More changes
Lucky for Ohioans that we have West Virginia. In 2016, there were more drug overdose deaths per capita in Ohio than any other state except the one on our southeast border.
There's some good news. Prescription drug overdose deaths here hit an eight-year low in 2017, and the number of heroin-related deaths last year was the lowest in four years. The bad news is that drug deaths increased 20% anyway. Some of that is due to a 39% increase in cocaine-related deaths, but the biggest driver was fentanyl, an opioid 50 to 100 times more powerful than heroin. Of the 4,854 deaths in Ohio attributable to drugs last year, fentanyl was responsible for 3,431 of them.
The emergence of fentanyl has come as a surprise. In fact, the legislature had failed to establish a bulk amount for fentanyl, as the Ohio Supreme Court pointed out earlier this year in State v. Pountney, which meant that possession of less than 20 grams of the substance was a fifth-degree felony.
Nineteen grams of fentanyl is enough to kill ten thousand people.
The Ohio legislature swung into action, and effective Wednesday, the drug statutes were amended to substantially increase the penalties for fentanyl. Trafficking or possession of that nineteen grams now gets you a mandatory prison term for a second degree felony. Actually, it's worse than that: if you have nineteen grams of any substance which contains fentanyl, you get the same penalty.
Unless Issue 1 passes next Tuesday. If it does, all those amendments go away.
Issue 1 has four main components. The most controversial is that fourth and fifth degree felony offenses involving possession of any drug would become a misdemeanor. (Penalties and classifications for trafficking in drugs are unaffected.) The fentanyl amendments become a dead letter, for the most part: to be exempted from Issue 1, the drug offense had to be classified as a first, second, or third degree felony as of January 1, 2018. And under Pountney, fentanyl possession of less than 20 grams was a fifth degree felony.
And if you do get a misdemeanor conviction, what a judge can do with you is severely limited. For a first or second offense within two years, the only permissible punishment is probation. Jail becomes an option only after a third conviction in that period. And if you've been convicted of a felony offense which would be a misdemeanor under Issue 1, and you've served your sentence, you can petition the court to reclassify the offense.
The proposal goes well beyond drug offenses. If you're on probation for a felony, you can't be sent to prison for a non-criminal violation. (Picking up a new case would certainly qualify as a criminal violation, but dropping dirty urine probably wouldn't, and not showing up for meetings with your PO, not paying costs and fines, not doing community work service, or just about anything else definitely wouldn't.) If you're in prison, you get half a day credit for your participation in any "rehabilitative, work, or educational programming," up to a maximum of 25% of your sentence. Currently, it's up to five days per month per program (maximum ten days), to a maximum of 20% of your sentence.
But it's the effect on drug offenses that has judges, cops, and prosecutors up in arms. Chief Justice O'Connor has written editorials like this one warning of the disastrous consequences should Issue 1 become law. The judge of the common pleas drug court here meets with prospective jurors every Monday and Wednesday to launch into a jeremiad against the proposition.
The alarm is somewhat understandable. One of the chief criticisms of Issue 1 is that while the move from punishment to treatment for drug offenses, the purported goal of the ballot measure, is laudatory, that should be achieved by legislation, not constitutional amendment. If O'Connor's prophecy that the issue would make Ohio a haven for drug dealers comes true, there's nothing anybody can do about it except pass another constitutional amendment, which is sort of like turning an aircraft carrier on a dime.
The other criticism is that it takes away the stick as a means of treating addiction: for a lot of addicts, the threat of incarceration, combined with the carrot of treatment, is a powerful incentive to wean themselves off drugs.
There's some merit to that. My client Sandra, whose encomium of me we discussed on Wednesday, spent sixty days in jail in Lake County and a couple of weeks here in county, and that was a sufficiently horrific experience to get her to swear off drugs.
At least for now, but that's the problem. Any drug treatment modality acknowledges the likelihood of relapse somewhere along the way, and often several of them. Yet I know numerous judges who adopt a one-strike policy for probation: you test dirty, and you're gone. Instead of remaining on probation and getting more intensive treatment, you do a six-month prison sentence and come out, usually with no supervision after that. (Yes, you're subject to discretionary post-release controls, but the Adult Parole Authority rarely imposes them on low-level felonies anymore.) The futility of treating addicts by sending them to prison is well-known at this point, yet we still do it all too often.
We'll see what happens on Tuesday. The latest poll shows 43% supporting the Issue, while 39% are opposed; the rest are undecided.
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