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Cutting through the hype: What Issue 1 would mean in Ohio

Posted October 22, 2018 4:16 p.m. EDT

DAYTON, Ohio -- State Issue 1 has become so divisive it has split some otherwise like-minded groups.

Recovering drug addicts are speaking out for both the yes and no campaigns. Law enforcement groups like the Buckeye State Sheriffs Association have come out against it, while former narcotics officers are campaigning for a yes vote.

Sitting judges, too, are on opposite sides of the issue. And while the major party candidates for governor, Democrat Richard Cordray and Republican Mike DeWine, agree on the need for more and better treatment to battle the opioid epidemic, they are fiercely split on Issue 1.

The proposed constitutional amendment, which would change Ohio law to keep low-level drug offenders out of prison and promote more treatment of drug addiction, has garnered attention outside the state as well.

Billionaire philanthropist George Soros contributed $1.5 million toward the effort and Facebook founder Mark Zuckerberg donated $1 million. Many Republicans in the state are campaigning against it, but former U.S. House Speaker Newt Gingrich, R-Ga., publicly endorsed it.

Both sides have made strong claims to support their positions. To help you cut through the spin and make an informed vote, the Dayton Daily News dug into the amendment to determine what it will and won't do if passed, answer questions from readers and fact-check the claims being made in dozens of advertisements.

Q: Will more drug dealers be on the streets?

A: Issue 1 opponents have repeatedly said the proposed amendment would allow for someone possessing 19.99 grams of fentanyl -- reportedly enough to kill 10,000 people -- to be charged with a misdemeanor and avoid prison.

In a radio interview in September, DeWine said someone caught with 1,000 pounds of fentanyl would get a misdemeanor if Issue 1 passes. He's stated that Ohio will become more attractive to drug dealers who think they can commit crimes here and not go to prison.

"The penalty of possession (with enough) to kill approximately 10,000 people would be less than if I walked into a gas station and stole a soda," said Clark County Prosecutor Andy Wilson at a recent press conference opposing Issue 1. "Because I could be put in jail for stealing the soda."

There is reason to be skeptical of some of the claims. Ohio's criminal code includes provisions under which those in possession of a "bulk amount" of illicit drugs are charged with higher level felonies, and sent to prison, even if there's not enough evidence to charge them with trafficking. Those laws would not change under Issue 1.

The criminal code lumps fentanyl in with all over federally classified Schedule II drugs. The bulk amount for that category is defined as equal to 20 grams or five times the maximum daily dose as "specified in a standard pharmaceutical reference manual."

In the case of fentanyl, five times the maximum daily dose is far less than 20 grams. Fentanyl dosing is complicated because it comes in different forms, but it's always expressed in micrograms, not grams. When converted to grams, the bulk amount based on the largest maximum daily dose listed in the Prescribers' Digital Reference equals about .048 grams.

Anyone possessing that amount of fentanyl -- which is more than 400 times less than 20 grams -- could be charged with a third-degree felony, and thus not impacted by the Issue 1 reforms. Under Issue 1, fourth- and fifth-degree felonies would be converted to misdemeanors.

DeWine has also argued that more drug dealers will escape incarceration because of Issue 1. Drug trafficking cases are difficult to prosecute, he says, and by eliminating the threat of a felony 4 or 5 charge, drug traffickers will get charged with misdemeanors.

But Cordray and others dispute the claim. "That's ridiculous," said Stephen JohnsonGrove, the petitioner of the proposed amendment. "It's not hard to prove trafficking."

People found with large amounts of fentanyl are and will continue to be charged with trafficking, he said.

To check out the claim, the Daily News looked at one area county -- Greene -- to see how many of its inmates currently incarcerated in the Ohio prison system are there because of fourth-degree or fifth-degree felonies.

Of 506 inmates, the review found, just 13 had a fourth- or fifth-degree drug possession count as their only charge -- and almost all of those were for cocaine or heroin, not fentanyl.

"We've always charged individuals with trafficking," said State Sen. Cecil Thomas, D-Cincinnati, an Issue 1 supporter who spent much of his 27-year career with the Cincinnati Police Department as an undercover narcotics officer. "It's a myth to think someone would be charged with a misdemeanor."

Q: Will the state save money?

A: Supporters of Issue 1 say the main goal is to get more people into drug treatment and to have fewer individuals with the burden of a felony record hanging over them. Housing fewer inmates in Ohio's prison system will also save the state money, they say, allowing tens of millions of dollars a year to be redistributed to pay for drug treatment, services for crime victims and more.

This claim, too, has been challenged. Opponents say savings will be minimal at the state level and will be offset by additional costs at the local level as courts hire more probation officers, clerk's office staff and prosecutors to cover the increase in misdemeanor drug cases.

"These new misdemeanors are all going to get probation the first and second offense," said Greene County Prosecutor Stephen Haller, a member of the newspaper's Community Advisory Board. Local municipal courts "will be inundated with new misdemeanor drug prosecutions and no additional resources to handle the case load," Haller said.

In 2017 Ohio spent $1.33 billion to incarcerate 49,512 people at a cost of $73.76 per inmate per day. Issue 1 opponents point out that some of those costs are fixed, such as operating the physical prison facilities, thus limiting how much can be saved by small adjustments in the prison population.

Two opposing groups each performed financial analyses of the proposed amendment and came up with differing projections of how many people would be diverted from prison and how much money the state could save.

Policy Matters Ohio, a left-leaning, non-profit research group, estimates annual savings of $136 million by diverting people away from the state prison system.

"This analysis finds that more than 10,000 Ohioans could be taken out of expensive incarceration and served in the community, where they can better participate in work and family life," Policy Matters Ohio Executive Director Amy Hanauer said in the report.

But the Ohio Office of Budget and Management, which is required to do a fiscal analysis of any proposed ballot issue that impacts public funds, estimated a reduction of about 3,300 inmates by 2023 for an annual savings of $48.5 million. The report did not calculate what additional local costs would result from communities dealing with an influx of misdemeanor cases.

One of the arguments in the OMB report is that Issue 1 could result in more high-level felonies because prosecutors would be less inclined to cut deals for defendants to plead guilty to a lesser charge.

But Haller, who adamantly opposes Issue 1, said prosecutors don't have a quota for how many people they send to prison, and will continue negotiating plea bargains when appropriate.

Q: Will violent criminals be let out of prison early?

A: Issue 1 would allow anyone in prison to earn a credit of up to 25 percent off their sentence for participating in rehabilitation programs. The only exceptions are people sentenced to life in prison without parole, those sentenced to death, and those convicted of murder, rape or "child molestation," according to the amendment.

Child molestation is not a named offense in the Ohio Revised Code, so opponents argue that this could mean those convicted of sex crimes involving children would be eligible for the credit program.

Ohio currently offers a credit program, but the maximum limit is 8 percent, and the credit is earned more slowly.

Under the rules for earning credit outlined in Issue 1, an inmate sentenced to three years in prison would need to participate in programming every day for half of their sentence -- one and a half years -- to earn the maximum credit of nine months off their sentence.

What would qualify as programming would be left up to the Department of Rehabilitation and Correction.

Those opposed to the credit program say they worry about the impact on victims who were told the offender was sentenced to a certain number of years, only to find later that the sentence was shortened.

"If you have a crime of violence where there is a victim involved ... are we being transparent, especially with victims?" Haller said.

Supporters say credit programs help those coming out of prison be better prepared for jobs and life on the outside.

"Public safety doesn't need to look like punishment," JohnsonGrove said. "It needs to look like people's lives getting better."

Q: Will Issue 1 kill drug courts?

A: Drug courts are specialized dockets in which judges often try to find alternatives to incarceration for defendants who are addicted. They may offer probation as long as the person goes to treatment, or they can order defendants into more intensive rehab settings like the MonDay Community Correctional Institution in Dayton.

Haller said drug courts and other diversion programs have been successful in connecting people with treatment, as evidenced by the low number of people in prison from Greene County for minor drug possession offenses.

"That's been a conscious effort over the past couple of years to get people into treatment and community control," he said.

But he and other Issue 1 opponents are concerned those existing programs will be less successful without the threat of prison to encourage compliance with drug treatment.

Under Issue 1, possession cases would be moved to misdemeanor courts and no jail time would be allowed for the first two offenses within a two-year period.

Supporters argue that judges can still implement punishments to those who fail to complete treatment, including jail time.

Thomas, the Democratic senator from Cincinnati, said the measure marks a return to how drug addicts were treated prior to the so-called war on drugs.

"We treated it as a health issue," he said. "And we were tough on those selling the drugs."

Q: Why a constitutional amendment?

A: Even some groups that have voiced support for the reforms outlined in Issue 1 say they are concerned that it will become part of the state constitution if passed.

"We agree with the premise that people with substance use disorders need pathways to recovery that include access to treatment, not felony convictions for use or possession," said Lori Criss, CEO of the Ohio Council of Behavioral Health & Family Services Providers.

But, she added: "We oppose using a constitutional amendment as the means for criminal justice reform. It does not afford the flexibility to make changes when negative consequences of the policy arise, or to address issues and conditions that were unforeseeable at the time it was created."

In order to make a change once something is in the Ohio Constitution, voters must approve another amendment, which can be initiated by voter petition or by approval of 60 percent of both chambers of the legislature.

JohnsonGrove, an attorney and deputy director for policy with the Ohio Justice and Policy Center, said a constitutional amendment is necessary because Ohio lawmakers have been reluctant to implement changes that would decrease the number of people sent to prison. The Ohio prison population has been steady at just under 50,000 since 2007, and a disproportionate number of those inmates are people of color, he said.

But others point to the creation of drug courts and programs that are connecting overdose victims with treatment programs as evidence that Ohio's lawmakers are working to solve the addiction crisis.

"Issue 1 is just plain bad public policy," said Chris Kershner, executive vice president of the Dayton Area Chamber of Commerce. "Issues such as this one deserve to have bipartisan consideration and debate in our state legislature, not put directly in our state constitution."

Story Filed By Cox Newspapers

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