MOUNT VERNON — Local judges contend that in its quest to reduce the state prison population, Issue 1 leaves many questions unanswered.
Common Pleas Judge Richard Wetzel said one gray area not addressed is the role of community based correctional facilities and halfway houses. Offenders are often sent to these facilities for treatment as an alternative to going to prison. Their time in CBCFs and halfway houses count toward their prison sentence.
CBCFs require offenders to spend three days in jail to detox before being admitted to the facility. Issue 1 prohibits offenders being sent to jail.
“Does this mean I cannot sentence them to a CBCF or halfway house?” asked Wetzel. “They get drug treatment there, help with getting their GED, many of the same things they would get through MERIT Court.”
“That's the purpose of rehab,” said Municipal Judge John Thatcher. “If they don't do anything, they will be the same person they were before.”
“Four months in a facility like that is a lot less costly than prison, and they might not be able to go there [under Issue 1],” said Knox County Prosecutor Chip McConville.
The Ohio Department of Rehabilitation and Corrections anticipates saving more than $136 million annually if Issue 1 passes. Seventy percent of the savings the first year goes toward funding treatment programs and services. The remaining 30 percent goes to crime victim, adult and juvenile probation, and rehabilitation programs. The issue requires at least half of the 30 percent to go to crime victim trauma programs.
“When you dive into it, the mechanism is not stated how the money will get transferred to the courts,” said Thatcher.
A report released Thursday, Oct. 11, from the Ohio Office of Budget and Management estimates Issue 1 would save $1.3 million a year and shift costs to local communities and municipal courts.
California's Proposition 47, which passed in 2014 and also calls for reducing some drug felonies to misdemeanors and sentence reductions, estimated savings in the low hundreds of million dollars annually. Through June 2017, savings totaled $103 million for the three years.
Both judges believe that their inability to impose jail or prison for non-criminal probation violations will affect public safety. Wetzel cited violating an exclusion zone, considered a non-criminal probation violation under Issue 1, as an example. Exclusion zones are areas where an offender is not allowed to go, such as near a partner in a domestic violence situation, a sex offender near a school, or someone who leaves the house while on house arrest.
The non-criminal violations provision covers felonies such as aggravated arson, burglary, and drug trafficking as well as drug possession and use.
“The purpose of imposing conditions is so we know where they are and what they are doing,” said Wetzel. “If we don't know, we can't protect the public.”
Under Issue 1, inmates can apply for a sentencing credit of 0.5 days for each day the offender participates in rehabilitative, work, or educational programs. Inmates serving time for human rights trafficking, kidnapping, felonious assault, aggravated robbery and other violent crimes, as well as those serving time for drug possession, can get their sentence reduced up to 25 percent through the credits. The exceptions are those serving time for murder, rape, or child molestation.
Wetzel questions whether that is a double standard, given that offenders on probation cannot be held accountable if they do not follow through with court-ordered educational and rehabilitative programs.
“Why is it different for that group and not the ones in public?” he asked. “If they don't comply in public and it is not a technical violation, now once they are in prison they can do these things and get credit? The public expectation is that a probation officer is looking out for the public.”
Upsetting the Balance of Power
Ohio, like all other states, has separation of powers between the legislative, executive, and judicial branches. The intent is to prevent the concentration of power and provide for checks and balances. Wetzel feels that line is becoming increasingly blurred.
Those already in prison, with the exception of murder, rape, or child molestation, can reduce their sentence up to 25 percent by participating in rehabilitation, educational, or work activities. Child molestation is not a defined term under the Ohio Revised Code.
“Who will define that term? How will appropriate activities be determined? Who will determine them? The Ohio Department of Rehabilitation and Corrections? The sentencing judge?” asked Wetzel.
He cited Issue 1 as an example of the executive branch usurping judicial authority and T-CAP as an example of the legislature overriding the judicial branch. T-CAP (Targeted Community Alternatives to Prison) requires F5 offenders to be treated or incarcerated within the community rather than being sent to state prison.
“What happens when I have to tell a victim of a crime 'I'm sorry, I can't do anything because I'm not allowed to'?” he asked. “When the state takes authority away from the other branches, then you have an imbalance. The judicial branch continues to lose authority in the local community.”
Issue 1 makes possessing or using up to 20 grams of fentanyl, meth, heroin, date-rape drugs, and other deadly drugs a misdemeanor resulting in probation, a lighter punishment than disorderly conduct and reckless operation. Prosecutor McConville said this will make it much more difficult for prosecutors to prove trafficking (selling) and that offenders are already repacking in smaller quantities to get under the bulk amount Issue 1 allows for fentanyl.
“It's going to make Ohio a very attractive place for drugs,” said Thatcher. “We're going to see a significant amount of drug trafficking, probably deaths, and we'll lose people in treatment because we can't make them go.”
“Twenty grams is enough to kill about 10,000 people, so it's a horrendous risk,” said Wetzel.
Proponents of Issue 1 say that F5 and F4 offenses are minor and offenders in prison should be released. Nationally, more than 90 percent of offenders are incarcerated because of plea bargaining down from a more serious offense.
“If Issue 1 passes, I think you will see prosecutors process those higher offenses as trafficking,” said McConville. “You won't see plea bargains anymore.”
Under Issue 1, inmates serving time for possessing, buying, or using drugs can request the court to change their status and be re-sentenced or released. Thatcher said this will have a ripple effect on appeals.
“Appellate courts will fill with offenders appealing their convictions,” he said.
Wetzel noted that reducing drug use from a felony to a misdemeanor significantly impacts employers' ability to find employees who can pass a drug test. Nationally, 4.2 percent of American workers test positive for illicit drugs, the highest rate in more than a decade.
“The population will increase in the number of people who cannot test clean for drugs,” he said.