Judge Scott Barrett
Judge Scott Barrett

HARDIN COUNTY — In late August, Ohio Supreme Court Chief Justice Maureen O’Connor announced her strident opposition to Issue One on the Nov. 6 ballot. She not only wrote that it would have, “…catastrophic consequences for our state,” but also called upon other Ohio Judges to actively oppose its passage as well.

This past Monday, Oct. 1, Hardin County Common Pleas Judge Scott N. Barrett took up this call, holding a meeting that included Juvenile Court Judge Steve Christopher, Municipal Court Judge Greg Grimslid, Prosecutor Brad Bailey, Sheriff Keith Everhart, and Kenton Chief of Police Dennis Musser. Together, they argued forcefully that passage of Issue One would represent a giant step backwards in the fight against opioids and other illicit drugs.

“Issue One is a proposed amendment to the Ohio constitution that would completely change the way criminal issues are done concerning drug offenses,” began Barrett. “It would constitutionally make all current laws having to do with possession, use, or purchasing of drugs, no matter what quantity, would make all those misdemeanors as though they were even minor misdemeanors.”

“Constitutionally, you could not even put somebody in jail for one day until they’ve had three offenses within a year. That’s the huge thing…The penalty for reckless operation would be greater than the penalty for use, possession, or purchasing of drugs.”

“To put that into perspective,” added Everhart, “You have these recovery courts, and you have these people who are mandated to get treatment. If they don’t do it, the judge [would] have no recourse in that, none. So, what’s the incentive to do what the court instructs you to do? What’s the incentive to get treatment?”

The proposed amendment would also apply equally to all illicit drugs, including fentanyl, as Barrett points out, “Under the new [amendment], anything less than 20 grams of fentanyl would be a minor misdemeanor. The U.S. Drug Enforcement Administration says two milligrams of fentanyl is the lethal dose. 19 grams of fentanyl is enough to kill approximately 10,000 people. Your next door neighbor could have 19 grams of fentanyl in his or her possession and get nothing, and they could do that three times in a year.”

“Speeding in a school zone,” adds Christopher, “36 miles per hour in a 20 mile per hour zone is jailable.” His point being that the penalty for speeding is potentially greater than carrying less than 20 grams of fentanyl should the amendment pass.

“The one thing that I’ve found interesting is the treatment providers,” says Everhart, “who are generally much more liberal thinking than cops. The treatment providers are coming out against this, saying this is not the way to do it. I find that very interesting, very telling.”

The reason this is the case, according to those present, is that without the threat of jail, most offenders sentenced to community control through a recovery court will not follow through on their court mandated treatment. “The model of all treatment courts…the core component from the person’s point of view is the power of contempt and the power of jail,” says Bailey, “Then if any of the people appear in court, they’ll just sit there and say, ‘You can’t do anything to me.’ And that’s what’s being stripped by this amending of the constitution. The legislature can’t even override it.”

“No one in this room is against treatment,” says Everhart, “No one in this room believes treatment shouldn’t be on the table. Treatment is a necessity. But, you have to have something. You have to have that stick at the end to say, ‘Alright, if you’re not going to do it, this is what’s going to happen.’ ”

“Evidence and experience shows us that people struggling from drug addiction rarely want to go voluntarily into serious drug treatment to recover,” adds Barrett.

But, what if there was evidence and experience showing that Issue One might work? This question was posed to those present along with the following background information.

According to the CIA’s Factbook, the country of Portugal has a population of just under 11 million people. In 2016, its GDP was $204.6 billion. It is 81 percent Roman Catholic.

Ohio has a population of just over 11 million people according to the U.S. Census Bureau. In 2016, the state’s GDP was $552.46 billion, more than double that of Portugal’s. According to Pew Research, 73 percent of Ohioans identify as Christian.

In 2001, in response to a heroin epidemic that had raged throughout the 1990s, Portugal decriminalized all drugs, including extremely dangerous ones like fentanyl. While trafficking and dealing drugs remains illegal and punishable under their laws, using those drugs carries no penalty. The courts in that country cannot force users into treatment, though social workers can recommend it and provide information on how to seek it. Should the user refuse, nothing happens to them. They are released back into the community, which is a bit of a misnomer, as they never would be arrested in the first place.

According to a Time magazine article published in August of this year, the number of people receiving treatment in the country between 1998 and 2011 increased by 60 percent, with nearly three quarters receiving opioid substitution therapy. Indicating that many people do indeed seek treatment without the threat of jail. Additionally, that same article states that drug use has declined in 15-24 year olds, the age-group most likely to experiment with drugs.

This is not to say that Portugal’s approach is not without its critics and ongoing issues. But, 17 years later, there is no indication that the country intends to change course and rejoin the war. They clearly feel they’ve found a better way. One with the additional benefit of being more affordable than locking up a significant portion of its population.

So, why not try this approach in Ohio?

“First and foremost, it has to be done legislatively, not as a Constitutional amendment,” responds Christopher. “Because then it can’t be changed if it fails. If it’s done legislatively, you can tweak it. You can change it to fit circumstances as times change. We did prohibition with alcohol, not quite a hundred years ago. That was the problem then, this is the problem now. Things change. The drug changes. Where it’s coming from changes. So, first and foremost, it has to be legislative so it can be changed.”