Highland County Common Pleas Court Judge Rocky Coss, left, and Hillsboro Municipal Court Judge David McKenna.
Highland County Common Pleas Court Judge Rocky Coss, left, and Hillsboro Municipal Court Judge David McKenna.
(Editor’s note: The following article is the third 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 the financial and economic implications of Issue 1. For the first article on legal implications of the proposed amendment, click here. To read the second article about the effect on treatment and rehabilitation of drug offenders, click here.)

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.”

Proponents of Issue 1 claim that due to the reduced prison sentences implemented by the proposed amendment, it will save taxpayers money. However, local judges say that has not been the case in other states, nor do they think it will be sustainable in Ohio.

The judges also said that the amendment will hurt local treatment providers, courts and law enforcement financially.

Coss said he is also concerned that if Issue 1 is approved, it will be “very expensive,” time-consuming and difficult to repeal or amend because it would change the Ohio Constitution instead of amending current, or enacting new, legislation.

The following is a more detailed look at some of the judges’ concerns on financial matters involving Issue 1. (More background information on Issue 1 is available in the first article of this series.)

• • •

Predicted ‘savings’ to state unlikely

Issue 1 speaks of a “projected savings in state costs that will result from” reduced prison sentences. However, Coss said this has not been the case in other states, nor does he think it will work in Ohio.

“It’s not based on any analytical study of the data in Ohio, or the people who are in Ohio prisons, or the Ohio budget,” Coss said. “It’s very vague and it’s just not really based on any proven methodology.

“The other thing is that the way the money is allocated is so vague.”

To calculate the savings to the state, the language of the proposed amendment says “The State shall project the fewer number of days of incarceration that will be served in state prisons during the biennium as a result of [sentence credits for rehabilitation; reclassification of certain non-serious, nonviolent drug offenses; and retroactive application of the amendment] … and multiply the number by a per-diem amount of $40.” This is to be added by the state’s projection of “the fewer number of days of incarceration that will be served in state prisons during the biennium as a result of” graduated responses for noncriminal violations of probation, which is to be multiplied by a per-diem amount of $30.

“The ‘savings’ that is presumed to occur because of the reduction in the prison population is not supported by an analysis of data regarding the current prison population,” Coss said. “The proposal does not consider the cost that the prison system will incur to develop the programs required in the prisons to allow felony offenders to earn their 25-percent credit.”

The amendment claims that there will be a savings to county jails. However, Coss said that he would predict “bigger caseloads, and we’ll have to have more probation officers. There’s no money guaranteed for that.”

In Oklahoma, Coss said that a predicted “$63 million savings in its prison budget” did not come to fruition.

“That did not occur because of the lack of any real analysis by the proponents,” Coss said. “In the spring of 2018, Oklahoma prison officials actually requested $1 billion to help to build two new prisons.”

Coss said that as written, “there’s no guarantee than any county or city or municipality will get any of this money” supposedly allocated within the proposed amendment.

“It’s just totally without any kind of guidelines,” Coss said. “It just says ‘in general.’”

• • •

Decreased numbers in treatment will impact funding for providers

Coss said that he also fears that the amendment’s proponents have not considered the negative effects on funding to treatment providers at the local level, both through grants and through insurance pay. The judge said that it is “a virtual certainty that the number of offenders in treatment will decrease significantly if there are no consequences for refusing to participate in programs.”

“All of the residential treatments not only in this county but everywhere else that we use – when you have someone go to treatment, [the providers] get reimbursed for the services rendered,” Coss said. “If, as I believe, the number of people going to treatment will drop significantly, that will also result in a significant decrease in funding from those sources, whether it may be Medicaid, insurance or grants.”

Coss said the legislation also fails to “take into account there are several programs that have been adopted by the state that are in effect to reduce the commitment of these people to prison,” such as the Targeted Community Alternatives to Prison (T-CAP) program, which is used in eight Ohio counties.

In Highland County, various grants are in place in county court, common pleas court and municipal court “based on the reduction of people in prison or jail,” Coss said. If the amendment passes, Coss said, “I think the courts will probably lose the grants.”

“These are just idealistic goals without any thought as to whether they can be achieved,” Coss said.

Coss added that “if there is a decrease in client participation, the payments will decrease and could result in a decrease in the scope of services to offenders.” Finally, the financial burden will be shifted back to the local level again.

“Local governments will again be saddled with the financial burden of dealing with felony offenders on probation that cannot be sent to prison unless they commit a new offense,” Coss said.

• • •

Issue 1 will be difficult, expensive to amend

If approved, Issue 1 will change the language of the Ohio Constitution, meaning the only way it can be changed is “by a future constitutional amendment, which is very expensive and requires another statewide vote,” Coss said. If the judiciary or law enforcement encounter problems with the legislation, it could be years before the language can be amended, if at all.

Coss said that in other states where this system has been adopted, it’s been a “trial and error” process because it was legislation that could be amended. That will be impossible in Ohio without another issue being placed on the ballot because Issue 1 would amend the state’s constitution.

“In other states, they didn’t amend their constitutions,” Coss said. “They passed initiatives that created new or amended existing statutes. If this is enshrined in the Ohio constitution, it’s there unless and until there’s another vote of the people to amend it. Even if this were supported by some scientific analysis and some good analysis of data, it may not work. I don’t think it’s going to work at all. But even if it were a sound proposal, it’s not something you want to put in the constitution that requires a statewide vote.

“If it turns out to be a bad idea, our legislature can’t change it. Only the voters can, and that requires a large expense to draft it, to get the signatures, then you have promote it and spend money on a campaign to get it promoted. It’s a time-consuming thing. Legislation, if it’s an emergency, can sometimes be changed fairly quickly.”

• • •

Both judges encouraged citizens to educate themselves on this amendment, which they said is especially complicated. McKenna said that he and Coss “have discussed this problem for months.”

“This amendment – and it’s a very long amendment – is difficult for even trained attorneys and judges who’ve been working in this field for years and decades, as Judge Coss and I had, to even begin to understand it,” McKenna said. “There’s so many flaws. If it’s passed, it’s going to paint the judges and the entire treatment system into a corner.”

McKenna said that Issue 1 is “a prison reform package disguised as rehabilitation.”

“This is not the solution,” McKenna said. “There’s no question the problem exists. It’s a problem that no one has come up with the perfect solution. But this amendment is so far from being a good solution that it is going to cause so much more damage than we can anticipate. The treatment programs that are in effect right now are going to be gutted.”

Coss said that the people who have backed Issue 1 “have this attitude or opinion and want to see their opinions become law,” which will ultimately lead to more harm than good.

“It’s not based on any good science or any good analytics,” Coss said. “If they want to do something about the problem, I’d rather see them take all this money they’re giving to putting these things on the ballot and give it to people doing the work in treatment programs and rehabilitation programs.”

Coss also emphasized the importance of citizens turning out to vote and to ensure that they vote on the issues at the end of the ballot.

“It’s important that people vote,” Coss said. “Issues are at the end of the ballot, and there’s always a big fallout on those. It’s very important to vote.”

As Coss and McKenna concur that they are “vehemently opposed” to Issue 1, Coss said that if the voters approve the measure, law enforcement, prosecutors and judges will be forced to find “ways to get around it” to ensure drug offenders end up getting treatment they need, as well as working to protect society.

“If this law goes into effect, I guarantee you prosecutors, police and judges will look at ways to get around it to do justice, in accordance with the law,” Coss said.