Next month, Ohio residents will vote on Issue 1, a ballot initiative that could “deal a blow to the war on drugs and mass incarceration,” according to German Lopez of Vox. It would “reduce drug possession offenses to misdemeanors, so they are no longer classified as felonies with harsher penalties” for a person’s first two convictions. It would “then use the money saved (because the state wouldn’t lock up as many people) on addiction treatment and crime victim funds.” And it would make the new drug statutes retroactive: People currently incarcerated for drug offenses could petition for new sentences. If Ohio passes the initiative, it would join five other states that have already reclassified drug possession as a misdemeanor, all since 2014 (California and Oklahoma have done so via referendum); only California allowed retroactive revisions, according to the Urban Institute.
It would also allow most prisoners, except for those convicted of murder, rape, or child molestation, to reduce their prison sentences by up to 25 percent by participating in prison rehabilitation programs.
Issue 1 would also bar judges from sending people to prison because of minor probation violations that aren’t themselves a crime. Today, people on probation are subject to long periods of incarceration for what are often called “technical violations,” which can include missing an appointment. Across the country, a significant percentage of prison admissions every year are for technical violations of parole or probation. As a public defender, this Daily Appeal curator saw clients incarcerated for missing probation check-ins, including, once, an appointment that her client was not informed about until after the appointment time had passed.
Policy Matters Ohio, a group that backs Issue 1, estimates that these provisions combined would decrease the prison population by approximately 10,000. The Urban Institute finds that simply by making drug possession a misdemeanor, the initiative would cut it by 3,400. The warnings about the safety risks of reclassifying drug possession as a misdemeanor are not supported by a new Urban Institute study about the impact that doing so has had in five states. “Reducing incarceration for drug offenses can produce significant public safety benefits when paired with investments in drug treatment and crime prevention strategies,” the authors write.
Many outspoken opponents, most of them Republican, seize on the funding that Issue 1 has received from donors outside the state, including the Chan Zuckerberg Initiative, the Open Society Policy Center, and the Open Philanthropy Project. This argument is difficult to take seriously, however, since in 2010 and 2014, the Koch brothers poured funds into statehouse races, giving Republicans control over 70 percent of state legislatures, the highest number in the party’s history. While fault lines have been largely partisan, prominent exceptions are Steven Dettelbach, the Democratic nominee for attorney general, who opposes the measure, and former Republican Speaker of the House Newt Gingrich, who teamed up with Van Jones to write an op-ed in support of Issue 1.
The Ohio police officers union, prosecutors’ union, and sheriff’s association have come out against the ballot initiative, as law enforcement seems to have adopted a knee-jerk reaction in opposition to most criminal justice reforms. Perhaps somewhat surprisingly, many groups of judges have come out against it, including judges who preside over drug courts, which are meant to give fair and treatment-oriented sanctions to those charged with drug offenses. “It eliminates the single most important factor in rehabilitating people and helping them get off drugs, which is the threat of imposing a prison sentence for violating probation or continued criminal behavior,” Ohio Judge Jeannine Pratt wrote in a recent op-ed.
But this critique does not stand up to scrutiny. Responding to similar arguments from a different drug court judge, David Singleton, a law professor and the executive director of the Ohio Justice and Policy Center pointed out that Issue 1 does not take away a judge’s ability to send a person to jail, only the ability to send that person to prison for long periods of incarceration. “We don’t need the sledgehammer of prison,” said Singleton. “There are other ways to hold people accountable. For instance, graduated responses. If behavior is negative, there’s a consequence that is certain, swift, proportionate to what the violation was, and fair. There’s a range of options that judges have on the table.” A judge could obligate a defendant to come in more often, wear an ankle monitor, or do a stint in jail.
And research has shown that swift and certain punishments can be effective. A now-famous study of the so-called HOPE program in Hawaii found promising results. The program began with a formal warning, given by a judge in open court, that any violation of probation will result in an immediate, brief jail stay. Probationers were not required to appear before judges regularly, but were subject to random drug tests without advance notice. If they failed, they were sentenced to a jail stay lasting a few days, to be served on the weekend or whenever would not interfere with the person’s work schedule. After repeated missed or positive drug tests, residential or other treatment might be mandated. Compared to probationers in a control group, after one year those in the HOPE program were found to be 55 percent less likely to be arrested for a new crime and 72 percent less likely to use drugs.
“As a judge, I always consider rehabilitation rather than incarceration,” wrote Judge Pratt. “If Issue 1 passes, judicial discretion will be removed and we as a Judiciary will no longer be able to determine the length of offender’s prison sentence nor will we be able to send multiple repeat drug offenders to prison under most circumstances.” Decreased power seems to be a more sincere reason for judicial opposition, much like the judicial opposition to the initial bail reform bill in California. Another Ohio drug court judge recently hosted a town hall in his own courtroom about Issue 1, inviting only those who already agreed with him. There, he lamented that if Issue 1 passes, “my drug court would shrink drastically.”
Update: Issue 1 was defeated on Nov. 6.