Issue 1 could make Ohio substance abuse magnet
Too many people in our criminal justice system are there because of substance abuse disorders. This is undeniable, and we know that substance abuse disorders are a major driver in criminal-justice spending. We also know that through long-term treatment and therapy, those addicted can lead law-abiding, productive lives.
Issue 1 on Ohio’s Nov. 6 ballot purports to address the costly issue of too many substance abusers behind bars and the need for treatment, and a superficial reading of Issue 1 could lead voters to see it as a thoughtful, compassionate, and reasonable response to the difficult and intractable problem of addiction. However, if you peel back Issue 1’s layers, its catastrophic consequences for our state become obvious.
Ohio may end up with some of the most lenient drug crime laws in the nation if this proposed constitutional amendment passes. Our state could easily become a magnet for substance-abuse activity because there will be, in effect, very little criminal justice consequence to engaging in such behavior.
Let me put the issue into context by explaining Issue 1’s consequences as it relates to possession of fentanyl, a lethal opioid. According to the Ohio Department of Health, drug overdose deaths in Ohio reached 4,050 in 2016. Fifty-eight percent of the overdose deaths in Ohio in 2016 involved fentanyl compared with only 4 percent in 2013. Fentanyl is 50 times more potent that heroin. According to the U.S. Drug Enforcement Administration, it takes just 2 milligrams of fentanyl – an amount barely able to cover Abraham Lincoln’s beard on a penny – to kill the average person. Fentanyl is addictive, lethal, and simple to manufacture. It is easily smuggled into our country from foreign sources via express mail.
Issue 1 would mandate that the possession of powdered fentanyl in amounts less than 20 grams as a misdemeanor, and it would forbid judges from imposing jail time. Since the lethal dose of fentanyl is just 2 milligrams (one-thousandth of a gram), 19 grams of fentanyl could kill approximately 10,000 people. This offender, charged with possession of 19 grams of fentanyl, would automatically only get probation. It would be constitutionally dictated that any drug possession conviction that is now a Felony 4 or Felony 5 must be reduced to a misdemeanor. And, the judge must then sentence the offender to probation for these offenses under Issue 1. This is unconscionable.
The lack of consequences for fentanyl possession also applies to possession of other lethal substances (cocaine, K2, meth and heroin, etc.). Current possession felonies become misdemeanors.
What criminals wouldn’t want to set up their drug business in Ohio?
The adoption of Issue 1 will, I predict, have a devastating consequence on our drug courts. We know, through multiple studies, that drug courts are highly effective but only when they combine the “carrot” of treatment and support with the “stick” of judicial accountability, including incarceration when needed. The courts will be unable to incentivize an addict’s participation in drug court because the “carrot” of not having a felony conviction record is gone. There would be no felony! Who would want to participate in a drug court program knowing that they only face probation for possession of fentanyl, cocaine, methamphetamine, K2, heroin, and so forth? I predict that we will see a severe drop-off in drug court participation at the very moment when it is needed most. Lives will be lost.
To make matters worse, Issue 1 would freeze our criminal drug offense laws in time. It expressly mandates that its provisions be implemented based on the laws in effect Jan. 1, 2018. Our General Assembly couldn’t, by passing a statute, fix all that is wrong with Issue 1.
Keep in mind that out-of-state special interest groups spent more than $4 million to put Issue 1 on the ballot and will spend more to mislead and confuse you regarding Issue 1.
The proponents seek to address a very real problem: the impact of substance abuse on our society and our criminal justice system. But by taking a hammer to that problem, the proponents have set Ohio on a dangerous course of lenient drug laws. Issue 1’s passage would gravely endanger Ohioans while doing very little, if anything, to help our addicted population. Lives will be lost.
Maureen O’Connor is chief justice of The Supreme Court of Ohio .