Delaware County Common Pleas Court judges Everett H. Krueger and David M. Gormley recently announced they will be voting “no” on state Issue 1 in the upcoming November election.
The proposed Ohio constitutional amendment would reduce fourth- and fifth-degree drug possession charges to misdemeanors, and it would not allow judges to sentence subjects in those cases to jail time. Instead, it would require that they be placed on probation in drug treatment programs.
The goal of the amendment is to send less people to prison, but Krueger and Gormley said that locally, the amendment would “undercut a very effective program.”
Gormley and Krueger said that currently they always prefer intervention or probation instead of prison in drug possession cases, and while defendants are on probation, they must stay clean and take part in substance treatment programs. Krueger said that the looming threat of prison is an effective motivator in these cases, and Issue 1 would remove incarceration of any kind as an option for judges until the person committed three drug offenses in a 24-month period. Even then, he added, the amendment would only allow judges to send someone to jail for 180 days.
“(Judges) would want to put them on supervision, but they’d have no leverage as far as what they can do to encourage them into treatment,” Krueger said. “… It’s going to encourage more drug use in our state.”
Gormley added that prison sentences for the charges in question are uncommon in Delaware.
“I think it’s important to know that we don’t send that many people to prison now for these relatively low-level possession offenses,” Gormley said. “But why prison is important is it provides an incentive to people to comply with court orders. Having them know that if they don’t comply with orders that eventually we may well impose a prison term. We aren’t trying to do that. It is by no means the first option that we employee, it’s almost always the last option, in fact. We try other incentives and sanctions locally to prod people into pursuing treatment. But looming over all of those other sanctions, we feel it’s important for them to know they could be sent to prison. The vast majority of people we do send to prison for drug-related offenses they aren’t going there after their first hearing … instead, those few we do send are going after they’ve violated probation two, three or four times.”
Gormley said not being able to send individuals to the county jail takes away a critical tool for the justice system, because it means that instead of a night or weekend in jail for a violation, individuals can immediately return to using when they leave the courtroom.
“That’s concerning to us, and we feel it undermines the effectiveness of the justice system,” Gormley said. “It makes a mockery of what we are trying to do with the meaning of a court order. We’re not looking to lock a bunch of people up and that isn’t happening now, but the realities of working with people who are in the throes of an addiction is they don’t do many things voluntarily, and so you have to push and prod them, repeatedly often times, to get them to live in the community without using drugs.”
Gormley said that many times relapses are part of the recovery process, and what’s important in those circumstances is having the ability to intervene and take action by imposing a day or two in jail to keep them from using until they can come up with the right next step.
“No judge now is saying ‘you used heroin one more time after I sentenced you, off to prison for 20 years.’ That’s just not happening,” Gormley said. “It’s also a myth that judges are locking people up for an extended period of time for marijuana…. We’re not sending people to prison for small amounts of marijuana.”
Issue 1 would also allow individuals that were previously convicted of fourth- and fifth-degree drug charges to petition the court to have their charges turned into misdemeanors, which would reduce their sentences and take felonies off their records. Issue 1 would also allow for incarcerated individuals, except individuals incarcerated for murder, rape or child molestation, to earn up to a 25 percent reduction in their sentence by participating in rehabilitative, work or educational programming.
Krueger and Gormley said there are already mechanisms in place that allow incarcerated individuals to ask to be let out of prison early via judicial release, and they can ask to have their records sealed or expunged. They added that inmates can currently reduce their sentences by participating in educational or vocational programs. According to the Ohio Revised Code, the current sentence reduction is capped at 8 percent.
Krueger said he enjoys sealing the records for individuals who have completed treatment and have turned away from a criminal lifestyle.
“I like to have these hearings, because I like to have good news,” Krueger said. “Often, all we get is the bad news.”
Gormley said that in Delaware County, there is positive partnership between law enforcement, prosecutors, judges and treatment providers, and they are all working toward helping individuals who are addicted.
“In our county at least, everybody involved in the criminal justice process seems to be on the same page in terms of the importance of treatment and the reality that just locking people up who are addicted to drugs is not going to solve that problem,” Gormley said. “We are all working in a unified direction to try and help these folks, but we are all concerned that important tools are being taken away.”
Gormley said that last year, the state began investing $1 billion to battle drug abuse and addiction.
“The notion that nothing is being done is not born out by where the dollars are flowing,” Gormley said.
Issue 1 would require the state to spend savings due to a reduction of inmates, resulting from Issue 1, on drug treatment, crime victim and rehabilitation programs.
Gormley said that Issue 1 also focuses on having less people in prison, but he argued that four prisons have closed in the state of Ohio since 2011, and only 6.75 percent and 4.59 percent of Ohio’s prison population are incarcerated for fourth and fifth-degree felonies, respectively, of any kind, not just drug charges.
“We’re not locking up a bunch of people for low-level felonies of any type,” Gormley said. “Most of the people in prison for low-level felonies is because we tried, and tried, and tried to coax them to follow court orders on probation and finally had to (sentence them to prison). In my view, if you threaten continuously and it’s always an empty threat, word gets around. In appropriate cases, you have to follow through.”
Gormley reported that in 2017, he and Krueger sent 93 people to prison for all kinds of offenses including murders, robberies and rapes.
“When you consider that we are a county of 200,000 people and 93 of us went to prison in one year, the notion we are sending a bunch of people to prison and that there’s going to be a magical big pot of money coming our way if we don’t send those people to prison, I don’t understand it,” Gormley said.
Glenn Battishill can be reached at 740-413-0903 or on Twitter @BattishillDG