected savings, to be applied to state-administered rehabilitation programs and crime victim funds.

  • Require a graduated series of responses, such as community service, drug treatment, or jail time, for minor, non-criminal probation violations.

Sure. All great things. Treatment over incarceration. However, the third point — prohibiting jail time as a sentence until the offender’s 3rd offense within 24 months — is the problem with Issue 1. Also, there is no funding allocated for Issue 1’s treatment mandate.

Issue 1 strips judges of their inherent discretion to apply a punishment that fits the crime. Under Ohio law, judges are required to impose a punishment that “protects the public from future crime by the offender and others, and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.” This is what is known as the overriding purpose of felony sentencing. A judge sentencing a drug addict for a drug possession offense needs to have the tools necessary to craft a punishment that fits the offender’s culpability.

For example, Offender A and Offender B come before a judge. Offender A is a true first offender who is charged with a drug possession offense. Offender B is a repeat drug possession offender who has had multiple opportunities to engage in treatment. Under current Ohio law, a judge has a wide-range of options when punishing the offenders. Perhaps the judge opts to put Offender A on probation — court-ordered supervision with prison or jail time suspended — to allow the offender to make a meaningful attempt at treatment. For Offender A, the looming possibility of prison or jail time may motivate the offender to meaningfully engage in treatment and adopt a healthy lifestyle. If Offender A relapses or otherwise violates probation, the judge has options: increase the intensity of probation monitoring, or maybe ordering the offender serve a weekend in jail. This potential loss of liberty is a big incentive for Offender A to follow the conditions of probation. For Offender B, perhaps the judge, having made reasonable attempts to give the offender a chance at engaging in treatment, chooses to impose prison or jail.

The two examples above are some of the tough decisions judges make every day. Judges must be free to exercise discretion, especially for persons suffering from severe drug addiction. Repetitive drug users are more prone to relapse. Judges must be able to appropriately respond to those relapses, and prohibiting jail time as a sentence until the offender’s 3rd offense within 24 months will take away incentives people might have to not offend again because of the looming potential of going to jail.

Issue 1 robs judges’ ability to appropriately respond to relapses and other life events for addicts. It is also an empty promise: where is the funding going to come from? Issue 1 fails to spell that out. Under Issue 1, judges lose their discretion to fairly punish offenders. Issue 1 also fails to deliver on its treatment promise without proper funding.

In lieu of Issue 1, the Ohio General Assembly would be prudent to craft legislation that mandates specialized drugs courts in every county throughout the state. Drugs courts, like those operating in Franklin County, ensure that offenders receive maximum treatment and face punishment when appropriate.

Issue 1 has no place in our Constitution.

The Stavroff Law Firm