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HB 86 and drugs

HB 86, the new sentencing reform package recently signed by the governor and slated to go into effect in September, does more than just reform sentencing:  it also makes numerous revisions to the drug laws.  Much of the change there is intended to achieve the bill's main purpose, which is to reduce Ohio's prison population by, in part, making it less likely that people will be sent to prison.  Here's a short synopsis of the changes that HB 86 makes in the drug laws.

The first change comes in RC 2925.01, the definitional section of the chapter on drug offenses.  Only one change there, but it's a biggie:  say goodbye to crack cocaine.  As every defense attorney and a lot of other people know, since the emergence of crack in the 80's, the law (both state and federal) has drawn a distinction between rocks and powder, with penalties for the latter requiring anywhere from 5 to 100 times more in amount than penalties for the former.  For example, right now a five grams of crack will get you a third degree felony and a mandatory prison term.  You could have up to 100 grams of powder before reaching that level.

But when we get to the trafficking statute (and the possession statute works the same way for the amounts), we find that what the legislature really did was change the amounts for the higher-level powder offenses so that it is in line with what defendants used to get for having that much crack.  The penalties remain the same at the low end:  five grams or less of cocaine, regardless of the type, is a fifth degree felony, and between five and ten grams puts you at a fourth degree.  From there, though, things accelerate:  the top level for a third degree felony is reduced from 100 grams to 20, for a second degree felony from 500 to 27, and 1,000 to 100 for a first degree felony.  As before, a juvenile or schoolyard specification hikes it one level.  (And, not to give anybody any ideas, but if you read the definition closely, it appears that if get caught with drugs in your house and your neighbor has a kid, you could get a juvenile spec; as long as the juvenile is within 100 feet, it doesn't matter whether you're aware that the juvenile is there or whether he sees you commit the offense.)

There's also a change in how imprisonment is handled.  A fourth degree felony used to carry a presumption of imprisonment; it now basically requires a community control sanction except in certain circumstances, as I'll explain next week when we discuss HB's changes in sentencing.  A third degree felony used to require a mandatory prison term, and still does, but only if the offender has two prior felony drug convictions; otherwise, there's simply a presumption of imprisonment.  Conviction of a first or second degree felony requires mandatory imprisonment, and if the amount is over 100 grams, the defendant is a major drug offender and the court has to impose the maximum penalty for a first degree felony, which is now 11 years.  One other thing, though:  the additional penalty for a major drug offender specification -- an additional prison term of one to ten years -- has been eliminated.

Cocaine isn't the only drug to receive modified treatment under HB 86, but for the most part, the changes in other drugs merely pertain to sentencing issues, and parallel those with cocaine.  A third degree felony for a Schedule I or II drug, like Ecstasy, used to require mandatory imprisonment for trafficking, but now only creates a presumption for imprisonment, as possession of the drug does.  Trafficking in a Schedule III, IV, or V drug, in greater than bulk but less than five times bulk is still a fourth degree felony, but the presumption in favor of imprisonment has been removed.  The same applies to fourth degree felony charges for heroin.

The amounts required for the upper-level penalties in marijuana trafficking have been changed.  It used to be that more than 20,000 thousand grams would get you a 2nd degree felony and a maximum sentence; under the new law, you have to exceed 40,000 grams to reach that.  Between 20,000 and 40,000 is still a second degree, but now gets you a mandatory prison term of 5, 6, 7, or 8 years.  Possession gets you the same penalties, but as in all possession offenses, the difference is that juvenile and schoolyard specs don't apply.  Hashish is given the same treatment:  1,000 grams of hash in solid form, or 200 in liquid form, used to get you maxed out on a second degree felony, but now the upper limits are 2,000 and 400, respectively.

The statute on meth manufacturing is also modified in the same respect, except that there's never any presumption in favor of community controls, primarily because all the offenses in that regard are third degree felonies or above.  The modification is that mandatory prison terms, in some respects, have been reduced to presumptions in favor of imprisonment.

As I said, other than the treatment of crack and powder cocaine, the big changes in the law on drug offenses wrought by HB 86 is to make it more unlikely that someone's going to go to prison for committing those offenses.  Next week we'll take a look at exactly how that works, not only drug offenses, but for other crimes as well.

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