Bipartisan drug sentencing reforms are gaining momentum in the Ohio House and Senate.
A House proposal would require judges to consider addiction treatment before prison. The Senate plan turns low-level felony charges for nonviolent drug crimes into misdemeanors.
Backed by top Ohio lawmakers and judges, the two bills are on a path to become law by the end of the year. Their passage, whether complementing or conflicting one another, could have widespread impact on Ohio’s criminal justice system, from sealing criminal records so recovering addicts applying for housing or jobs aren't haunted by felony convictions to easing the overcrowding of state prisons by treating crimes as symptoms of the addiction disease.
The proposals codify practices adopted by some common pleas courts, like in Summit County where multiple drug courts seek to break the cycle of addiction through intensive treatment and probation instead of jail time and fines.
“Those are some very effective court systems. They do a wonderful job,” said Rick Harig, a Catholic Charities recovery coach who counsels overdose victims in the emergency room at Summa Health’s Barberton Campus.
Sealing records for addicts, eliminating the felony classification and prioritizing treatment “statewide would be a blessing in my opinion,” said Harig, a recovering alcoholic who recently drove to Holmes County to try to convince jailers that his son needs treatment for his methamphetamine use — not more of the hardened punishment that makes sobriety difficult to achieve.
“It’s the same kind of stigma about being a heroin addict,” said Harig, who works with seven other recovery coaches. “People don’t realize that 50 percent of heroin addicts started with a physician giving them a prescription then cutting them off.”
As violent crime has fallen in Ohio, drug crimes have crowded jails and prisons.
Researchers say opioid use, in particular, is driving up female and overall prison populations, sending judges and jailers in and outside of Summit County looking for better ways to stretch limited resources.
From 2004 to 2014, a report by the Ohio Office of Criminal Justice Services clocked a 600 percent increase in the rate of opioid-related crimes. Behind marijuana, heroin and its synthetic alternatives overtook cocaine around 2011 as the second most common drug in a criminal database fed by 72 percent of Ohio's local law enforcement agencies.
Slammed with cases of repeat offenders, state lawmakers are exploring more nuanced solutions, like medication-assisted treatment in jails, which has been slow to catch. (A recent U.S. Justice Department report indicated 1 in 20 jails and prisons provides medication-assisted treatment while only 1 in 200 deploys buprenorphine with naloxone, known by the brand name Suboxone.
“We all recognize that treatment is the response to addiction. You can’t arrest and jail your way out of it,” Ohio Supreme Court Chief Justice Maureen O’Connor told the Beacon Journal/Ohio.com editorial board last week. “We need treatment. The question is, how do you incentivize someone to seek treatment and to stay in treatment?”
O’Connor, a former Summit County judge and prosecutor, is among a growing chorus of state officials who say the current system of “justice is very defeating for the treatment process” because felony convictions forever stigmatize and hurt addicts, who might relapse in despair without a job or apartment.
House Bill 1
Drug sentencing reform at the Statehouse is taking two slightly different approaches, each balancing the deterring effect of punishment with the cycle-breaking promise of treatment. One plan automatically equates copious possession to trafficking while the other lets addicts seal their felony records.
“If you’re moving pounds of heroin, yeah lock them up and throw away the key,” said Harig. “But if it’s just someone buying drugs on the street or caught with paraphernalia, that felony can follow you around and make it difficult to get sober and stay sober.”
House Bill 1, which O’Connor supports, lets defendants with underlying crimes influenced by drug or alcohol use ask the court for treatment. If treatment is successfully completed, prosecutors stand down.
Violent felonies and sex crimes would not be eligible for this “treatment in lieu of conviction” option, a concept practiced in local drug courts but not standard statewide. “The beauty of House Bill 1 is that the judge is presumed to put you on a treatment track,” O’Connor said.
The presumption of treatment, like the presumption of innocence that underpins the American justice system, sets a standard for how judges would approach cases involving addiction.
Judges could deny treatment requests but would have to list the reasons why they feel jail, fines or both are more appropriate.
The bill also creates a path to seal certain criminal felony convictions if the drug offender stays out of trouble for a year after probation.
The proposal, introduced in May by Dayton Republican Phil Plummer and Toledo Democrat Paula Hicks-Hudson, passed from the House to the Senate last month on a favorable 91-6 vote.
Senate Bill 3
Meanwhile, a bill introduced in February declaring nothing more than “the intent of the General Assembly to develop and enact legislation to reform Ohio's drug sentencing” picked up 12 amendments in late June. The high chamber will take up the measure, known as Senate Bill 3, when the Senate Judiciary Committee convenes July 17.
S.B. 3 was written by Democrat Sean O’Brien, a former Trumbull County assistant prosecutor, and Munson Township Republican John Eklund, an attorney who represents all of Portage County and chairs the Judiciary Committee. Senate President Larry Obhof, also an attorney who represents Medina and Ashland counties, is the main co-sponsor.
The bill would take “relatively minor drug possession charges [now fourth and fifth degree felonies] and make them unclassified misdemeanors publishable by up to a year in jail,” Eklund told the Beacon Journal/Ohio.com. The court could then put the case on hold until the offender undergoes treatment. “And if they complete that treatment, then the case is never prosecuted, never part of that person’s record. If they screw up, they’ll be convicted or prosecuted on a unclassified misdemeanor," Eklund said.
Offenses that would remain felonies under the bill include charges involving the potent opioid called fentanyl or the use of drugs to commit sex crimes.
The bill also would automatically elevate charges for high-quantity drug possession to trafficking.
“The prosecutor would no longer have to prove that they were distributing or preparing for distribution or packaging for distribution,” Eklund said. “If you have enough of these drugs, you’re automatically assumed to be trafficking.”
O’Connor said lawmakers are responding to the public effort to get Issue 1 on the ballot last year. She opposed the failed criminal justice reform initiative, which would have converted felony drug charges to misdemeanors. For that same reason, which she said would “eliminate the fear of consequences” for breaking the law, O’Connor opposes S.B. 3.
Eklund "respectfully disagrees," saying that offenders facing felony possession charges are rarely sentenced to a year in jail. "It’s not as if people in the system are fretting over whether they have a felony or misdemeanor charge," he said.
Another distinction between the proposals is that H.B. 1 wouldn’t stop private companies from collecting and selling background check information to employers who might reject an applicant with a felony drug charge, even if never convicted. Replacing felonies with misdemeanors may lessen the employment discrimination against recovering addicts, Eklund said.
Eklund is open to adjusting up or down the levels at which drug possessions would automatically become serious trafficking charges under his bill, which uses thresholds in current law.
“We’re not going to rush it, frankly, because it’s a big change. And we’re not going to ignore all the possibilities," Eklund said. But I’m hopeful sometime this year that we’ll get this thing passed. And I’m looking forward to seeing House Bill 1 over in our chamber and assigned to a committee soon."
Reach Doug Livingston at firstname.lastname@example.org or 330-996-3792.