Issue 1 draws strong local reaction

Issue would reduce penalties for drug offenses

On the ballot in November all Ohio voters will consider a constitutional amendment concerning drug possession and prison time that’s drawing some strong opinions from local officials.

It’s called Issue 1, officially titled, “To Reduce Penalties for Crimes of Obtaining, Possessing and Using Illegal Drugs.”

“But that’s as misleading as what the California money that paid for the signatures to put it on the ballot called it,” said Washington County Common Pleas Judge Mark Kerenyi on Friday.

The petition to place the amendment on the ballot was filed under the title “The Neighborhood Safety, Drug Treatment, and Rehabilitation Amendment.”

“They talk about treatment and everybody’s in favor of treatment but there’s no penalty being imposed for failing to go to treatment,” explained Washington County Prosecutor Kevin Rings. “Then if it passes it would give Ohio among the most lax drug laws in the entire country.”

Statewide, multiple legal associations including those for common pleas judges, prosecutors and municipal court judges have come out against the amendment. Democratic Gubernatorial Candidate Richard Cordray told WKBN-27 this week at the Canfield Fair that he supports the amendment.

“Putting people in prison and putting a felony on their record when they have a problem of addiction to drugs is not the right answer,” said Cordray. “It’s the most expensive place to put people, it’s the least humane place to put people and it’s the least productive place. We need to boost drug treatment programs in our local communities and that’s where the funding should go and that’s what this measure would do.”

The argument for the initiative published by the Ohio Secretary of State Office says:

• The measure would save millions of dollars annually from reduced spending and reroute that money to addiction treatment and victims of crime.

• The measure puts public safety dollars to better use.

• The measure could reduce recidivism by expanding credit-earning systems for those incarcerated to earn their way out.

• The measure would still protect public safety by keeping those convicted of rape, murder and/or child molestation from benefiting from the constitutional changes.

Brent Phipps, deputy director of the Washington County Behavioral Health Board, said while the board has no formal position on the issue, he’s personally divided.

“I do understand the intent of it, to treat addiction as a disease,” he said Friday. “I think the intention is good but it gives a wide open door to continue use without consequences.”

He said while Washington County has a “pro-treatment” sheriff, judges and prosecutor, other counties across the state may not.

But Ohio Supreme Court Chief Justice Maureen O’Connor said the measure “will have catastrophic consequences for our state.”

“We could easily become a magnet for substance abuse activity because there will be, in effect, very little consequence to engaging in such behavior,” she said in a statement released at the end of August. “A drug offender caught with less than 20 grams walks away with no possibility of jail time. Since the lethal dose of fentanyl is just 2 milligrams (one-thousandth of a gram), 19 grams of fentanyl is enough to kill approximately 10,000 people.”

She said if Issue 1 passes, an offender charged with possession of 19 grams of fentanyl would automatically get probation and could only be charged with a misdemeanor.

Kerenyi and Rings said the amendment would cut out the incentive to successfully complete rehabilitation, and may negatively impact the effectiveness of the planned drug court.

“The idea of drug court is that if you fail in drug court then quick sanctions can be imposed,” said Rings.

Kerenyi and Assistant Prosecutor Alison Cauthorn are currently working with Rigel Recovery Services to draft a contract between the county and the business to launch a drug court program by the end of the year.

Funding for the drug court is lined up through both proceeds from the county mental health levy, passed last year, and through the Targeted Community Alternatives to Prison grant.

That TCAP funding is provided already through the Ohio Department of Rehabilitation and Correction as a court incentive to prevent prison incarceration for low-level felonies through a combination of local jail, counseling and drug treatment, called community control sanctions.

Washington County is only eligible for those funds because fifth-degree felony drug offenses from non-violent offenders are already handled within the county.

“First of all, I can’t even think of a fourth-degree felony possession charge, they’re all fifth-degrees if it’s less than bulk amount,” explained Rings. “The idea that the prisons are full of people on F-5 possession charges is absurd. They’re already getting community control, typically 30 days in the county jail and then a requirement that they go to counseling. The difference is that under the current system they’re getting convicted of felonies and if they fail to go to counseling or fail out multiple times then there is an additional sanction that can be imposed.”

Proponents for the amendment argue that felony records prevent those who have successfully completed rehabilitation programs from getting well-paying jobs.

“That part I kind of agree with,” noted Attorney Eric Fowler, who often represents clients in drug-related court cases before Kerenyi. “But I’m just so sick of my clients dying from drug overdoses.”

Fowler said even in defense of addicts, he can’t support Issue 1.

“Issue 1 takes away not only the consequences but also gives no motivation to get into recovery. It would gut a lot of the motivation to get clean,” he explained.

Kerenyi said he takes issue with how the ballot initiative came to be, from outside interests investing in the move like the CEO of Facebook, Mark Zuckerberg, though he said he holds no opinion on changing low amounts of possession to a misdemeanor offense.

“Once you have a felony conviction, these young adults 18 to 24 years old that messed up having a little cocaine or some pills are then saddled with a felony and it’s tough to get a job,” added Fowler. “But I think that’s the General Assembly’s job. Maybe (they create legislation) to make it an enhance-able situation, with the first time possession a misdemeanor but additional ones bump up to a felony like domestic violence.”

Rings said the alternatives to prison time are an oft-debated issue, which doesn’t always consider the fallout families and the community see of a person’s drug habit.

“I think the assumption is that everybody who has a drug-involved offense needs to be in rehab,” he said. “Well, some do and some just aren’t ready yet. How do you tell?”

“You need to be able to tell which one is which,” added Assistant Prosecutor Alison Cauthorn. “They’re constantly telling us you don’t have a blanket solution for everybody, everybody’s different. But here’s a blanket solution that’s wrong.”

The measure will appear on both absentee ballots and the Nov. 6 general election ballot for all Ohio precincts.

On the ballot:

• Issue 1: “To Reduce Penalties for Crimes of Obtaining, Possessing and Using Illegal Drugs.”

• A majority yes vote is needed for the constitutional amendment to pass.

• If adopted, the amendment would:

• Reduce sentences for incarcerated people by up to 25 percent pending participation in rehabilitative, work, or educational programming.*

*Except those in prison for murder, rape, or child molestation.

• Make the obtaining, possessing or using of any drug such as fentanyl, heroin, methamphetamine, cocaine, LSD, and other controlled substances only a misdemeanor.

• Prohibit jail time as a sentence until an individual’s third offense within 24 months.

• Allow the reduction of a prior drug conviction to a misdemeanor, regardless of whether the person 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 community service, drug treatment, or jail time, for minor, non-criminal probation violations.

Source: Ohio Secretary of State Office.