Sign up to receive updates about events and research from DEPC.
Drug Sentencing Reform in Ohio
By Drug Enforcement and Policy Center Staff | Spring 2021
Tracing the evolution of Issue 1, HB1, and SB3
Since 2014, seven states have enacted reforms that have defelonized low-level drug offenses: Alaska, California, Colorado, Connecticut Oklahoma, Oregon, and Utah. In late 2020, the Ohio House of Representatives opted not to join this growing list by declining a vote on Senate Bill 3 which sought to reclassify some low-level drug offenses from felonies to misdemeanors. Its origins can be traced back to the ambitious, but ultimately failed, 2018 Issue 1 ballot initiative. The constitutional amendment initiative included language aimed at reclassifying as misdemeanors those offenses related to drug possession and use, prohibiting courts from sending people back to prison for non-criminal probation violation, and reallocating savings created from lowering prison populations toward drug treatment services. Like SB3, Issue 1 was vehemently opposed by judges and prosecutors around the state.
Though SB3 stalled, an array of other criminal justice reforms were enacted in the last General Assembly of 2020, including House Bill 1. HB1 allows more wrongdoers to potentially benefit from alternative dispositions and record sealing. Some argued that the passage of HB1 addressed sufficiently some of the concerns driving support for SB3.
DEPC has gathered a variety of other resources to aid in understanding the complex evolution of criminal justice and drug sentencing reforms in Ohio, including a visualization of Ohio incarceration rates and a timeline of Ohio reforms since 2010. Please see below for commentaries and writings on current and past drug sentencing reform efforts in Ohio, DEPC’s prior events focused on Ohio’s criminal justice reforms, and research aimed at answering some of the most important questions raised by proponents and opponents alike.
Tracing Incarceration Rates and Reforms in Ohio from 2010 to 2021
Explore the developments in incarceration rates and major criminal justice and drug sentencing reform efforts in Ohio since 2010. While Issue 1 (2018) and SB 3 (2020) did not pass, we’ve included them in the timeline for reference. Incarceration data is not yet available for 2020-21.
Commentaries and Writings
Explore our collection of current and past commentaries and writings on the topic of criminal justice and drug sentencing reform in Ohio. The collection includes leading voices representing a variety of political viewpoints and policy positions.
Project Update: Ohio Criminal Sentencing Database and Data Platform
Learn more about the Ohio Criminal Sentencing Commission's (OCSC) work to create a sentencing database and data platform.
The Uniform Sentencing Entry and Method of Conviction Entries are the first steps to begin standardized, aggregate felony sentencing data collection in Ohio.
The Ohio Sentencing Data Platform is designed to help judges implement the Uniform Sentencing and Method of Conviction forms and to empower courts with accessible and reliable information.
Report: Ohio’s Statehouse-to-Prison Pipeline 133rd General Assembly (2019-2020)
This report from ACLU of Ohio analyzes criminal-justice related bills introduced by Ohio lawmakers during the last two-year legislative session.
Report: Increase in number of felony offenses since 1974/1976
This report from the Ohio Legislative Service Commission provides detailed information on the increase in number of felony offenses in Ohio since 1974/1976.
House Bill 1, Senate Bill 3, and the Future of Criminal Justice Reform in Ohio
By Andrew Geisler, legal fellow, The Buckeye Institute
Ohio’s 133rd General Assembly began with great promise for criminal justice reform. Both the Ohio Senate and Ohio House of Representatives prioritized reform legislation designed to help individuals addicted to drugs to rebuild their lives, rather than face harsh criminal sanctions and the corresponding crippling collateral consequences. And although the General Assembly failed to pass Senate Bill 3, House Bill 1 makes important changes to the front-end of the sentencing process by expanding intervention in lieu of conviction, and it expands record-sealing eligibility. Unfortunately, as The Buckeye Institute has argued, although House Bill 1 provides a sturdy foundation for additional evidence-based reforms, it does not address other critical concerns that balance the need to treat all Ohioans fairly while keeping the public safe. Such concerns leave room for further reform and improvement.
First, Ohio must make it easier for those convicted of drug possession to have a meaningful opportunity to find work and rebuild their lives even before they are eligible for record-sealing. Senate Bill 3 tried to solve this problem by reclassifying fourth- and fifth-degree felony drug possession offenses as unclassified misdemeanors, thereby ensuring individuals struggling with addiction would not be saddled with a crippling felony conviction for the rest of their lives. Policymakers interested in removing barriers to opportunity should revisit this reform.
Second, Senate Bill 3’s failure means Ohio’s outdated drug sentencing law remains in place. Senate Bill 3 made many technical, uncontroversial changes to the drug sentencing code. Policymakers could pursue these significant, but less controversial, reforms and find ways to implement the Ohio Criminal Justice Recodification Committee’s recommendations to modernize the state’s drug sentencing.
Third, policymakers should consider making Ohio’s successful Targeted Community Alternatives to Prison (T-CAP) program mandatory. T-CAP provides participating counties with Ohio Department of Rehabilitation and Correction grant funding if the county agrees not to send fifth-degree felony offenders to prison and instead will rehabilitate the offenders in the community. This worthwhile effort to keep low-level drug offenders out of state prisons began as a pilot program in 2018, but now has 60 of Ohio’s 88 counties participating.
Fourth, Ohio is a national outlier in its earned and good time credit policies for inmates. Ohio inmates may earn back only up to eight percent of their sentence through good behavior or participating in educational, vocational, or other training programs. By contrast, Indiana offers inmates the chance to earn back 33-percent of their sentence, and Kentucky offers the possibility of earning back 72-percent of a sentence. Ohio’s eight percent maximum creates little incentive for inmates to behave while incarcerated, which in turn makes the state’s prison more dangerous for inmates and security officers.
And finally, Ohio must find ways to generate and maintain more criminal justice-related data. Without it, policymakers and advocates are left flying blind, relying on anecdotal evidence rather than empirical research and information. Ohio-specific data is imperative for further reform discussions and sound policymaking.
State policymakers took a significant step forward in passing House Bill 1. However, additional criminal justice and sentencing reforms remain necessary. Policymakers and advocates should continue to ask: How can Ohio treat non-violent offenders more fairly? What policy tools will reduce the state’s prison population to prevent overcrowding? And how can Ohio work from a rigorous data-driven baseline rather than anecdotal evidence? Asking these questions and thoughtfully pursuing their answers will help Ohio build upon the success it has recently achieved, and continue to balance public safety and fair treatment under the law.
by Gary Daniels, Chief Lobbyist, ACLU of Ohio
In December, Ohio wrapped up its latest, two-year legislative session. Two huge variables impacted the 133rd General Assembly’s work – yet another house speaker corruption controversy and, of course, COVID-19. Still, per usual, the session was a mix of helpful advancements and tweaks to our criminal legal system combined with ongoing and stubborn support for the failed status quo.
First, the good news. With the passage of several bills, Ohio legislators demonstrated their growing sensitivity to a system that often does not provide or promote justice. HB 136 spared those with specific and severe mental illnesses at the time of their crime from the death penalty. SB 256 revised Ohio’s practice of sentencing juveniles to life without parole. HB 263 brings big changes to Ohio law regarding professional licensing and felony records. HB 285 made permanent Ohio’s Driver's License Reinstatement Fee Debt Reduction and Amnesty Program. Finally, HB 1 further expanded alternatives to prison for those with drug issues, increased record sealing, and banned unnecessary shackling and confinement of pregnant people in court, jail, and prison. It also ushered in some important changes to Ohio’s practice of sending people to or back to prison if they violate non-criminal restrictions while on probation or post-release control. In my dozen-plus years of Statehouse lobbying, this past session’s collection of positive bills stands out.
Still, despite these needed and welcome changes, these bills all fundamentally still prop up an outdated, counterproductive, mass incarceration system. In addition to making it easier for people with little money to regain their drivers’ licenses after suspension, why not greatly reduce the number of reasons licenses get suspended and the punitive, high costs of reinstatement? Instead of considering what few mental illnesses will spare a very small amount of people from the death penalty, let’s debate capital punishment itself. Why is our overwhelming approach to drug addiction entirely rooted in police, courts, and prisons? Too often, legislators focus on the back end of a problem without much desire to fix how we got somewhere in the first place.
The most notable criminal justice development last session was the failure of Senate Bill 3 to cross the finish line. At its core, SB 3 would have reclassified some drug possession offenses as misdemeanors. This proposed change was recognition that further saddling those with drug problems with felony records and imprisonment instead of treatment does not work and instead hurts. If people are to succeed and move past their problems government should not be constructing often arbitrary barriers that too often set people up for failure.
SB 3, too, was flawed. It did not go nearly far enough. Many Ohioans would have never enjoyed its benefits because of various restrictions based on substances and the number of past offenses. It still allowed for up to 364 days of jail time. Most importantly, it was not retroactive. There are other examples. But SB 3 passage also would have easily been the biggest change to Ohio’s drug sentencing and policy laws since the enactment of then-House Bill 86 in September 2011.
SB 3 enjoyed wide support across the state from advocates, stakeholders, and those personally impacted by drug addiction and incarceration. This support was bipartisan and stretched across ideological lines. To their credit, supporters all went down swinging.
So, what happened? The same thing that happens at the Statehouse every single time Ohio gets a sniff of meaningful, systemic changes – Ohio’s prosecutors and judges flexed their considerable influence to sink SB 3 during lame duck after it reached the House and passed the House Criminal Justice Committee with a 7-3 vote.
Certainly, Ohio’s prosecutors and judges do not deserve all the blame. It takes two to tango and they ultimately found a willing partner in House Speaker Cupp. Despite considerable bipartisan support for SB 3 among House members, Cupp, a former judge and prosecutor, refused to allow it on the House floor for a vote. But, even if SB 3 ultimately cleared its House hurdle, it appears Gov. DeWine would have vetoed it so long as the felony to misdemeanor provision remained. And, minus that language, there was essentially no bill and no point.
While I am heartened SB 3 passed the Senate with an overwhelming 25-4 vote, this session the Senate looks much different. Key players Sen. Eklund (primary cosponsor, chair of Senate Judiciary, and SB 3’s biggest champion), Sen. O’Brien (Democrat primary cosponsor, member of Senate Judiciary), and Senate President Obhof are no longer members of the legislature.
After a two-year long battle over SB 3, how long will it be until we see the same or a similar type of drug sentencing legislation again? Bills like Senate Bill 3 are rare in Ohio. Indeed, Ohio’s appetite for tackling this problem appears to be on a once-a-decade pace, at best. Meanwhile, prison system data reveals the number one reason, these past seven consecutive years, people are sent to an Ohio prison is because of drug possession.
Other states, including those with Republican-led legislatures and governors, continue to enact impressive changes on a wide range of criminal legal and mass incarceration issues. Not so in Ohio. Our legislature’s (often bipartisan) preference is for positive bills that tweak the existing system and are often celebrated as “reform” while passing far more negative bills that keep bloating our dangerously overcrowded prisons and jails. This juxtaposition is Ohio’s modus operandi.
This will remain the situation so long as Ohio’s prosecutors and judges opposed to reform continue their outsized and disproportionate influence at the Statehouse. They have successfully sold themselves to many legislators as the only ones worth listening to or believing. Many also have well-established connections with those legislators they lobby or advise.
Therein lies the truth about the world of the legislature on mass incarceration (among other) issues; long-time, personal and professional contacts very often trump policy. Familiarity is encouraged, true systemic change is not.
If the question is, what is next for reform in Ohio then my answer remains I have not yet seen true reform from our Statehouse in my 22+ years with the ACLU of Ohio working on these issues. A heady brew of partisanship, a disconnect from those suffering the failures of our system, the influence of prosecutors and judges, and a default attitude against change all contribute to Ohio’s noticeable lack of action compared to so many other states.
Perhaps I would be slightly more optimistic if even one of the 1,194 total bills introduced last session addressed the COVID-19 human rights crisis in Ohio’s prisons. But, our elected leaders could not manage even one.
The ACLU of Ohio will continue to work with any and all legislators and Gov. DeWine on all these matters; to oppose the numerous bad bills and assist with and promote the good ones. We desperately wish to celebrate true reforms and in Ohio and will do our best to make that happen because the lives of so many Ohioans depends on it.
by Micah Derry, state director, Ohio chapter of Americans for Prosperity
One admonishment has always held an important place in the back of my mind throughout my career. In the mid-nineteenth century, the British politician Benjamin Disraeli cautioned allies that, “Finality is not the language of politics.” I hold today that the best advice one can give is something simple that applies to many circumstances, and why one sufficiently vague statement best captures the state of criminal justice reform in the Ohio legislature, not the least of which is the environment surrounding the successful passage of House Bill 1 during the 133rd General Assembly.
HB 1 was a relatively simple piece of legislation that encapsulated what most conservatives would call “common sense” changes to the Ohio Revised Code. While most organizations and advocates within the criminal justice reform movement would stop short of celebrating the bill as any type of landmark reform, it is definitely a useful codification of many tools that reform-minded judges and advocates have been calling for over the past decade.
Some key changes contained in HB 1 include:
- Significantly broadening the scope of intervention in lieu of conviction to include an eligibility hearing in any case in which the defendant alleges drugs or alcohol were a contributing factor to the alleged crime;
- Greatly increasing the number of individuals eligible for record sealing by eliminating a cap that was previously based on the number of F4, F5, and misdemeanor convictions a convicted individual held;
- Slightly reducing the amount of technical violations that can land an individual back in prison;
- And, through a late amendment, the practice of shackling of pregnant women was at long last banned.
Overall, the legislation was sufficiently vetted, meaningful, and well-reasoned, although in truth it contained practices that to some extent were already being utilized in many courts across the state.
So, why did HB 1 matter, and why did it garner the support of the likes of prosecutors and hardline judges, even if it were through clenched teeth?
To appreciate the impetus behind HB 1 we have to recognize several of the players on the political field and the events that opened opportunities for progress, albeit incremental.
In 2018, the general election ballot contained the sweeping “Issue 1” initiative that would have stripped felony penalties for possession, including for repeat offenses, and would have handcuffed many recovery programs all through a constitutional amendment. While the opposition coalition was not well funded, it was highly effective in getting out messages around the non-felony status of dangerous drugs such as fentanyl. Even more effective for many right-of-center voters was constant reminder of the fact Issue 1 was a constitutional amendment – any changes or tweaks that would need to be made to the policy would be a logistical nightmare. The issue failed by more than a million votes, 63% of Ohioan voters selecting “no”.
However, the main problem with Issue 1 wasn’t its policy reform agenda, the problem was with the fact that these issues were attempting to be tackled through the vehicle of a constitutional amendment. Recognizing the sentiments of Ohioans justifiably concerned about our broken criminal sentencing system, policy champions in the Ohio Senate, most notably Larry Obhof, John Eklund, and Rob McColley, got to work partnering with visionary House members, such as Bill Seitz and George Lang, to introduce a true drug sentencing reform package by incorporating recommendations made from the Ohio Criminal Justice Recodification Committee report that largely had been gathering dust on legislators’ shelves since it was issued in 2017. The resulting package was Ohio Senate Bill 3.
Faced with a structural shift that would reverse many failed policies of the past twenty years, the stalwart, ever-present opponents of reform threw their support behind the much less threatening HB 1, which paved the way for near unanimous votes on both chamber floors while SB 3 ultimately faltered in the final days of the 133rd General Assembly to reach a final vote in the House, despite herculean efforts from the aforementioned legislators, and an ideologically diverse coalition of supporters.
The questions on the minds of many in the advocacy realm center on the conflicting signals we get from the legislature. The votes are certainly there for meaningful reform, but the political gamesmanship behind the scenes only allows advocates to nibble at the edges of Ohio’s problems without getting to the heart of our biggest issues.
The good news is legislators are increasingly aware of the impact of collateral sanctions. The bad news is several key agitators in the Republican wing of the legislature, themselves oftentimes not having been exposed to any legal training or relevant professional experience in the legal field, promulgate more and more penalty enhancements and new felonies at an alarming rate. Since 1974, Chapter 2925 of the Ohio Revised Code which contains drug related penalties, has increased the number of felonies by 394% with the predictable result of massive increases in incarceration.
House Bill 1 proved one thing: collateral sanctions and the plight of the formerly incarcerated who are struggling for stability and recovery do have receptive ears in the legislature. But competing legislation also continues to remind us that no won ground is to be taken for granted, and no message sells itself.
As long as advocates remember that “finality is not the language of politics”, remember to celebrate all wins regardless of their size, and continue to fight for long term reforms, we remain on trajectory for a brighter future for Ohio.
by Judge David Matia, Cuyahoga County Court of Common Pleas General Division
Do we blame Lake Erie for the pollution entering it from streams and rivers? Of course not. We know that lake pollution originates from farm runoff and industrial waste entering the water supply from rivers and sewers. As a society, we know that it's easier to stop pollution upstream, rather than trying to eradicate it once it enters Lake Erie. The advances made to improve the quality of lake water in the last five decades have all been made upstream.
An analogy can be made using the criminal justice system. The criminal justice system is the ocean continuously fed by the rivers of poverty, inadequate education, trauma, substance abuse disorders (SUD), and untreated mental illness. However, instead of putting more resources into addressing the crippling effects of trauma, SUD, and mental illness, it has become fashionable to blame the criminal justice system as somehow failing society and needing drastic reform.
Pointing to mass incarceration and a disproportionate number of justice-involved minority populations is easy pickings for critics without solutions. After serving as a felony court trial judge for twenty two years, I can speak with certainty that the only way to reduce the obvious and societally shameful issues of mass incarceration and disproportionate minority involvement is to forcefully address the factors driving these individuals into the criminal justice system. The only way to reduce crime is to stop it before it occurs. Simply ignoring it will not make Ohio safer.
We are a prosperous first-world country that is overwhelmingly reactive and violent. We mandate that high school students study trigonometry and sometimes, Shakespeare, but we do not teach these same students basic conflict resolution skills. Violence abounds in cartoons and video games that feed young minds, leading to an early in life mass desensitization.
The vast majority of Ohio's incarcerated inmates are serving time for crimes of violence. According to the Ohio Department of Correction and Rehabilitation’s (ODRC) 2019 Census, less than 11% of those incarcerated were there for 4th and 5th degree felonies, the state’s two lowest felony classifications. Of the 48,639 present in Ohio’s penal institutions in January of 2019, 7,503 were serving life sentences, 14,945 were serving sentences for 1st degree felonies, 11,486 were serving sentences for 2nd degree felonies, and 9,933 were serving sentences for third-degree felonies. A mere 1,841 were serving time for Ohio’s lowest felony classification. The majority of the incarcerated 1841 5th degree felons have histories of violence.
Judges are not locking up jaywalkers, nor are the prisons full of folks merely possessing marijuana. Those incarcerated are there for serious and often violent offenses. Society does not expect the criminal justice system to ignore violent and harmful behavior.
The criminal justice system treats lower level, non-violent crimes most often with probation, applying resources designed to reduce recidivism. On their own initiative, judges have started specialty dockets to serve those with mental illness and those suffering from SUD. Ohio’s specialty dockets are primarily funded by grants from the federal government or by county commissioners. The State of Ohio makes little effort to support Ohio’s successful system of drug and mental health courts. This needs to change.
The recent efforts to pass Issue One and Senate Bill 3 would have further hamstrung the courts’ efforts to treat individuals with mental illness and SUD.
A false narrative exists not only in Ohio but across the nation that the criminal justice system is looking to ruin the lives of drug offenders. Of the sixteen percent of the inmates (7,916) serving time for drug offenses in Ohio, less than half of these individuals (3,005) were there for drug possession offenses. The majority of Ohio’s drug offenders serve time for the crimes of drug trafficking and illegal manufacture of drugs. The majority of those serving time for drug possession are incarcerated for possession of a higher felony level of possession. Ohio law forbids the incarceration of a person convicted of a 5th degree non-violent felony unless that person has a history of conviction for violence or sex offenses. As a result, those behind bars are there because of their violent histories or for possessing a large amount of scheduled drugs.
I started our county’s first felony drug court in 2008 just as the heroin epidemic was beginning to blossom. My drug court mainly treats individuals suffering from Opioid Use Disorder (OUD), a subset of SUD. Yes, we have those whose primary drugs of choice are cocaine, meth, or alcohol, but the vast majority come to court addicted to heroin, fentanyl, or other opioids. OUD is a disease of increasing tolerance.
Drug courts have existed nationally for over thirty years. They have been extensively studied and evaluated. They follow nationally set scientific standards. Virtually every study has concluded that they are a great deal for taxpayers and a lifesaver for participants.
The first time one uses heroin, the experience is euphoric followed by the “nods” where one dozes off. Many times that first use is their last, as the body’s respiratory system shuts down and death follows the overdose. This is more often true when the first time-user unknowingly uses something adulterated with fentanyl or carfentanil, an increasingly common occurrence.
SUD is a chronic disease just like diabetes or hypertension. A chronic disease is one that will result in death if left untreated. Unlike other chronic diseases, those suffering from SUD often need to be coerced to get help. Parents and loved ones continuously struggle to stop the disease process in those suffering from SUD. SUD hijacks one’s executive functioning and makes it difficult for the one with SUD to get help or effective treatment.
Additionally, our nation’s behavioral health systems barely function for those wanting help. Few hospitals offer detox, have addiction psychiatrists on staff treating those with SUD, or offer treatment for those in need. Sadly, the criminal justice system has become the nation’s largest behavioral health care provider. This is not ideal, but until a better system is constructed, it is cruelly irresponsible to tear down or limit one of the few success stories during this nation’s long-running opioid epidemic.
Decriminalizing possession of scheduled drugs, drugs that can kill if abused, is not the answer. Ohio’s voters wisely rejected Issue 1 by nearly a two to one margin. Senate Bill 3 (SB 3) followed as a completely unfunded sequel to the voters' rejection of Issue 1. In its original form, SB 3 would have taken jurisdiction of many felony drug possession cases out of common pleas courts and placed them in municipal courts. The majority of existing drug courts are common pleas courts. Municipal courts often do not have the financial resources to run a specialized docket. SB 3 would have taken Cuyahoga County’s four-lane drug court system and replaced it with an inadequately resourced one-lane highway.
SB 3 also hoped to reclassify lower-level possession of heroin and cocaine from felonies to a newly invented “unclassified” misdemeanor. Calling something that often results in the death of the user does not make it less dangerous. SB 3’s goal was to ignore our way out of our SUD epidemic.
SB 3 or a similar bill will likely reappear again on the legislative docket of the Ohio General Assembly as those calling for reform of the justice system continue to divert attention from the steps we need to take to address rampant SUD, mass incarceration, and disproportionate minority representation in the criminal justice system. Continued debate about whether to call something a felony or a misdemeanor will not save a single life. Conversely, I am sure more will die if we adopt a more casual societal acceptance of SUD. SUD treatment works better when it involves the coercion that only the criminal justice system can provide.
As we now know, the General Assembly listened to Ohio’s judges and rejected SB 3 in favor of House Bill 1 (HB 1). HB 1 widened the ability of low-level offenders to get both treatment and diversion through the Treatment In Lieu of Conviction (ILC) program. ILC has existed for decades in Ohio, but prior to HB 1, a hearing regarding a defendant’s eligibility was not required nor was admission to ILC. Under HB 1 a defendant who alleges that their crime was a result of drug or alcohol usage is entitled to a hearing to determine the veracity of the claim and whether they may be eligible to participate in ILC. ILC allows a defendant an opportunity to get their chronic disease under control and to go forward with a clean record.
Drug court is the most fulfilling part of my work. I love to see the transformation that occurs in those suffering from SUD. Many enter the court system unwilling to address their disease with a history of broken relationships and leave a healthy productive member of society. Many drug court participants are parents. Nothing motivates me more to continue helping people overcome SUD than seeing their social media posts of them spending holidays with their smiling children in the background.
The challenge of mental health, drug courts, and other diversion programs going forward is to expand their availability and the resources that they can provide. These programs work and are a testament to the caring members of the criminal justice system. We know that punishment is not warranted for those with mental illness or SUD but the threat of punishment is a great motivator to get a person started on the road to recovery. Efforts to remove the ability of the criminal justice system to coerce SUD sufferers into treatment will do more harm than good.
Future conversations about criminal justice reform must focus on what is happening in society upstream, before one enters the criminal justice system. Conversations need to be held about how to involve mainstream medicine to take a more active role in addressing behavioral health. The majority of the mentally ill in our society feel handcuffs before they see a psychiatrist. We must introduce and fund conflict resolution classes in our schools. We must provide trauma treatment to those in need. Our mass incarceration problem and the issue of disproportionate minority representation in the criminal justice system will only be “cleaned up” when society makes a decision to address the upstream “pollution” causing them.
Missed Opportunities in Criminal Justice Reform
By Marta A. Mudri, legislative counsel, Ohio Judicial Conference
Two criminal justice reform bills introduced in Ohio’s 133rd General Assembly received an inordinate amount of attention. From its introduction in 2019, HB 1 was described as an alternative to SB 3. The bills were actually nothing alike in approach but were associated with each other because they purported to serve the same population and to solve the same problems: how can people who are suffering from a substance abuse disorder and who would otherwise not have any involvement with the criminal justice system get the treatment they need, avoid criminal consequences as much as possible, and avoid the long-term “collateral” consequences1 of having a criminal record?
In hindsight, it seems obvious that legislators prefer incremental change – they passed HB 1 but not SB 3, which was certainly the more ambitious of the two bills. Regardless of one’s stance on criminal justice reform, there is no other way for a legislator to describe SB 3 than “controversial.” After all, it appeared incredibly similar to a ballot initiative that Ohio citizens voted down nearly 2 to 1 in 2018 and that gave many policymakers pause.
Each bill had its flaws, one perhaps going too far and the other perhaps not far enough.
A flaw that plagued both bills is that they both oversimplified a problem while simultaneously over-complicating (or adding to an already over-complicated) statutes.
The Substance of the Bills:
HB 1 expanded the possibility of the use of a legal mechanism called intervention in lieu of conviction, which is similar to diversion. HB 1 also significantly expanded the ability to seal criminal records. Ohio law provides a definition of who is eligible to seal criminal records based on the number of offenses that person has on record, what charges are eligible to be sealed based on the type of offense, and how long a person must wait before becoming eligible to apply for record-sealing based on the level of the offense. HB 1 will allow more people to be eligible and will allow many of those people to wait a shorter amount of time to apply. HB 1 remained largely unchanged throughout the legislative process and was affixed with four amendments plucked from SB 3 right before the Senate sent HB 1 back to the House for its concurrence.2
SB 3 would have altered drug classifications, from felonies to misdemeanors for most possession and some trafficking offenses, and drug volumes, generally allowing for a larger volume of drugs resulting in a smaller penalty. The bill was quite lengthy and included changes to the record-sealing law and Good Samaritan Law.3 SB 3 was debated vigorously and changed considerably – both in the House and in the Senate. There were at least 20 hearings in total and at least as many amendments. In the end, SB 3 was never brought to the House floor for a vote and it did not pass.
Over-Simplification and Over-Complication:
The most significant flaw of each bill is that the proposed solution to a problem was oversimplified. Just keep people out of prison, right? Both bills lacked a fully-formed and fully-funded mechanism to connect people who need treatment with that treatment. Both bills purported to help people with substance use disorders but each bill was solving the wrong problem: people with substance use disorders need medical help, not a complicated way to entangle and then disentangle themselves from the criminal justice system. Both bills might have reduced prison population – but, without a clear link to treatment, likely would not have changed the lives of any of the people diverted from prison.
It is both ironic and frustrating that an oversimplification of the goal did not make either HB 1 or SB 3 particularly simple or clear. Consider that HB 1 generally made it easier to seal a criminal record – but the process as it existed before HB 1, and unchanged by that bill, is labyrinthine. Under HB 1, if a person’s record consists of only misdemeanors, level 5 felonies, or level 4 felonies, or some combination of those offenses, a person is eligible for sealing regardless of how many offenses a person has on record.4 Except that traffic offenses, including OVIs, are never sealable and render an entire record not eligible for sealing.5 Except that certain violent offenses, but not all violent offenses,6 and certain sex offenses, but not all sex offenses,7 are not eligible for sealing. Except that certain offenses where the victim is younger than 16, but not all offenses where the victim is younger than 16,8 are not eligible for sealing. It is unclear whether a crime of attempt, if the attempted crime would have been a crime that cannot be sealed, is sealable and appellate courts have answered that question two different ways. A person has to wait at least a year after final disposition of a case (as long as we are still talking about misdemeanors, level 5 felonies, and level 4 felonies), but “final disposition of a case” is not defined, so it’s not always clear how soon someone can apply. Conversely, waiting longer and living a crime-free life for decades has no impact on eligibility. Things really start getting confusing when there is a level 3 felony involved. So, while HB 1 was a step in the right direction, it represents a missed opportunity to make a cumbersome process much simpler thus really helping people who seek to get their records sealed.
Or consider that SB 3 would only have added to the intricacy of drug sentencing and that Ohio’s criminal code is already extremely complex. A recent effort to create a uniform sentencing entry – the method by which a judge documents a sentence – resulted in no less than 80 pages describing the various factors considered at sentencing, the various sentences and specifications, the various registries, the various fines and fees, the various colloquies the judge is required to recite to the defendant.9 There is certainly some need for nuance and complexity in the criminal code, but it is worth noting that in 1995, Ohio’s criminal code10 encompassed a single published volume; since that time, it has grown to nine.
The role of the judge has changed considerably in the recent past. Judges have taken up the slack thrown at them; they have diligently developed specialized dockets, and learned about substance abuse disorders, and thrown themselves at the task of helping people who until fairly recently were part of a population that did not inspire widespread sympathy or compassion (something current statutes reflect). However, judges are doing their work within the framework of a criminal code that gets more and more complicated and allows them less and less discretion every year.
It's worth noting, too, that current, reliable, comprehensive data would have been helpful. Committee testimony is, by design, a forum available to anyone with an opinion, but the testimony on SB 3 was particularly rife with anecdotal information. As soon as one party finished testifying that the threat of prison is a much-needed incentive to keep people from violating community control, another party would testify that completing a sentence in prison, where drugs were alleged to be plentiful, is no threat at all. Judges know what they are seeing in their courtrooms but aggregate data would be helpful in solidifying their individual pockets of knowledge into appropriate policy decisions.
1 Additional civil state penalties, mandated by statute, that attach to criminal convictions; these collateral consequences impact employment, housing, gun ownership, etc.
2 The four amendments did the following: (1) named the Ohio Criminal Sentencing Commission as a criminal justice agency authorized to access state databases; (2) expanded, minimally, involuntary civil commitment for people struggling with substance abuse disorder; (3) altered the way judges can use prison time as a sanction for community control violations; and (4) prohibited the use of physical restraints on pregnant and post-partum women in custody, with exceptions. See https://www.legislature.ohio.gov/legislation/legislation-documents?id=GA133-HB-1
3 An effort to encourage overdose victims to get help, Ohio’s Good Samaritan Law allows people who call for medical help for a drug overdose, whether for themselves or someone else, to be immune from prosecution for minor drug possession. (R.C. 2925.11(B)(2)(b)) SB 3 would have expanded the immunity to apply to possession of drug paraphernalia.
4 R.C. 2953.32(A)(1)(a)
5 R.C. 2953.36(A)(2)
6 R.C. 2953.36(A)(3) enumerates violent offenses that cannot be sealed but excludes assault. It also excludes riot, inciting violence, and inducing panic, which are all offenses listed under the definition of “offenses of violence” at R.C. 2901.01(A)(9).
7 R.C. 2953.36(A)(2) enumerates some sex offenses that cannot be sealed and R.C. 2953.36(A)(7) enumerates other sex offenses that cannot be sealed if the victim was younger than 18. Sex offenses not enumerated in these sections can be sealed.
8 Under R.C. 2953.36(A)(6), non-support is excluded from the prohibition of sealing a record of a crime with a victim younger than 16.
9 The document is available on the Ohio Criminal Sentencing Commission’s website at https://www.supremecourt.ohio.gov/Boards/Sentencing/committees/uniformSentEntry/UniformSentencingReport.pdf
10 O.R.C. Chapter 29
by Chief Brandon Standley, Bellefontaine Police Department
Since 2011, Ohio’s public agencies have attempted to find a solution to treating addicts from the scourge of heroin and methamphetamine. From 2011-2018, heroin overdoses consumed our State’s news headlines and impacted local communities in big ways. Entire families were devastated by heroin and its total control of the family unit. Just one addict in a family was a big problem, but it was something entirely different when the entire family was addicted at the same time. Over the course of the last several years, agencies of all sizes and purposes have attempted to walk the delicate walk of enforcing laws while attempting to keep addicts pointed towards treatment. For many addicts, arrest was the only way to get them in front of a judge to attempt to save their lives. Even for just a few days in jail, the addicts would have an opportunity to sober up and consider treatment as a path forward. Unfortunately, many chose to remain a prisoner to the drug and not seek treatment. The controlling impact of heroin had changed them forever.
As legislators attempted to find real answers to the problem of addiction, some felt it was time to make sweeping changes to Ohio’s drug laws and treatment opportunities. Unfortunately, when the time came to move all of this forward, funding was not addressed. Instead, some of the law change proposals included making some F5 and F4 drug possession offenses misdemeanors. This would then allow these drug possession cases to be adjudicated in Municipal Courts primarily. Regardless of what court heard the charges against a person, they were going to be challenged to find a local resource to provide enough treatment. Others found it preposterous to lower the seriousness of possessing heroin, cocaine, or other dangerous drugs because this may be one way to keep better supervision over an addict needing treatment. A portion of this argument is that by convicting an addict of a F4 or F5, they were likely only serving local jail time initially anyway and not going to prison. Some in this argument have offered that Ohio’s prisons are full enough with F4 and F5 offenders, but never clearly identify how many of those prisoners are in there because they opted to accept a plea agreement from a much more serious offense to receive a lessened prison sentence. For example, a defendant that was originally charged with a F2 or F3 offense could have negotiated a plea in which they were accepting a F4 penalty instead to avoid more prison time.
Throughout the heroin epidemic, and especially in the early years of it, many drug traffickers were being sentenced the same as a drug possessor in Common Pleas Courts. Some were slower to recognize that drug traffickers were the business managers, while the consumers that were arrested for possession charges were the customers. Instead of making a clear delineation of the two, the two types of defendants ultimately began receiving very similar sentences in some areas of Ohio. As more and more jurisdictions began learning the differences between addicts and traffickers, the change could not have been clearer in most jurisdictions. The message from judges seemed to change to traffickers. The message was changed to “don’t sell in our community or you will go to prison”. This shift in sentencing saved countless lives. This shift became a large component of how law enforcement could influence the drug culture on the streets that they served. It meant more in some communities to have a street side conversation with a suspected trafficker and attempt to influence them to stop selling by warning them about local judges having more of a zero tolerance for traffickers and having recent adjudicated cases to back that up. It was not always easy for law enforcement to discern traffickers from addicts as the epidemic waned on. Some addicts became traffickers to offset their habits. This made things harder for prosecutors and judges to determine who was truly just a trafficker running the business, and who was an addict selling drugs to afford their habit.
Treatment is an important part of this puzzle. Treatment is often stated publicly as if it is the only piece of the puzzle, and that’s simply not the case in almost all cases. In conjunction with treatment, addicts also need hope, purpose, and goals to seek employment. Ohio made big strides in eliminating the stigma of being found to be an addict. Along the way with education and awareness, more families became more comfortable with talking about addiction. This opened doors for community-wide conversations and forums. Then, through all of that discussion, more became known about varying levels of addiction and how individuals could become reacquainted with “normal” if they were provided treatment, support, and supervision to hold them accountable. As success became measured in very small steps, and a lot of hard work, some addicts proved they could overcome the barriers of their life and become successful. Their fight remains to avoid addiction. Many addicts would say today that if it were not for them being charged with a felony, go in front of a drug treatment court or Common Pleas Court judge to be held accountable, that they may not be alive today to talk about their story. The #1 concern of lessening drug penalties and drug offenses for dangerous drugs is that this change would eliminate, or lessen, the opportunities for addicts to get treatment. Without additional funding attached to law changes, to broaden treatment availability in all communities, any law change would likely cause damage to the progress made.
In a perfect world, funding would not be an issue and addicts, whether charged with a felony or not, would be more likely to achieve success in treatment. Those in the criminal justice system want to not only be able to provide an addict with treatment options, but also to hold them accountable. It doesn’t seem to help the discussion if we’re saying it is okay to possess certain amounts of dangerous drugs (thereby lessening the importance of it on face value), and because it is now a misdemeanor an addict would have more opportunities. Where is the sting of the offense if we lessen the original charge? Drugs that have a long history of killing people should not be disguised in Ohio by creating a debate on how much you have to carry before it becomes more serious. Instead, keep the criminal charges the same and influence positive change by providing the funding streams necessary to provide more treatment options, more medication treatment options, more research, and more supervision of those in treatment programs. Those that are successful can achieve expungement, and complete more diversion programs to avoid local jail time. Learning job skills could be a part of this as well. By making these positive changes to funding purpose behind the addiction issue, the criminal justice system should see a reduction in the number of cases put into over the course of just a few short years without modifying current law. The prison system is important and should also be ready for addicts. That is a necessary function of our society. If a murderer happens to be a drug addict, the prison system must be ready. The web of addiction is not easy to follow, but funding should be our #1 public priority, not the Ohio Revised Code.
Federal Sentencing Reporter: Volume 31, Issue 2
The Federal Sentencing Reporter covered these issues in Volume 31, Issue 2. The issue includes "Learning from Recent State Drug Sentencing Reform Efforts" by Douglas A. Berman and Steven Chanenson, "Criminal Justice and Drug Sentencing Reform in Ohio after Issue 1" by Sara Andrews, and "Issue 1 Died, Ohio’s Criminal Justice Reform Lives" by Daniel J. Dew.
Expert Commentaries on Issue 1
In an effort to enhance understanding and debate over the multiple provisions and potential impacts of the 2018 ballot initiative known as Issue 1, DEPC solicited short commentaries from a wide array of researchers, policymakers, and advocates concerning both the substantive particulars of Issue 1 and the effort to advance criminal justice reform through a ballot initiative. The commentaries were written prior to the 2018 election.
Since the fall of 2018, the Drug Enforcement and Policy Center organized a number of events focused on criminal justice and drug sentencing reform in the state of Ohio. The purpose of these events is to provide a venue for in-depth conversations and to educate the public on the various viewpoints surrounding these efforts.
Where Do We Go From Here?: Criminal Justice Reform in Ohio
The Drug Enforcement and Policy Center hosted a virtual panel discussion on February 24, 2021. Experts discussed recent reform history, what we might expect in the near future, and how research and experience in other states can inform reform efforts in the Buckeye State. A video recording and transcript of the event are available.
Issue 1 One Year Later: The State of Criminal Justice Reform in Ohio and Nationwide
One year after the failure of Ohio’s Issue 1, DEPC collaborated with The Buckeye Institute and the Ohio Criminal Sentencing Commission to host Issue 1 One Year Later. Held in November of 2019 at the Ohio Supreme Court, the half-day event brought together a diverse group of advocates, legislators, judges, and academics. The event was designed to reignite bipartisan work to enact criminal justice reform in Ohio and to assess the resources needed for reform. The event was recorded and is available to watch online.
Ballot Insights: Neighborhood Safety, Drug Treatment and Rehabilitation Amendment Initiative
Our series, Ballot Insights, aimed to provide a venue for informed discussion of the individual policy proposals included in the proposed constitutional amendment know as Issue 1. The series opened with a conversation on the content of the amendment and the use of direct democracy to pursue legal and policy changes. It then continued with three events focused on the sentencing, probation, and funding changes proposed by Issue 1. Finally, the series concluded with a post-election analysis of voting results.
Both opponents and proponents of reform efforts proffer statements about the likely impact of the proposed legislation. Below you will find a brief review of existing research aimed at answering some of the most important questions raised in these debates.
Opponents of SB 3 argued that SB 3 would have stripped judges of the ability to leverage a threat of a felony record to persuade defendants into the successful completion of substance use disorder treatment. Much of the literature on legally mandated treatment is principally interested in whether legal coercion is an effective tool for improving retention rates in treatment programs and reducing recidivism rates. This body of research has produced mixed results, with some finding that legally coercive methods are more effective than voluntary treatment1,2, and others finding no difference.3,4
Central to the argument of opponents of SB 3, however, is that a felony record and the severity of the sentence that can be imposed with a felony conviction would yield better results than the threat of a misdemeanor. While the empirical work on the relationship between punishment severity and treatment outcomes is limited, there are a few notable exceptions. In a 2002 study, Douglas Young found that the threat of severe penalties did not improve retention in treatment5. Individuals in the study completed a short questionnaire reporting how long they perceived their sentence would be should they fail mandated treatment. Those who perceived that they would serve longer sentences (3 years or more) were no more likely to remain in treatment than those who thought they would be sentenced to a shorter sentence. While Young found that the certainty of a punishment improved retention rates, the severity of this punishment did not garner higher retention rates.
Yet, in subsequent work published in the same year, Douglas Young and Steven Belenko found some severity measures did relate to retention outcomes.6 The authors found that those who perceived a more severe sentence for not completing treatment had higher retention rates than those who perceived they would receive a more lenient punishment. Addressing the discrepant findings on the influence of severity of punishment between Young’s two studies, the authors note, “It may be that severity only comes into play in programs that use some minimal coercive structures such as contracts with clients and agreements with treatment programs that enforce regular contact and progress reports to supervision agents” (p. 321). In sum, the limited early work on the influence of severity of punishment produced mixed results that suggest the effect of punishment severity may be conditioned on other specific aspects of the program.
More recent work, however, suggests that the threat of imprisonment, a felony record, and a lengthier sentence are ineffective deterrents for many suffering from Substance Use Disorder (SUD). Eric LaPlant (2021) interviewed 75 Columbus, Ohio residents suffering from SUD identified through drug courts, an inpatient treatment program, and re-entry services organizations.7 LaPlant found that individuals in the throes of addiction were chiefly concerned with avoiding withdrawal symptoms. Thus, they were motivated to avoid incarceration in-so-far as they are motivated to avoid the onset of drug withdrawals. The threat of a lengthy sentence or a felony record was largely inconsequential to their primary motivation -- avoiding agonizing withdrawal symptoms. His findings suggest a felony record or lengthy sentence would not be an effective strategy for rehabilitative individuals suffering from drug addiction. Instead, his findings lend support for a more public health-oriented approach that entails holding addicts through the period of withdrawal symptoms and simultaneously providing voluntary treatment options and support.
LaPlant’s findings dovetail with lessons learned from macro-level drug incarceration and drug use trends. Specifically, Pew Charitable Trust reports that the United States’ reliance on prisons in response to drug addiction has not reduced its prevalence. States’ imprisonment rates for drug offenses are uncorrelated with drug use, drug arrest, or fatal overdoses.8 Moreover, harsh punishment has shown to be an ineffective deterrence strategy that has come at a high cost.9
Taken together, these findings suggest that the threat of a felony record and longer incarceration are not prerequisites for a successful policy and may fall flat. However, future research is needed that pays specific attention to retention in treatment and long-term sobriety before and after an enactment of defelonization reforms.
1 Perron, B. E., & Bright, C. L. (2008). The influence of legal coercion on dropout from substance abuse treatment: Results from a national survey. Drug and alcohol dependence, 92(1-3), 123-131.
2 Young, D. (2002). Impacts of perceived legal pressure on retention in drug treatment. Criminal Justice and Behavior, 29(1), 27-55.
3 Hepburn, J. R., & Harvey, A. N. (2007). The effect of the threat of legal sanction on program retention and completion: Is that why they stay in drug court?. Crime & Delinquency, 53(2), 255-280.
4 Parhar, K. K., Wormith, J. S., Derkzen, D. M., & Beauregard, A. M. (2008). Offender coercion in treatment: A meta-analysis of effectiveness. Criminal Justice and Behavior, 35(9), 1109-1135.
5 Young, D. (2002). Impacts of perceived legal pressure on retention in drug treatment. Criminal Justice and Behavior, 29(1), 27-55.
6 Young, D., & Belenko, S. (2002). Program retention and perceived coercion in three models of mandatory drug treatment. Journal of Drug Issues, 32(1), 297-328.
7 LaPlant, Eric. (2021). Former Opioid Addicts’ Cycle of Addiction: Examining the Role of Criminal Justice Contact, Deterrence, and Cognitive Change. Unpublished manuscript. Doctoral Dissertation, The Ohio State University.
8 Pew Charitable Trust (2018). More imprisonment does not reduce state drug problems.
9 Nagin, D. S. (2013). Deterrence in the twenty-first century. Crime and justice, 42(1), 199-263.
In 2014, California recategorized some drug and property offenses from felonies to misdemeanors via ballot initiative Proposition 47 (Prop 47). In a study of arrest rates, Public Policy Institute of California found overall declines in rearrests and reconvictions after Prop 47.1 Specifically, re-arrest rates were 1.8 percent lower for individuals with Prop 47 offenses after California’s reform relative to comparable individuals sentenced before the reform. However, Prop 47 may have had some negative effect on property crime. Post-Prop 47, property crimes increased by roughly 9 percent relative to other states. The majority of this rise, roughly 75 percent, is attributed to a rise in thefts from motor vehicles.
In a 2020 study, Bird et al. found declines in rearrest and reconvictions amongst those who received drug convictions after Prop 47 relative to persons with similar conviction histories charged prior to Prop 47.2 This decline is mostly driven by declines in rearrest and convictions for drug offenses. While arrests and convictions declined on the whole, there was a small increase in rearrest (2.8%) and reconvictions (1.1%) for violent crimes. Increases in assault and domestic violence account for much of the increase in violent crimes. The authors caution not to overstate the magnitude of this increase.
While California experienced overall drop in crime rates, Utah’s reform has produced more unintended consequences. A performance evaluation of Utah’s Justice Reinvestment Initiative (JRI) found recidivism rates amongst low-level drug offenders rose and the number of chronic drug offenders nearly tripled. The audit found that the initiative fell short on some of its public health and oversight goals.3 Namely, JRI’s goals to strengthen local oversight, increase support for local corrections systems, expand treatment services, and increase resources for probation and parole supervisions had not been met. While JRI achieved its goal of reducing incarceration of non-violent and less serious offenders, Utah provides a cautionary note of the importance of executing this goal in tandem with adequate oversight and provision of treatment services.
In sum, evidence from other states suggests that defelonization does not lead to spikes in crime more broadly. However, reclassification without adequate supervision and treatment services can have unintended consequences.
1 Bird, M., Lofstrom, M., Martin, B., Raphael, S., Nguyen, V., & Goss, J. (2018). The impact of Proposition 47 on crime and recidivism. Public Policy Institute of California.
2 Bird, M., Nguyen, V., & Grattet, R. (2020). Impact of defelonizing drug possession on recidivism. Criminology & Public Policy, 19(2), 591-616.
3 A Performance Audit of the Justice Reinvestment Initiative (Rep.). (2020, October). Retrieved February 2, 2021 from the Utah State Legislature website: https://olag.utah.gov/olag- doc/2020-08_RPT.pdf
Defelonization, as intended, reduces incarceration rates. California’s Prop 47 reduced its state’s jail and prison population by 15,000, saving $350 million dollars for local and state government. Alaska is projected to have reduced its imprisoned population by 13% in 2024 and have reinvested roughly $100 million of the $380 million saved into treatment, reentry, and victim services. Oklahoma, Connecticut, and Utah have similarly experienced declines in their imprisonment rates.1
Utah, however, experienced both a decline in imprisonment rates and an increase in recidivism rates, underscoring the importance of effectively diverting resources to help ensure that declines driven by changes in criminal justice system responses are not countered by increases in crime driven by inadequate access to treatment and services.
1 Elderbroom, B., & Durnan, J. (2019). Reclassified: State-Drug Law Reforms to Reduce Felony Convictions and Increase Second Chances. Federal Sentencing Reporter, 31(3), 195-207.
In sum, the evidence suggests that the threat of a felony record or more serious punishment may not hold the promise that some have hoped. Moreover, states that have defelonized have experienced both drops in incarceration rates and, in the case of California, in crime rates more broadly. Nonetheless, Utah’s rise in recidivism rates and rise in chronic drug offenders is troubling and underscores the importance of defelonization reform coinciding with an expansion of services and resources.
With that said, more research is needed in this area. For example, California’s reform, unlike SB 3, reclassified some property offenses. While California saw an increase in property crimes, would the same be true for reform more akin to SB 3? Studies of crime trends after comparable reform efforts would improve our understanding of the potential impact of an SB 3-esque bill on crime trends in Ohio.
Additionally, our understanding of the relationship between defelonization and treatment outcomes would greatly benefit from research on treatment outcomes of those before and after reclassification reform. Nonetheless, the lack of empirical research supporting the assertion that the threat of a felony record improves treatment outcomes, the lasting downstream consequences of a felony record, and unprecedented Ohio fatal overdose rates suggest that Ohio is long overdue for creative solutions that move beyond our historical reliance on punitive measures to “fix” a public health crisis.