Judges Rocky Coss, left, and David McKenna
Judges Rocky Coss, left, and David McKenna
(Editor’s note: The following article is the first of a three-part series outlining concerns raised by Highland County Common Pleas Court Judge Rocky Coss and Hillsboro Municipal Court Judge David McKenna regarding Issue 1 on the Nov. 6, 2018 ballot. All of the following points, as well as the opinions therein, were presented by Judge Coss and/or Judge McKenna to The Highland County Press. This article focuses on legal implications of the proposed amendment, while other articles will look at the effect on treatment providers as well as addressing the economic impact.)

Highland County Common Pleas Court Judge Rocky Coss and Hillsboro Municipal Court Judge David McKenna spoke with The Highland County Press Wednesday, Oct. 3 to discuss their concerns about Issue 1 on the Nov. 6 ballot, with Coss calling it “the most important criminal justice issue” of his over 40 years as an attorney.

The stated purpose for the amendment, according to the summary of its petition, is “to reduce the number of people in state prison for low-level nonviolent drug possession or drug use offenses or for non-criminal probation violations and by providing sentence credits for participation in rehabilitation programs.”

“Judges are already trying not to send drug abusers to prison,” Coss said. “People are in prison for drug possession because they’ve gone through the system repeatedly, many of them starting in juvenile and then going through misdemeanor courts for years, then coming into felony court.

“If they’re in there because their only offense was a possession charge, then they have really worked the system for years. Or, they’re in there for a possession charge when in reality they’re probably a drug dealer and have committed other offenses, but [there was] a plea agreement.”

Issue 1 has been discussed at length by attorneys and judges statewide, including the Ohio Judicial Conference “taking an active role,” Coss said. Ohio Supreme Court Chief Justice Maureen O’Connor has also released a statement against the issue.

“Judges around the state are extremely concerned, as are law enforcement,” Coss said. “All of those who are involved in this fight are the ones saying ‘no, it’s not a good idea.’

“This is probably the most important criminal justice issue that I’ve seen in my entire career, which is almost 42 and a half years. It’s major. It’s going to have a long-lasting impact if it happens.”

McKenna likened the amendment to “peeling a rotten onion.”

“There’s so many flaws,” McKenna said. “It’s like peeling a rotten onion. Every layer just gets worse, until you get to the core and it is just a mess.”

Coss said the issue has financial backing from Facebook founder Mark Zuckerberg and the Chan Zuckerberg Initiative, as well as Nicholas Pritzker and George Soros. The men have backed similar measures that have passed in California, Oklahoma and Alaska.

A handout from the Ohio Prosecuting Attorneys Association points out that Issue 1 is largely “powered by money from wealthy out-of-state donors,” including the Open Society Policy Center in Washington D.C.; the Open Philanthropy Project Action Fund in San Francisco, Calif.; Chan Zuckerberg Advocacy in Palo Alto, Calif.; Tides Advocacy in San Francisco; and the Center for Community Change Action Fund in Washington, D.C.

The Ohio Organizing Collaborative, which is spearheading the campaign in support of Issue 1, has five national partners, all of which receive funding from George Soros’ Open Society Policy Center. Soros’ center also helped fund the Ohio Justice and Policy Center, which wrote the proposed amendment.

Coss addressed each of the amendment’s proposals to accomplish its stated goal. The judges outlined a number of ways in which the passage of Issue 1 would affect Ohio law and a number of concerns with the possible ramifications for local and state courts if Issue 1 is approved. The following are some of the legal implications of the amendment.

• • •

Current lower-level felonies would become misdemeanors

The amendment would require all offenses involving the possession or use of drugs to be reclassified as misdemeanors, except for large amounts that were first-, second- or third-degree felonies as of Jan. 1, 2018. (Any drug offenses formerly charged as fourth- or fifth-degree felonies will automatically be classified as a misdemeanor.) Any new drugs that may be developed will always be misdemeanors, and this also includes other types of non-addictive drugs, such as date rape drugs, that are also used in criminal acts.

“The worst the state will be able to do is make them misdemeanors and can’t impose a jail sentence for any of these [misdemeanors] unless you commit three [offenses] in a two-year period, no matter how many times they fail to comply with probation and are told to go to treatment,” Coss said.

Because the language of the amendment dates back to Jan. 1, 2018 instead of starting with Jan. 1, 2019, it is too late to enact legislation that would allow the judicial system to change these classifications.

“The dangerous part of this is under the law right now, if you have 20 grams of fentanyl, it’s a fourth- or fifth-degree felony, so 19.99 grams would become a minor misdemeanor. That [amount] could kill 10,000 people,” Coss said. “That’s just fentanyl. Carfentanil’s even more lethal. And there will be new drugs that come up. There is no question about that.

“If people use drugs to commit a crime, for instance to sedate somebody, or a drug administered to someone to commit a sexual assault, whether it’s a date rape drug or something else – that’s not going to get a jail sentence and is only going to be a misdemeanor unless it’s the third one in a two-year period.”

Steroids that lead to the deaths of bodybuilders and other athletes “can’t be a crime, or more than a first-degree misdemeanor,” either, Coss said. Hypothetically, even the “deadliest drug ever invented” would be classified as a misdemeanor under the guidelines of Issue 1.

“Let’s say they come out with a drug that’s 100 times deadlier than fentanyl,” Coss said. “Because possession of that is not a crime, a [third-degree felony] or above, as of January 1, it could be the deadliest drug ever invented by mankind and it will not be able to be more than a misdemeanor.”

Additionally, Issue 1 would “make the reclassification retroactive, meaning that offenders currently serving prison or jail terms can petition the courts to re-sentence them and in many cases release them from custody,” Coss said.

According to Coss, the only way a judge can deny such a request is through an evidentiary hearing that “proves the offender is a risk to the public.” If an evidentiary hearing must be scheduled, that would also mean prosecutors would have to present “testimony from witnesses and possibly experts,” he added.

Coss predicts “an increase in court hearings” that will subsequently lead to “an increase in costs to local taxpayers,” including the appointment of attorneys for indigent offenders. There is the potential for “many petitions for resentencing and/or release being filed in common pleas courts” across the state, he said.

• • •

Probation can’t be revoked ‘no matter how many violations’

Issue 1 “prohibits common pleas courts from revoking probation for all felony offenders and sentencing them to prison unless the violation is a new criminal offense,” Coss said. “This applies no matter how many violations are committed.”

However, according to the language of Issue 1, this affects all fourth- and fifth-degree felony charges, not just ones related to drugs.

“For felonies, I can’t send anybody to prison for a fourth- or fifth-degree possession [charge], and I can’t revoke their probation and send them to prison,” Coss said. “That doesn’t apply simply to drug possession offenses. It applies to all offenses. If we have someone on probation for trafficking, if they’re a burglar, breaking into someone’s property, stealing checks, fraud – no matter what they do, I cannot send them to prison unless they commit a new criminal offense.”

Due to the lack of consequences for offenders who violate their probation orders, Coss predicts that “compliance with probation will decrease.”

“Even if an offender fails to report to probation officers, leaves the state for years, harasses their victims or refuses to comply with other probation conditions, felony offenders cannot be sentenced to prison, and misdemeanor offenders cannot be sentenced to jail so long as they do not have more than two possession offenses within a two-year period,” Coss said.

As an example, Coss said if a domestic violence offender was released on probation but violates a no-contact order and contacts a victim, “I couldn’t send him to prison. He’d have to be convicted of a new criminal offense.”

Once offenders are released, there will also be no way to prevent them from harassing victims or violating no-contact orders unless the offenders are charged with another criminal offense. As an example, Coss said, if for some reason an offender charged with having sex with a minor was released on probation and “walks out and starts having sex with 17-year-olds, we can’t do anything about it” unless the individual is charged with a crime.

Coss explained that “the most severe sanction will be county jail time of up to six months,” and that “once that has been served, there can be no further jail time for future violations.”

“I am allowed to, as a condition of probation, impose up to six months in county jail, total, as a part of a sanction for a felony for someone who doesn’t go to prison,” Coss said. “That’s current law, and as the way I read it, that does not change. So that means that people I would normally be revoking and sending to prison then would go out to the county jail, but only for six months.”

However, taking into account credit for jail time served as well as credit for time in the STAR Community Justice Center, which according to its website (starcjc.com) helps “address the seven key areas (criminogenic needs) that place offenders at risk of recidivating,” Coss may be unable to impose any jail time on offenders.

“What’s the incentive for them to comply once they’ve done their six months?” Coss said. “Many people I put on community control have been in jail for 60 to 90 days anyway before they ever get on community control. If we send them to the STAR program, they get credit for that, so if they do 120 days in STAR and 60 days in the county jail, they’ve used up the 180 [days] – I can’t give them any more.

“I’ll have no way to enforce not just the treatment, but all the other things – contact, getting a GED, getting a job – things we try to do to get people rehabilitated.”

• • •

Jail time limited for misdemeanor drug possession offenses

An individual convicted of a misdemeanor drug possession charge cannot be sentenced to jail “unless the offender commits three or more such offenses within a 24-month period,” Coss said. Any offender with fewer than three offenses in two years also cannot be sent to jail for a probation violation, no matter how many such violations occur.

“What a lot of people are not going to understand is in my court, the vast majority of probation violations are flunking drug screens,” McKenna said. “Quite often, those are accompanied with an admission that ‘yeah, I slipped up.’

“[Failing a drug test] is not a new crime. That’s not a conviction for a new crime.

“The whole purpose of drug treatment programs through the court is based on keeping people clean. The best tool that we have and the tool that the rehabs have that we use is random drug screening. If there’s no consequences to flunking a drug screen, then it just nullifies so much of what we’ve worked for. Anybody who thinks ‘well, if they flunked a drug screen, they can go to jail’ – it’s not a new crime.”

“If they know they can’t be forced to go to treatment, it’s going to discourage them from admitting anything,” Coss said. “In actuality, I think this could even end up encouraging people to be less open about their addiction and willing to admit things.”

• • •

Offenders convicted of serious crimes eligible for reduced sentences

Under the proposed amendment, “persons serving prison sentences will be eligible to receive a reduction of 25 percent of the sentence imposed by the court,” Coss said. The only exceptions are for those who have received a death or life-without-parole sentence or those who have been sentenced for “murder, rape or child molestation.”

“I can tell you from experience, being the old-timer that I am, that the prison will give everybody the 25 percent,” Coss said. “In fact, what will happen is when they walk in the door, that will already be calculated. They’re going to get it.”

Coss pointed out a number of problems with the language of the amendment. The term “murder” is vague and doesn’t encompass sometimes even more serious related charges, including aggravated murder, attempted murder, felonious assault, involuntary manslaughter, voluntary manslaughter, aggravated vehicular homicide, aggravated robbery, aggravated burglary, burglary and domestic violence.

“The sentence for murder in Ohio is 15 years to life,” Coss said. “[The amendment] doesn’t say ‘aggravated murder.’ If you are convicted of aggravated murder but not serving a life without parole sentence – you’re serving 20 to life, 25 to life, 30 to life – you get the 25 percent. So actually, someone serving a more serious crime can get the credit than a person serving a murder [charge].

“That’s an example of how poorly written this thing is because people didn’t do their research.”

Similarly, “rape” does not include other sex offenses, including sexual battery, gross sexual imposition and unlawful sexual conduct with a minor, as well as those who pander, produce or view child pornography. Anyone sentenced on any of these violent or sexual charges – among many others – would be eligible for a reduced sentence under the language of Issue 1.

Coss also noted that “child molestation” is not a term recognized by Ohio law.

“There’s no offense of ‘child molestation' in Ohio,” Coss said. “Basically, then, I think the judges will have to construe it as written. It says ‘child molestation,’ but that doesn’t mean any other offenses.”

Coss said that drug traffickers convicted in Highland County of engaging a pattern of corrupt activity will be eligible for early release as well. In California, there was “an increase in violent crime of four-percent from 2015 to 2016 after its voters adopted three ballot initiatives containing many of the same provisions in Issue 1,” he said.

Check back to highlandcountypress.com for more on the judges’ opinions on Issue 1.