Issue One: Light At The End of the Tunnel or a Risky Gamble?

Everyone agrees that we need to fight drug addiction in Ohio. The Cincinnati area has had some of the highest opioid overdoses and deaths in the country. There aren’t many local families that haven’t been touched by the opioid crisis in some manner, my own family included.On the ballot in 2018 in Ohio, there is a proposed amendment to the Ohio Constitution that would reduce the crime of possession of personal amounts of illegal substances to misdemeanors not resulting in jail terms. Additionally, the amendment would make it harder to incarcerate drug users on probation or parole for failing drug tests. This proposed amendment on the ballot is known as Issue One, and it has strong proponents and opponents.

In September, the UC Law community was treated to an academic discussion on Issue One. Steven Johnson Grove of the Ohio Justice and Policy Center and Janet Moore, Professor of Law at UC Law, were the two main speakers at the event. Mr. Johnson Grove is one of the foremost local proponents for the passage of Issue One. Professor Moore is an expert in criminal justice reform. The discussion took the format of Professor Moore asking critical questions of Mr. Johnson Grove regarding Issue One.

The battle behind Issue One became institutional with the release of a letter from Ohio Supreme Court Chief Justice Maureen O’Connor in late August. The Chief Justice wrote of her opposition to Issue One. Her primary arguments that it would hamper the courts’ ability to give incentives to those suffering from addiction to seek treatment. She expressed concern over the future of drug courts, where drug users are able to seek treatment in exchange for incarceration and other penalties. She felt Issue One would tie the judiciaries’ hands, and felt that the Ohio judiciary is uniquely qualified to speak to what incentives do and don’t work for those suffering from drug addiction.

Ohio is one of eighteen states where the people, via the state constitution, reserve to themselves the power to propose amendments to its constitution and to approve the same at the polls. The movement to permit amendments via popular ballot actually began in Cincinnati, with Herbert Bigelow of Vine Street Bigelow Church suggesting the amendment to let the people have this power. Ohio has had seventy proposed amendments, and approved nineteen.

Issue One aims to accomplish four major goals:1. Reclassify low level felonies (F4s and F5s) for drug possession to misdemeanors. (including retroactively).
2. Prevent judges from sending people on probation for felony convictions for noncriminal probation violations, such as failed drug tests.
3. 25% of good time credits for drug users in prison for other crimes if they complete appropriate programming.
4. The justice reinvestment component – the money saved from no longer incarcerating those previously jailed for drug possession would go into treatment.

Johnson Grove’s primary arguments in favor of Issue One are that Ohio loses fourteen people per day to the opioid epidemic, so what Ohio is currently doing to combat drug addiction isn’t working. Ohio has currently 50,000 in state prisons, with a budget of $1.8 billion. Ohio has the fourth largest prison population in the U.S., but only the 6th or 7th state population. Previous attempts to fight drug addiction, such as the Criminal Justice Recodification Committee, which included Johnson Grove’s directir, David Singleton, rewrote Ohio’s drug codes, but nothing came of it. Meanwhile, the prison population and its corresponding cost to Ohio taxpayers are both going up, as are opioid deaths.

The primary critique of Issue One is that it would make the possession of dangerous amounts of fentanyl and date rape drugs nothing more than misdemeanors. Yet the cutting of heroin with fentanyl and the use of date rape drugs to incapacitate a rape victim would still be illegal and subject to felony prosecution. Additionally, prosecutions for fentanyl are almost exclusive for trafficking, not possession, which would still be at the felony level. Additionally, there is no standard for how to weigh narcotics, which are often a mixture of compounds. “Twenty grams” of fentanyl doesn’t necessarily mean that it is twenty grams of fentanyl alone. It is twenty grams of a substance that has fentanyl as one of its ingredients.

A second critique is that it would allow drug dealers to run amuck. Yet proving trafficking in Ohio is as simple as showing possession plus a sale, or preparation to sell, or a cell phone conversation intending to distribute. So dealers who engage in any behavior other than possession would likely be tried for trafficking.
The future of Ohio’s drug courts is another concern, notably expressed by the Chief Justice. Yet Johnson Grove points out that in Oklahoma and Utah, use of the drug courts increased, while it did decrease in California. He believes other factors, such as the direction of the drug courts, will impact how they are used if Issue One is passed.
Another concern is the possibility that prosecutors will push to convert possession cases into trafficking cases. Johnson Grove thinks that will happen for some cases, but that overall, incarceration will drop in Ohio. He argues that everyone shouldn’t suffer because some heavy users might be mischarged.

Johnson Grove also addressed the concern that the funding for this amendment has come from outside of Ohio, such as the pockets of Facebook’s Mark Zuckerburg. While this is true, the amendment will not profit anyone, and the money from outside Ohio that has gone toward supporting Issue One’s passage is nothing compared to the money that was poured into Ohio’s casino and marijuana ballot initiatives.

However, there is some confusion about how much money will be saved from an increase in the incarcerated population. Differing projections have come out showing either a windfall for drug treatment or barely any increase for drug treatment.

In the end, it will be up to the voters to decide. The judiciary are almost unified in their opposition to it. They believe that the threat of incarceration works. Conversely, drug treatment specialists universally teach that someone can’t be made clean unless she is ready to be clean and cooperate and change her thinking.

On the one hand, does giving someone a criminal record for being a drug addict seem productive if it just inhibits their ability to find work and become productive later? On the other hand, if we don’t force addicts into prison, are we endangering our society and removing an important incentive for addicts to go through treatment?
It is certain that what we are doing isn’t working. If Issue One isn’t a solution, I hope it at least becomes the first of many brainstorms on how to fix our drug addiction problem.