The Toledo Blade on SB 3
Chief Justice O'Connor says Senate drug sentencing bill is lacking
Jun 17, 2019
COLUMBUS — Ohio Supreme Court Chief Justice Maureen O’Connor was among the fiercest critics of last year’s failed ballot issue that would have overhauled sentencing for low-level, nonviolent drug offenders.
Now she finds some of the same problems in a potential legislative fix, arguing that Senate Bill 3 removes too many of the sticks that judges use to drive addicts into treatment.
She prefers a measure pending in the House that would expand access to intervention in lieu of conviction and broader use of sealing records of past felony and misdemeanor convictions to help offenders rebuild their lives after they emerge on the other side of the judicial system.
“I don’t think that there’s any disagreement between the proponents for Issue 1 and me as an opponent or any judicial officer who spoke with me, the treatment community, and the legislature now,” Chief Justice O’Connor said. “ ... We are on common ground when it comes to treatment instead of incarceration.”
“The question is how you affect that treatment successfully,” she said. “There was no incentive in Issue 1, no mechanism to make people go to treatment and stay in treatment.”
Voters soundly defeated Issue 1 on the November ballot. The proposed constitutional amendment would have reclassified fourth- and fifth-degree felony drug and paraphernalia possession charges as misdemeanors, all but taking prison time off the table.
The measure would have put financial savings from incarcerating fewer people into treatment instead.
One legislative response to that has been Senate Bill 3, sponsored by Sens. John Eklund (R., Chardon) and Sean O’Brien (D., Bazetta), that is pending in a Senate committee. It would convert what are currently low-level felonies for drug possession into “unclassified” misdemeanors.
That could mean the difference between up to 18 months or a year in state prison for fourth- and fifth-degree felonies, respectively, and less than a year in a local jail for a misdemeanor.
“In our culture a misdemeanor is dismissed as being a lesser offense,” the chief justice said. “It’s not even in most people’s minds a crime. ... Why minimize the serious, critical issue that we are facing and label it a misdemeanor?”
Across the Statehouse rotunda, House Bill 1, sponsored by Reps. Phil Plummer (R., Dayton) and Paula Hicks-Hudson (D., Toledo), would require a judge to hold a hearing into each request for intervention in lieu of conviction from a criminal defendant who argues that drug or alcohol use was a factor leading to the crime.
Someone accused of a sex offense would not be eligible.
The bill also expands the scope of sealing records of past criminal convictions by eliminating the current cap on the number of fourth- and fifth-degree felonies or misdemeanors that can be sealed, regardless of whether they were drug crimes.
Currently, offenders with more than five felonies of any degree cannot have their records sealed.
“It’s not the type of crime that should follow you for the rest of your life if you’ve gotten yourself into rehab and turned your life around,” Chief Justice O’Connor said. “It’s punitive to do otherwise, I believe, and unnecessarily punitive.”
House Bill 1 could reach a full chamber vote as early as this week, while Senate Bill 3 remains in committee. Neither is likely to reach Gov. Mike DeWine’s desk before the General Assembly recesses for the summer by June 30.
Senate Bill 3 has its supporters. Blaise Katter, public policy chairman of the Ohio Association of Criminal Defense Lawyers Proponent Testimony, disagreed that the bill lacks teeth to drive an offender into treatment.
“To put it bluntly ... this bill provides for up to a year incarceration for these newly classified offenses,” she told the Senate Judiciary Committee. “That is a significant penalty for the mere use of an illegal substance, without any other aggravating factors.
“ ... This bill literally authorizes locking up a person in a cage for up to a year simply because of their use of a substance,” Mr. Katter said. “That is more than enough ‘stick’ to incentivize compliance and an appropriate potential sentence.”
Chief Justice O’Connor noted that the two-year budget on the lawmakers’ desks now would expand the number of specialty drug courts in the state by 30, bringing the total to more than 200 the number of courts statewide with drug intervention as at least part of their mission.
But she would also like to see greater state investment in residential treatment programs.
“S.B. 3 nibbles around the edges,” she said. “H.B. 1 doesn’t address it. It’s the funding that is really crucial here to expand our treatment communities. It’s not something that would have to go on forever.”