Montgomery County judges make rare proclamations to oppose Issue 1

Ohio judges officially are in non-partisan offices, so it’s rare they speak about election-related topics. Issue 1 is different.

Locally, Montgomery County Common Pleas Court judges report all 11 in their group — regardless of political affiliation — are against it. They said they felt emboldened to speak out due to the lead of Ohio Supreme Court Chief Justice Maureen O’Connor, who adamantly opposes Issue 1.

“I know the Chief Justice has assured us we are allowed to speak on this,” Judge Gregory Singer said. “I assume it’s because it’s a constitutional matter and not a statute that we might be asked to rule as to constitutionality.”

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Collectively, the judges said Issue 1 proponents are well-intentioned, but mistaken about how converting fourth- and fifth-degree drug felony charges to misdemeanors will affect drug-addicted defendants and area municipal courts.

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Statistics provided by the Montgomery County Clerk of Court’s Office show the number of felony cases that included fourth- and fifth-degree drug possession varied from 1,200 in 2013 to a pace for more than 2,100 this year. Those numbers represent from 28 to 39 percent of all county felony cases.

While those cases also may have included other felony charges which would still be prosecuted in common pleas court, Dayton city prosecutor Stephanie Cook said Issue 1’s passage could lead to hundreds more cases for each Dayton Municipal Court Judge.

“That would be a sizeable increase, obviously, for our office to handle, and it would be something new,” said Cook, who opposes Issue 1. “We don’t … deal with those type of drug offenses, so it will be interesting to see how this impacts everybody.”

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Former Ohio Supreme Court Justice William O’Neill has said he supports Issue 1.

“I will not comment on the propriety of a sitting justice actively advocating on an issue that is undoubtedly headed to the Supreme Court,” O’Neill told The (Toledo) Blade. “But it is clear to me that a large group of judges, sheriffs, and prison officials oppose Issue 1. I disagree.”

O’Connor said the Board of Professional Conduct issued an opinion that judges should discuss issues directly related to the justice system.

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“It’s an obligation of the judiciary to step up and step out and discuss issues such as this,” she said. “If not the judges, who?”

Ohio Conference NAACP President Tom Roberts, a former state senator, also supports Issue 1. Speaking recently on WHIO Reports, Roberts said mass incarceration and “cultural criminalization” of incarcerating people for drug possession is wrong.

“If the legislature and others could have gotten it right, it would have been done,” Roberts said. “It hasn’t been done. This is a citizens’ initiative to try to address it.”

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O’Connor said the $136 million in savings promised by Issue 1 proponents is not realistic, and neither is expecting drug addicts to get treatment without force.

“Having consequences, penalties and punishments works to drive people into treatment,” said Judge Mary Wiseman, who echoed O’Connor’s stance that addicted people rarely willingly get the best treatment.

“Often, that epiphany never comes. They’re at such great risk of overdosing that there’s really no time to waste to get them into a treatment program.”

Singer said those who get caught with drugs won’t be put in jail before their possession cases take place in municipal court.

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“So, we have those folks on the street immediately which may not be a bad thing if they’re directed to treatment,” Singer said. “But there’s no mechanism in Issue 1 to ensure that happens.”

Wiseman and Singer said Issue 1’s passage would cripple the drug court docket and programs like MonDay and STOP that serve addicted defendants.

“We have but one tool beyond encouragement in a specialty docket scenario and that is enforcement of treatment,” Singer said. “It was billed as safe neighborhoods. Well, who’s not for safe neighborhoods? But it turns out that because of that detail devil, it’s going to make a strong risk that it will make our neighborhoods unsafe.”

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Also speaking on WHIO Reports, Ohio Student Association Executive Director Prentiss Haney said a person with about 20 grams of fentanyl — whom he called a trafficker and not a user — would be charged with trafficking, not just a misdemeanor for possession.

Not true, according to Montgomery County Common Pleas Court judges, who said additional evidence is needed to indict for trafficking.

“Nineteen (grams) will not get you in” prison, Singer said. “It won’t even get you in jail. … We’re inviting people from Michigan, Kentucky, Indiana, Pennsylvania in — you can have enough fentanyl on you to kill a busload of kids and you can’t go to jail for it.”

Wiseman agreed.

“Fentanyl kills people,” she said. “I have a grudge against fentanyl because people that I like and love have died from it. So I want to make sure that it’s not out on the street, that it’s illegal to possess it.”

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Apart from changing the law on drug possession charges, Issue 1 also would provide up to a 25 percent reduction in sentences for current inmates except in cases of murder, rape or child molestation — which is not defined in Ohio criminal code.

“I don’t buy hook, line and sinker that it’s this or nothing because our legislature doesn’t get it,” Wiseman said. “They have, in fact, enacted some pretty comprehensive and important reforms.

“I would prefer to have people work through the legislative system on reforms than do something that is so detail-oriented with such complicated, unintended consequences and embed that in the Ohio constitution. That’s a bad idea.”


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