OH lawmakers attempt to head off ballot measures by reforming drug sentencing standards

Ohio

COLUMBUS, Ohio (WKBN) – In the late summer and into the fall of 2018, interest in Issue One picked up steam as we headed into the mid-term elections.

The ballot measure would have made significant changes to drug sentencing of low-level offenses and do a number of other things at the same time.

Pushback against the bill was fierce from groups tied to the criminal justice system and ultimately, voters overwhelmingly defeated Issue One at the ballot box.

Afterward, some who had supported the measure acknowledged that what it wanted to accomplish was pushed too far which resulted in turning popular opinion against it.

Still, there were parts of the ballot measure that rang true to voters and garnered support.

Some of those parts are what lawmakers are focusing on in Senate Bill 3 in this General Assembly.

By trying to work them into existing standards, lawmakers are hoping to avoid having to deal with another ballot issue that takes the power of creating or changing our laws out of their hands.

Senate Bill 3 is one of several priority bills for the Senate, bills that either one party or both have agreed need to be worked on for the betterment of the people of Ohio.

You can almost always spot a priority bill due to its number being a single digit.

Often, that means it was introduced almost immediately or its spot on the list is held intentionally until they are ready to introduce it.

In this case, the bill was introduced before many of the specifics of it were ready to be documented.

The original bill analysis simply states lawmakers have the intention to reform drug sentencing, but provides no details as to how.

Over the past few months, more and more of those details have been worked out and shared through committee hearings and interested party meetings.

Right now, the bill seeks to do two things: take a harder stance by increasing penalties for trafficking drugs while increasing access to treatment for addition and decreasing penalties for simple users of drugs.

The bill is described currently as liquid in its fluidity by sponsors of the bill.

Nothing has been set in stone, which makes it difficult to get completely behind the bill or detract against any one thing.

However, parties can find themselves coming down on both sides of the fence with this bill.

The ideas being pushed out for what the bill could be have caused some criminal justice professionals to draw lines in the sand.

This has mostly been over sentencing standards and whether some 3rd-degree felony drug charges should be downgraded to 4th- and 5th-degree felonies (based on the type of drug and quantities involved), and over the potential downgrade of some current 4th- and 5th-degree felony drug charges being turned into misdemeanor offenses (once again, based on type of drug and quantities).

There are clear and agreed upon exceptions. Fentanyl, for instance, is not being considered for downgrading in any way.

The addition of Fentanyl in Issue One became the rallying cry for many in the criminal justice field with then Attorney General Mike DeWine repeatedly stating the measure would make it so someone carrying enough Fentanyl to kill thousands of Ohioans would get a slap on the wrist.

You could say the lesson was learned, but as Ohio Prosecuting Attorneys Association Executive Director Louis Tobin says, “The devil is in the details.”

Right now, based on the way the bill structures which drugs and their quantities would be downgraded, his organization opposes the bill. He says it takes tools away from the criminal justice system.

“I think a lot of people do realize at some point that ‘[Going to jail/prison] is gonna help me get my life back together,’ and unfortunately some people don’t and they need to spend some time in jail or in prison,” Tobin said.

Gary Daniels, the chief lobbyist for the ACLU, says this traditional mindset is outdated.

“We’ve got 40-50 years worth of experience that show that you can’t arrest, convict and incarcerate your way out of this problem,” Daniels said.

Case in point, Kristen Hughes is a recovering heroin addict and convicted felon.

Back in 2011, she got busted with two baggies of heroin when an off-duty police officer saw her sell some to another person at a gas station.

She was charged with felony possession and trafficking, and she was given probation.

In 2013, she violated her probation by testing positive for narcotics on a drug screening and went to jail for 18 months.

She says that while she was in jail, it was harder to get drugs and she received no treatment for her addiction.

She says her behavior never changed after being sent to prison and her mindset was the same as it was when she was out on the street.

After getting out of prison, she was placed on five years of community control for other non-violent felony crimes she had committed.

“I wasn’t even out for six months and went right back again,” Hughes said.

She couldn’t keep clean.

After doing her time, she was once more released with community controls and just like the last time, she messed up again.

She admits that she should have gone back to prison again, but this was just a few years ago and a shift was beginning to happen in Ohio.

Instead of sending her to prison, she was given an alternative; go to a correctional facility-run treatment program.

She agreed, and while she was there she finally started to learn what she needed to do to get clean and stay that way.

Hughes’ addiction and poor choices earlier in life have caused her to rack up a number of felony convictions.

Under Senate Bill 3, some of them could have been misdemeanors, but Hughes doesn’t think that is a good thing.

“If you don’t have consequences for your actions, then people will continue to use,” she said. “It would be nice to not have the felony on my record but, you know, I don’t feel like I would have learned what I have from the mistakes that I’ve made.”

And she says there is always expungement.

Currently, up to five of the records of some 4th- and 5th-degree felony charges can be sealed and you do not have to admit to having them when filling out a job application.

There is a piece of legislation making its way through the Ohio House of Representatives that would eliminate the cap of five and make it an unlimited number of 4th- and 5th-degree felony charges (with restrictions for certain types).

Still, Hughes says had she received treatment instead of going to prison for 18 months, she is confident she would not have lost all of that time.

Senate Bill 3 is currently set up so that treatment opportunities are prioritized over being sent to jail or prison. It also offers that if the treatment program is completed, the charges would be dismissed.

The Ohio Prosecuting Attorneys Association says it is not opposed to the spirit of what the bill is trying to do and certainly would support the promotion of expanding treatment options.

However, they have grave concerns that changing the sentencing structures will only embolden drug traffickers and cartels and say that our current laws are working in a regulatory fashion.

According to Tobin, cartels know how much they can traffic before their “employees” are hit with more serious charges. So by adjusting the amounts of drugs a person can have on them down, it would allow traffickers to bring more drugs with less risk.

For example, it is a 3rd-degree felony to have 301 doses of a drug that carries an eight-year maximum sentence and having 299 doses is only a 4th-degree felony that carries a maximum of two years. So, the traffickers only ever have 290 doses on them — plenty to sell and not enough to get hit with a long prison term.

If the sentencing standards for that drug are lowered to say having 499 doses is considered a 4th-degree felony, then the trafficker knows it is now safe for them to have 490 doses on them for the same amount of risk as they were taking by having 290 doses.

Right now, there is a chart that spans three pages full of drugs with actual quantities that lays out where the penalty breakpoints should be.

Haggling over if or how those breakpoints should shift is ongoing.

The bill is expected to continue to be worked on through the summer, with a best-case scenario of it being ready for possible passage by early fall in hopes that it can be sent to the House Chamber before the end of the year.

It would then be up to the House if it wants to pick up the bill.

By then, House members will be gearing up for the Capital Budget and preparing for a long summer break to campaign for re-election.

It is unlikely lawmakers will return for any significant time from their summer break in 2020 until after the presidential General Election is decided, yet another political reason for a longer break.

If things play out that way, it is possible that lawmakers in the House could get some work done on the bill, but much more likely that it is held up until after the 2020 General Election and dealt with in the lame duck portion of session, those final two months before the General Assembly ends.

The only thing that may motivate quicker movement on Senate Bill 3 is the outside pressure of another ballot measure. Something that could be more difficult than it was last time (just based on the increase in the number of signatures required to get on the ballot).

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