Below is our Chief Lobbyist Gary Daniels' proponent testimony on Sub. Senate Bill 3. This was delivered to the House Criminal Justice Committee on November 10, 2020.


To Chairman Lang, Vice Chair Plummer, Ranking Member Leland, and members of the House Criminal Justice Committee, thank you for this opportunity to present proponent testimony on Substitute Senate Bill 3.

SB 3 is a dense but thankfully not complicated bill if we all keep in mind the crux of it is to make long overdue changes to Ohio's drug possession laws and route people to drug treatment instead of prisons.

This is accomplished via SB 3 by changing, with various exceptions, some current felony offenses of Drug Possession to a misdemeanor. Instead of prison, more Ohioans will hopefully get the help they need via a drug court and treatment in their local community.

BACKGROUND

For the committee's benefit, I have included with my testimony a document with various Drug Possession statistics and trends. The takeaways, according to the most recent data, are:

    • In FY 2020, 2,272 people were sent to an Ohio prison for Drug Possession. This represents 3% of all FY 2020 commitments.
    • Drug Possession is the number one reason people are sent to an Ohio prison. That is true not only for 2020 but for the past seven, consecutive
    • As a percentage of people committed to prison, Drug Possession in FY 2020 was the highest it has been (16.3%) in at least the past ten years.
    • Just over half the people sent to prison for Drug Possession are sent for the lowest level (5th degree) felony

Together with Drug Trafficking, these two offenses fuel mass incarceration in Ohio although they are far from the only contributors.

SIGNIFICANT PROVISIONS

Because the following are sometimes overlooked , the committee should be aware of at least these two positive provisions that further strengthen SB 3:

Definition of "technical violations"

In Ohio, approximately 20% of our prison population at any given time consists of people locked up for a "technical violation " i.e. a violation of a supervision condition imposed upon them that is not its own criminal offense. This issue itself is long overdue for meaningful reform. A good first step is establishing a common definition and SB 3 provides one.

Data collection

Adequate data collection and reporting regarding Ohio's criminal justice system has not yet been realized. In recognition of this , SB 3 tasks the Ohio Criminal Sentencing Commission with specifically studying and reporting on the effects of SB 3 after it is enacted.

SUGGESTIONS FOR FURTHER IMPROVEMENT

Suffice to say, the ACLU of Ohio has a host of suggestions to improve SB 3. We also do not wish to delay any further SB 3's passage this session so my goal is not to do so. Still, if SB 3 will be further amended and as others make suggestions and requests, we briefly offer these three:

Retroactivity

So many of your constituents, for so many years, have been impacted by Ohio's drug laws . They also need the relief SB 3 provides and this can be done by making SB 3 retroactive. That is, to apply in such a way that past felony convictions, now covered by SB 3, will not impact their employment, housing, education, and the other effects of being saddled with a felony record.

Expand eligibility

Currently, SB 3 does not apply to those with 2+ offenses in the past 3 years. In other words, it is designed to primarily help those with first offenses. Given the widespread and ongoing drug problems in Ohio, we want SB 3 to provide maximum help to those in need.

Fentanyl-related offenses

In Ohio, we treat any drug, or even non-drug, substance with any amount of fentanyl as all fentanyl. Last session, the General Assembly passed Senate Bill 1. SB 1 dramatically increased fentanyl penalties for even the smallest amounts. SB 3 currently does not apply to those with fentanyl offenses. Because it does not, a large number of people needing assistance will be unnecessarily and automatically disqualified from SB 3's sentencing benefits.

IMPORTANCE OF THIS SESSION

Having worked on this issue for many years inside and outside the Statehouse, I know opportunities in the General Assembly for bills like SB 3 are not common. Because of that, Ohio often remains a lonely island in a sea of bipartisan reform across the country.

The last time the OGA considered a bill with the potential impact of SB 3 was House Bill 86, which took effect all the way back in September 2011. Like SB 3, HB 86 addressed certain categories of Drug Possession convictions with the goal to get people help and keep them out of prison. As you saw from the data I provided about Drug Possession and Ohio prison numbers, much improvement is still needed.

SB 3 represents an immense amount of work for, and advocacy by, members of this body, their staff, numerous stakeholders, and local, state, and national advocates from across the political and ideological spectrum.

But, too many times, bills that do not cross the finish line during lame duck must await reintroduction the following session. However, priorities for busy legislators can and do change. Many other factors can lead to a bill not being reintroduced or it is significantly changed from its previous version.

The ACLU of Ohio's top priority is to provide whatever help and assistance we can to this committee to pass SB 3 this session. Please do not hesitate to contact me directly ( gdaniels@acluohio.org) with any questions, requests, or further discussion.

Likewise, you will soon be hearing from other organizations and people across Ohio, including those who directly benefit from these changes, to encourage your support. The sooner we can all contribute to positive change the sooner people are helped.

The ACLU of Ohio asks for this committee's support in passing Substitute Senate Bill 3.

Addendum (Page 1-3) to Sub. SB 3 Testimony - House Criminal Justice Committee - 11/10/20 from Gary Daniels, Chief Lobbyist, ACLU of Ohio:

DRUG POSSESSION - DRC COMMITMENT DATA

Data available here - https://drc.ohio.gov/reports/commitment

NOTE: Data broken down by felony level exists via DRC website for only CY 2019 & 2018.

DRUG POSSESSION COMMITMENTS - ALL

YEAR
TOTAL
%TOTAL
Fl
F2
F3
F4
FS

CY 2019
2,608
15.47
98
266
661
141
1,442

CY 2018
2,469
14.03
97
245
449
171
1,507

CY 2017
2,738
14.70

CY 2016
2,926
14.71

CY 2015
2,728
13.75

CY 2014
2,426
12.12

CY 2013
2,268
11.05

CY 2012
2,179
10.84

CY 2011
2,213
10.70

CY 2010
2,694
11.62

DRUG POSSESSION COMMITMENTS - MEN

YEAR
TOTAL
Fl
F2
F3
F4
FS

CY 2019
2,037
89
209
545
115
1,079

CY 2018
1,926
91
202
364
140
1,129

CY 2017
2,068

CY 2016
2,238

CY 2015
2.086

CY 2014
1,929

CY 2013
1,778

CY 2012
1,739

CY 2011
1,771

CY 2010
2,147

DRUG POSSESSION COMMITMENTS - WOMEN

VEAR
TOTAL
Fl
F2
F3
F4
FS

CY 2019
571
9
57
116
26
363

CY 2018
543
6
43
85
31
378

CY 2017
670

CY 2016
688

CY 2015
642

CY 2014
497

CY 2013
490

CY 2012
440

CY 2011
442

CY 2010
547

Addendum (Page 2-3} to Sub. SB 3 Testimony- House Criminal Justice Committee - 11/10/20 from Gary Daniels, Chief Lobbyist, ACLU of Ohio

DRUG POSSESSION - DRC COMMITMENT DATA- COMPARING CY YEARS 2019-2010

Data available here - https://drc.ohio.gov/reports/commitment

Calendar Year// Rank re: all commitments / / Total of all / / Percentage of all

YEAR
RANK
TOTAL
% OF ALL

2019
1
2,608
15.47%

2018
1
2,469
14.03%

2017
1
2,738
14.70%

2016
1
2,926
14.71%

2015
1
2,728
13.75%

2014
1
2,426
12.12%

2013
2
2,268
11.05%

2012
2
2,179
10.84%

2011
2
2,213
10.70%

2010
1
2,694
11.62%

Addendum (Page 3-3) to Sub. SB 3 Testimony- House Criminal Justice Committee-11/10/20 from Gary Daniels, Chief Lobbyist, ACLU of Ohio

DRUG POSSESSION - DRC CENSUS DATA

Jan 2011-Jan 2020 Comparison

Data available here - https://drc.ohio.gov/reports/institution-census

NOTE: Over the course of the 10 years analyzed below, there have been 3 different mechanisms/standards for sentencing people for Drug Possession (among other offenses). They are 1) Before SB 2 ("B42"), 2) Under SB 2 ("SB 2"), 3) Under HB 86 ("HB86"). This data is also divided by men/women.

YEAR
TOTAL
% TOTAL
MEN
842M
582M
HB86M
WMN
842W
582W
HB86W

JAN 20
3,005
6.18
2,546
0
119
2,427
459
0
6
453

JAN 19
2,681
5.49
2,246
0
152
2,094
435
0
10
425

JAN 18
2,688
5.43
2,260
0
200
2,060
428
0
20
408

JAN 17
2,858
5.67
2,389
0
281
2,108
468
0
33
435

JAN 16
2,693
5.33
2,238
1
401
1,837
454
0
45
409

JAN 15
2,495
4.94
2,146
1
620
1,526
348
0
72
276

JAN 14
2,435
4.82
2,101
1
1,035
1,066
333
0
130
203

JAN 13
2,429
4.88
2,097
0
1,577
520
332
0
226
106

JAN 12
2,547
5.08
2,223
0
2,223
X
324
0
324
X

JAN 11
2,869
5.65
2,493
1
2,492
X
376
0
376
X

Over the past 5 years, Drug Possession ranks here among offenses for which people are incarcerated in Ohio pr isons:

YEAR
RANK

JAN 2020
#6

JAN 2019
#8

JAN 2018
#8

JAN 2017
#7

JAN 2016
#7