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Ohio State Ballot Issue 1: The Ohio Drug Treatment Initiative
A Critical Analysis

A research and analysis project conducted by
Dwaine Hemphill, Magistrate
Stark County Court of Common Pleas, General Division
Canton, Ohio

Preface

The Ohio Campaign for New Drug Policies has submitted over 700,000 petition signatures to qualify their "drug treatment initiative" for the November general election. The issue will amend the Ohio Constitution by adding Section 24 to Article IV of the Constitution. In their summary, the Campaign for New Drug Policies claim the initiative will "provide for treatment in lieu of incarceration for persons charged with or convicted of illegal possession or use of a controlled substance in certain limited circumstances."

In reality, the initiative will emasculate Ohio's carefully crafted felony drug sentencing statutes. The initiative is a thinly veiled effort to decriminalize felony drug possession and use in Ohio. This analysis provides a starting point to assist in educating the public about the serious issues involved in the debate on State Issue 1.

The materials forming the basis for this analysis come from a variety of sources. First and foremost, much of the information comes from initiative proponents. A national network of interrelated organizations has coordinated efforts to pass similar initiatives across the nation. The central coordinating agency is the Drug Policy Alliance (Drug Policy Alliance), formerly known as the Lindesmith Center. Information was drawn from Campaign for New Drug Policies and Drug Policy Alliance email newsletters and campaign updates, press releases, organization websites, and their Internet links to the network of legalization advocates.

Additional sources of information include the Ohio Judicial Conference, the Ohio Association of Drug Court Professionals, and the Ohioans Against Unsafe Drug Laws campaign organization. Newspapers were searched for related articles in Ohio, California, Florida, and Arizona.

Table of Contents

Misrepresentation #1: "Radical Change is Necessary."
1. Senate Bill 2
2. Intervention in Lieu of Conviction
3. Community Based Correctional Facilities
4. Drug Courts
Misleading Campaign for New Drug Policies Data on Prison Populations Misleading Campaign for New Drug Policies Data on California

Misrepresentation #2: "The Initiative Will Save Taxpayer Money"
Lack of Data to Support Claims
1. Underestimated Drug Treatment Costs
2. Undisclosed "Rehabilitation Services" Costs
3. Hidden Administrative & Supervision Costs
4. Supervision Costs & "No Show" Offenders
5. Hidden Costs of Local Jail Incarceration

Misrepresentation #3: "The Initiative is About Drug Treatment"
1. Eligibility Criteria Prove Treatment is Not the Goal
- "The Novice User "
- "The No Show Offender "
- "The Sham Applicant"
2. Dismissal Protocol Proves Treatment is Not the Goal
3. Failure to Demand Accountability Proves Treatment is Not the Goal

Fact 1: The Amendment Will Destroy Drug Treatment in Ohio
1. The Amendment Fragments the Treatment Community
2. Integrity & Quality of the Treatment System Will Be Compromised
3. Restricted Court Discretion Will Undermine Treatment
4. Secrecy Will Undermine Treatment
5. The Lack of Drug Testing Will Undermine Treatment
6. Eliminating Prison As An Option Undermines Treatment
7. Eliminating "Flash Incarceration" Undermines Treatment
8. The Amendment Will Destroy Drug Courts
9. The Amendment Ignores & Crowds Out Others Needing Treatment
10. The Treatment Community Opposes State Issue 1

Fact 2: Decriminalization & Legalization are the Real Agenda
1. State Issue 1 Decriminalizes Felony Drug Offenses
2. The Campaign for New Drug Policies History Confirms a Legalization Agenda
3. The Network Connections Prove the Legalization Agenda
4. The Drug Policy Alliance eNewsletters Prove the Legalization Agenda

Fact 3: The Campaign for New Drug Policies Distorts Data & Engages in Deceptive Campaigning
1. Treatment Advocacy is Deceptive.
2. The Campaign for New Drug Policies Distorts the Role of State Actors in Drafting the Initiative
3. The Campaign Distorts California Data
4. The Campaign Distorts Arizona Data
5. The Campaign for New Drug Policies is Engaging in a Negative "Attack" Campaign

Fact 4: State Issue 1 Threatens Public Health and Safety
1. Violent Offenders Will Qualify
2. Repeat Felony Offenders Will Qualify
3. The "Date Rape" Offender Walks Away
4. Decriminalization Increases Crime
5. Numerous Provisions Threaten Public Health and Safety

Fact 5: Amending the Constitution Makes a Bad Idea Worse
1. Degrades the Integrity of the Constitution
2. Inferior Policy-Making Process
3. Constitutionalizing the Policy Prevents Corrections

Appendix
The text of the Constitutional Amendment on State Ballot Issue

Misrepresentation #1: "Radical Change is Necessary."
Campaign for New Drug Policies arguments assume Ohio laws and a system that ignores treatment and unnecessarily locks up thousands of nonviolent drug offenders. This is incorrect. Ohio does not have a "three-strikes" law or mandatory sentencing for low-level addicts charged with possession or use. In fact, the opposite is true. Everyone in the criminal justice system, from police officers to judges to elected state officials, recognizes that treatment of addiction is an essential part of the criminal justice system.

The emphasis in current policies and procedures on treatment is reflected in the following ways:

1. Senate Bill 2:
There was a massive revision of felony drug classification and sentencing laws that went into effect January 1996, commonly referred to by attorneys and judges as "Senate Bill 2." The revised law established a clear preference for community treatment of low-level, nonviolent drug offenders. ¹ In order to send such an offender to prison, a judge has to make specific findings based on reliable facts that the offender represents a danger to the community and is not amenable to treatment.

2. Intervention in Lieu of Conviction:
Current law allows for virtually the same diversion process and outcome as detailed in State Issue I, but it does so while retaining the traditional tools of the criminal justice system and without sacrificing court control over the offender. ² Upon a plea of guilty, low-level and nonviolent drug offenders are diverted out of the traditional criminal justice system into a structured and supervised course of treatment. If the offender successfully completes the treatment, the felony charge is dismissed, and the offender is eligible to apply for a sealing of the record of his or her arrest.

Unlike State Issue I, if the offender fails treatment they are returned to the system for sentencing in accordance with state felony sentencing statutes. The potential for incarceration is retained as an effective incentive for treatment compliance. This diversion alternative exists separate and apart from the developing state drug court system, and it is available in every Ohio county.

3. Community Based Correctional Facilities:
The state has financed the development of a statewide network of community facilities focused on treatment and rehabilitation of low-level felony offenders. ³ Available to all counties, the Community Based Correctional Facilities get offenders out of county jails and avoid the need for state incarceration. In addition to addiction services, these facilities provide educational, vocational, and mental health services.

4. Drug Courts:
Ohio is the number-one state in the country in regards to the ongoing development of the drug court model of "therapeutic jurisprudence." ⁴ The drug court approach to drug addiction emphasizes accountability and responsibility on the part of the addict as the basis for real long-term recovery from the chains of addiction. In most drug courts, the offender is diverted prior to sentencing for a rigorous and closely monitored course of treatment lasting for at least one year. The court remains actively involved by conducting weekly hearings to applaud progress and impose sanctions for noncompliance.

The model works because the option of incarceration remains. Brief periods of local lock-up, or "flash incarceration," are used as treatment tools to get the attention of those whose recovery is in jeopardy. And the threat of prison remains as an incentive to complete the program. Upon successful completion, the felony case is dismissed and the offender is eligible to apply for a sealing of his or her record. The expanding drug court system has been proven effective, and it will be gutted by passage of State Issue I.

The Campaign for New Drug Policies provides misleading data to support the spurious claim that state prisons are full of low-level felony drug offenders. Current law requires that for a low-level offender to be incarcerated there must be reasons beyond the simple fact of the drug offense. The Campaign for New Drug Policies incorrectly assumes that persons otherwise eligible for diversion under the constitutional amendment are currently serving prison sentences. They have no facts to support this claim. ⁵

The only fact that they advertise is the number of drug offenders currently incarcerated. This is a misleading statistic in that it does not tell voters the number that would have been eligible for release under the proposed treatment initiative. While many of the incarcerated offenders may not have a serious record, they are serving time because they had multiple opportunities for treatment and failed, or they committed new crimes while under community control. Their conduct demonstrated a problem of criminality that was more serious than a simple addiction. ⁶

The Campaign for New Drug Policies data on low-level incarcerated offenders also ignores the role of plea-bargaining in the court system. Many of the incarcerated offenders started out in the system with more serious drug offenses, charges that would make them ineligible for diversion under State Issue I. But as a result of plea negotiations, the charges were reduced to low level felonies of the fourth and fifth degrees. So the offenders committed more serious drug offenses, but statistically are classified as low-level offenders. The initiative will (hopefully) do nothing to prevent incarceration of these more serious offenders.

Finally, the Campaign for New Drug Policies data based on Ohio prison populations is misleading because they don't take the next step in the data analysis - how many of the current inmates would not be in prison if State Issue I were in effect? Their website and campaign literature is devoid of this basic detail. They have failed to do a statistical analysis of currently incarcerated offenders to support their claims that the offenders are unjustifiably locked up. There is no Ohio data supporting the claim that there would be a significant decline in state prison population after passage of the initiative. And the only way to make such a claim is to concede that serious repeat offenders and those who refuse treatment will avoid prison under the provisions of the initiative.

The Campaign for New Drug Policies has touted claims that a reduction in the California prison population is attributable to the passage of a similar drug treatment ballot referendum in that state. The California campaign website linked to the Ohio Campaign for New Drug Policies site asserts that the diversion system was well on its way to saving millions in tax dollars "by reducing our state's jail and prison populations." ⁷ The political director of the Ohio Campaign for New Drug Policies claimed on May 1st that "state prison population of drug users dropped 20 in 1 year after Prop. 36." ⁸ These claims are a gross distortion of data. Director Orlett ignored the cautions of some in his national network who noted, "it will take several years to determine how much impact the drug-treatment law will have on reducing prison populations. ⁹ In the Drug Policy Alliance Executive Summary of Proposition 36 released in March of 2002, the network reported, "it is too early to determine the ultimate success of this program. ¹⁰ Mr. Orlett ignored the cautions of his own organization in making exaggerated public pronouncements about clearing out the prisons.

The gross distortions of California prison population data are not limited to the claims of Mr. Orlett. In a 5-1-02 Drug Policy Alliance website posting, the Alliance claimed that Prop. 36 was responsible for the state's decision to stop all spending on a new maximum-security prison, noting "the new facility is seen as unnecessary." ¹¹ In reality, the California State Department of Corrections had overspent its budget by $277 million, which prompted the state Senate subcommittee to vote down the proposal for a new $500 million-plus prison. ¹² The decision had nothing to do with Proposition 36!

California prison populations, like those across the nation, have declined. But the decline has had nothing to do with Prop. 36. Russ Heimerich of the California Department of Corrections reported that the prisons had been experiencing a two-year decline in population before the passage of Prop. 36. ¹³ This decline mirrored national trends and had nothing to do with new diversion procedures. ¹⁴ And there has been no short-term impact on local and county lock-up facilities in California. As Fresno County jail Capt. Doug Papagni reported, "We haven't felt any relief on the jail population that we can identify." ¹⁵

In fact, declining prison populations and crime rates in California and elsewhere may well be the result of tougher and not more lenient sentencing policies. According to Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, "the stabilization of state prison numbers has been driven not by new lenient sentencing policies, but by the wave of measures implemented years earlier, such as California's three-strikes law." ¹⁶

Misrepresentation #2: "The Initiative Will Save Taxpayer Money." Initiative proponents make their claim of cost savings by using undisputed data that drug treatment is substantially more cost-efficient than incarceration. However, the Campaign for New Drug Policies analysis doesn't go any further than this shallow statement. The details of projected cost savings are illusory. Specifically, Campaign for New Drug Policies campaign literature and website postings fail to disclose:

• estimates for the level and types of treatment which will be necessary;
• estimates for the related rehabilitation services required by the amendment;
• projections on the number currently in prison that would be eligible; and
• the basis for the cost figures used in the language of the amendment.

In July, the Ohio Council of Behavioral Healthcare Providers announced their opposition to the amendment, explaining that:

"We are concerned about creating yet another funding silo for a targeted population without having much better data on how many offenders would be eligible for diversion and the estimated cost of treatment needs associated with this population." ¹⁷

On its face, the amendment saves no money. It does not require a reduction in spending in any area, including the state prison system. The only mandate is a locked-in annual expenditure of moneys through fiscal year 2009. ¹⁸ There are no studies or analyses from the Campaign for New Drug Policies indicating how the expenditures were determined and why the proponents think the specified amounts are sufficient. The figures are arbitrary and are not based on need. ¹⁹ And no revenue source is specified to fund the program.

The constitutional amendment will throw a wrench into normal budgetary decision-making on the state level. The mandate disregards carefully crafted state statutes on current treatment funding mechanisms. The mandate even overrides an existing constitutional provision limiting appropriations to two years. ²⁰ The amendment makes drug addicts "a constitutionally mandated higher priority than higher education, environmental clean-up, economic development and public health." ²¹ Regardless of duplication of services and actual treatment needs, current treatment funding cannot be supplanted by the new funding. ²²

The real cost problem with the amendment is the hidden costs that will be passed on to municipal and county governments and local taxpayers. The amendment is a huge unfunded constitutional mandate for county and municipal action.

The following "hidden costs" overwhelm any shallow claims of taxpayer savings by amendment proponents:

1. Underestimated Drug Treatment Costs
Campaign for New Drug Policies cost savings estimates are based on the treatment cost figures for the least expensive type of treatment - minimal monitoring of outpatient counseling. Outpatient programming is estimated at $1800 per person as opposed to residential treatment costs of $6800 per person. ²³ The same types of cost assumptions were made in California during the Proposition 36 campaign. And the claims of the California advocates were grossly underestimated. As a recent Marietta Times article noted, "In California, voters approved a similar law in 2000. The California law budgeted $120 million annually [compared to $38 million per year proposed in Ohio], but treatment centers have already returned to the state asking for more funds." ²⁴

California estimates were flawed for several reasons. First, proposition proponents underestimated the need for intensive drug treatment:

"Four months into California's landmark experiment with treating drug offenders as patients rather than criminals, officials are scrambling to cope with a clientele that is far more severely addicted than expected... 'These are clients who need intensive, highly structured residential treatment for a substantial period of time,' said Santa Clara County Superior Court Judge Stephen V. Manley. '’We simply don't have beds for them...' " ²⁵

The Drug Policy Alliance of California has recognized the error of their campaign claims of massive cost savings and sufficiency of funding. A recent eNewsletter noted that counties are exceeding their allotted treatment monies and are dipping into general funds to comply with the state mandate. ²⁶ The Deputy Director of the California State Department of Alcohol & Drug Programs explained that the unanticipated severity of addictions has created a shortage of residential treatment beds. ²⁷ But despite the admissions of their California counterparts, Ohio proponents have not modified their exaggerated claims of cost savings.

In addition to underestimating the level of necessary treatment funding, California advocates also failed to anticipate increased costs of outpatient services as a result of the expanded client base. In addition to increasing the number of hard-core addicts diverted into treatment, increased numbers of clients with multiple prior convictions and mental health problems were pushed into traditional treatment programs. ²⁸ As a result, treatment providers have faced unanticipated costs involved in upgrading clinic security. The per person outpatient costs have skyrocketed in California.

Finally, the Ohio proposal will result in a substantial inflation of treatment services by creating a multi-layered hierarchy of autonomous treatment providers. A "Qualified Treatment Professional Treatment Provider" must conduct the initial assessment of diverted offenders. ²⁹ The Qualified Treatment Professional must provide the court with a list of unaffiliated and independent treatment providers in the community capable of providing the recommended services. ³⁰ In addition, the court may appoint an "Independent Treatment Monitor" to oversee and second-guess treatment-provider decisions and the adequacy of the Qualified Treatment Professional ’s treatment plan. ³¹ The amendment requires that treatment providers in the community be fragmented into competing agencies. It creates a government-financed layer of treatment "supervisors" who are required to look over the shoulder of all field counselors. None of the Campaign for New Drug Policies cost estimates assume this new treatment bureaucracy.

2. Undisclosed "Rehabilitation Services" Costs
The language of the constitutional amendment requires a range of services far beyond drug treatment. Preliminary language in the amendment expresses a clear intent for provision of "substance abuse treatment and rehabilitation programs..." ³² The mandated programs are intended to "increase the employability" of participants. ³³ Treatment plans must include recommendations for appropriate social services in addition to drug treatment. ³⁴ Funding provisions discuss "services designed for the special needs of women and parents, pregnant women, and other culturally and linguistically diverse populations." ³⁵ Another funding provision discusses the need for "related rehabilitation programs and support services, such as vocational training, literacy training, family counseling, and mental health services...” ³⁶

The amendment requires a "whole person" approach to treatment of addiction - wrapping the offender with a broad range of services to address every social need that might contribute to the drug dependency. ³⁷ While such a social welfare proposal might have merit, it is not discussed with any detail in the Campaign for New Drug Policies literature. It is an enormous and expensive mandate that is not factored into any of the cost savings claims. It is a vastly larger program than the simple drug treatment plan advertised to the public, but it remains a hidden component of this constitutional iceberg. The Campaign for New Drug Policies has not engaged in an open and honest debate about the dynamics of the initiative.

The mandate for broad rehabilitation services is especially troubling given its inclusion into the state constitution. Proposition 36 in California, with similar mandates, was a legislative rather than a constitutional mandate. As such, the inability to fund the mandate creates a budget crisis in California. In Ohio, however, the crisis will be constitutional in scope. Arrested drug offenders will have a right to a comprehensive array of rehabilitation services. By providing a constitutional right to drug and rehabilitation treatment services, and by imposing a requirement for "adequate" funding, ³⁸ the amendment will open the state to a legal challenge similar to the decade-long DeRolph school funding lawsuit. ³⁹

The concern over a broad constitutional entitlement to services for drug addicts is not exaggerated. The Campaign for New Drug Policies briefly mentions the need for the "wrap-around" services at its website:

"When a treatment plan is designed for each person, it will include recommendations for necessary literacy training, vocational training, family counseling and similar services that can help address problems underlying drug abuse. All of these programs - not just drug counseling - become part of the required treatment regimen, and the funds provided in the initiative will go to pay for these services." ⁴⁰

Proponents underestimated the costs for broad rehabilitation services in California. ⁴¹ This single issue, standing alone, is sufficient reason to Vote

No. 3. Hidden Administrative & Supervision Costs
Implementation of the constitutional mandate will require a significant increase in judicial and probation supervision resources. First, each drug case will require a substantial increase in judicial activity -- regular and formal court hearings for the duration of the one-year to eighteen-month treatment period. Defendants are given the implied right to demand formal hearings to challenge determinations of ineligibility. ⁴² Courts must hold hearings to review the elements of recommended treatment plans. ⁴³

Based on their new constitutional entitlement, offenders will be empowered to challenge judicial appointments of Qualified Treatment Professional s, treatment providers, and Independent Treatment Monitors. ⁴⁴ The Qualified Treatment Professionals, treatment providers, and Independent Treatment Monitors can require the court to address specific treatment issues on a regular basis. ⁴⁵ (And while the court must formally address all recommended changes, there are no provisions allowing the court to override the recommendations of a Qualified Treatment Professional! The lack of discretion issue will be discussed under "Big Lie #3.")

The court must conduct financial "ability to pay" hearings where offenders are permitted to challenge financial requirements of program participation. ⁴⁶ Offenders charged with both non-drug related and drug-related program violations while in treatment are entitled to full evidentiary hearings. ⁴⁷ In all likelihood, the court will be required to hold hearings on the issue of extending the duration of the treatment plan. ⁴⁸ Finally, even after the case is dismissed, the court may be required to hold post-dismissal supervision hearings. ⁴⁹

While each section of the initiative cited does not use the term "hearing," the amendment does not change judicial barriers to ex parte decision-making. And since the initiative elevates the offenders' interests in the process to the status of constitutional rights, offenders have every reason to challenge judicial determinations with which they disagree. The courts will have no choice but to formalize the numerous procedural requirements. And all of these hearings are in addition to normal case processing, which is not reduced by the amendment. The concern about the administrative and financial burdens on court systems is being borne out in California. Los Angeles County needed far more than its state-allotted $30 million to pay for more lawyers and court staff to handle Prop. 36 cases. ⁵⁰ The hidden costs of court administration were discussed during the campaign, but proponents dismissed the arguments as insignificant. ⁵¹ Costs in Fresno County were so significant that 82% of state funds went to court and administrative costs, and only 18% of the funds were actually spent on drug treatment. ⁵²

Ohio counties will be in a much more precarious and costly situation than any county in California. To avoid the California problem of administrative costs eating into treatment funds, the Campaign for New Drug Policies amendment language requires counties to spend 85% of their allotted state funds for treatment; only 15% of funds are available for "administration costs for treatment providers, transportation for offenders to treatment, additional probation department costs, and court costs." ⁵³ There will be an inevitable shortfall of funds to cover increased administrative costs, as is being proven by the California experience. But state funds cannot be used to cover the expenses of administering the initiative. The result means that county governments will be forced to pay for the constitutionally mandated procedures.

4. Supervision Costs & '-No-Show" Offenders
As noted, all costs associated with local administration will increase under the initiative. Particular attention is warranted on the issue of probation supervision and the problem of "no-show" offenders.

Offenders are diverted to treatment before any assessment of their treatment needs is made. In California, an exceptionally high number of offenders never make it from the courtroom where diversion is ordered to the treatment center for their assessment. According to the Los Angeles Times, several hundred defendants failed to follow-up with treatment once the initial diversion had occurred in Los Angeles County. The result was the filing of hundreds of arrest warrants. ⁵⁴ The percentage of no-shows across California is staggering:

• Orange County: 33% drop-out rate
• San Diego County: 46% drop-out rate
• LA County: 31% drop-out rate ⁵⁵
• Fresno County: 33% drop-out rate ⁵⁶

"We're losing them in the parking lot somewhere between the court and the treatment facility," according to Mary Anne Sherman, Kings County Deputy Mental Health Director. ⁵⁷ The pattern of noncompliance also is occurring in Arizona, where "25% of the people sentenced to probation are thumbing their nose at the system. People are walking away from treatment, said Special Assistant District Attorney Barnett Lotstein." ⁵⁸

The treatment and community safety implications of this issue will be discussed later in this analysis. But the no-show issue impacts on cost considerations in a unique and major way. It creates another unfunded mandate given the Section (I)(8) cap on use of state funds for "additional probation department costs." As Jim Davis of The Fresno Bee reported, "the high number of no-shows strains probation departments that need to find the people and get them into treatment..." ⁵⁹ Proposition 36 has necessitated an increase in county probation staffs across the state of California.

The irony of the California crisis is that if there were a higher compliance rate, the treatment provider and court administration of Proposition 36 would have collapsed due to lack of funds. The high noncompliance rate is the only reason implementation costs have not bankrupted the diversion program. ⁶⁰

5. The Hidden Costs of Local Jail Incarceration
Like Ohio's initiative, Proposition 36 limited punishment of California felony drug offenders to local incarceration. The alleged savings in state prison costs are thus offset by an increase in local incarceration costs. And state treatment money in Ohio cannot be used to cover the increased municipal and county costs associated with local incarceration. The Ohio Community Corrections Organization has stated its opposition to the initiative in part based upon the fact that:

".. .the proposed constitutional amendment would result in local jail incarceration... creating an unfunded mandate on local communities beyond the resources available to local criminal justice systems..." ⁶¹

Local jails cannot bear the burden of State Issue 1. County facilities are much more severely crowded than state prisons. ⁶² County overcrowding means either accused criminals awaiting trial are released into the community, or drug offenders who thumb their nose at the treatment system are allowed to walk away without consequences.

Summary of Misrepresentation #2
With only a short time remaining before a vote on this major change to Ohio's constitution, the Campaign for New Drug Policies have yet to provide data supporting their claim that the initiative will save Ohio taxpayer money. In reality, the initiative will create a funding disaster at the state level. The amendment's funding details reflect its drafters' ignorance of Ohio's constitutional and statutory budget procedure guidelines and requirements. And the enforcement of the new rights generated by the amendment will create a massive unfunded administrative burden on local government. The Campaign for New Drug Policies has intentionally avoided a discussion of the true costs of their proposal, repeating only the simplistic claim that "treatment is cheaper than incarceration."

Misrepresentation #3: "The Initiative is About Drug Treatment."
The Campaign for New Drug Policies and Drug Policy Alliance claim that the ballot initiative is about guaranteeing drug treatment to addicts is the biggest and most serious of the three misrepresentations. It exploits the tragic social and personal consequences of addiction as a means to achieve a political end – the decriminalization and eventual legalization of all drugs. There are a multitude of facts that lead to this inescapable conclusion, but the best evidence of the true intent of the initiative is the language of the amendment itself.

1. The Amendment's Eligibility Criteria Prove Treatment is Not the Goal. Proponents claim to take a humane and medically appropriate approach to drug abuse and addiction by diverting offenders from prison into treatment. If this were the case, one would reasonably expect that addiction and amenability toward treatment would be fundamental requirements for diversion. However, the diversion eligibility language of the amendment is devoid of any reference to addiction as a criterion for admission.

Diversion eligibility is largely limited to the nature of the charge and not the substance abuse and treatment history of the drug offender. So long as the charge is one of possession or use of an illegal drug, it doesn't matter whether or not the offender is an addict, or if he or she has ever even used a drug. ⁶³ This broad eligibility criterion belies any claim that treatment for addiction is the primary purpose of the amendment.

Assessments of an offender's drug abuse history, the need for treatment, and the offender's amenability to treatment are all secondary considerations. An offender is diverted and thus exempt from prison under any circumstances before any treatment professional even talks to him or her. ⁶⁴ The assessment is completely unrelated to any eligibility criteria. Several hypothetical scenarios illustrate the complete irrelevance of treatment issues to initiative backers.

The "Novice" User.
An offender is arrested on a diversion-eligible possession charge. He requests diversion, which must be ordered by the judge. The immediate jail release and non-incarceration provisions of the amendment kick-in and the offender can never again be sentenced to prison on the charge. The offender then goes to the Qualified Treatment Professional for an assessment to determine the appropriate level of treatment.

The offender, despite being a chronic user, reports to the Qualified Treatment Professional that he has never used before – the first time he ever bought and possessed drugs was the night he got arrested. Treatment assessment instruments rely on client self-reporting. If there is no prior arrest history to disprove the self-reported claim of being a novice user, the Qualified Treatment Professional must develop a treatment plan geared toward a non-user. The plan would involve the bare minimum of outpatient drug abuse education, lasting no more than a few months. Despite a real need for treatment, the chronic user evades the purported goal of the amendment because the amendment was not written with treatment as its focus.

The No-Show Offender.
As noted, offenders can simply walk away from the court and never return once they receive the mandatory diversion. If they are ever arrested, they must be immediately released upon a renewed request for treatment. The prohibition on incarceration does not contain an exception for absconders prior to their full hearing and termination from the treatment program. ⁶⁵ And the offender must be given another opportunity to appear for his assessment unless the state meets certain evidentiary burdens – the offender walks away and the state is still required to prove with clear and convincing evidence that the offender should not be given another chance! ⁶⁶ The amendment obviously does not promote treatment when it allows offenders to completely ignore treatment and still obtain a significant sentencing benefit for their irresponsible conduct.

The Sham Applicant.
An offender may decide to apply for the mandatory diversion even though he has absolutely no intention to even consider treatment. He requests diversion simply to avoid prison under Section (B)(4). Once the court orders the mandatory diversion, the offender may withdraw his request for treatment. ⁶⁷ Even though the offender was never serious about diversion, the court may no longer sentence the offender to prison – the sham applicant obtains his desired alternative sentence of 90 days local incarceration. ⁶⁸ It is not unreasonable to expect hard-core addicts to choose a simple sentence of local incarceration over either treatment or an extended prison term. The ability to exploit the purported treatment purpose of the amendment by sham applicants proves the language of the amendment was never intended to achieve meaningful treatment.

The offender's power to easily avoid treatment under the amendment is a significant change from current diversion and community treatment programs. An assessment of an offender's treatment needs is a prerequisite to diversion, not an afterthought. To be meaningful, eligibility guidelines must consider the needs and characteristics of the individual offenders. Offenders who use current diversion programs to avoid accountability for their behavior are subject to the full weight of the felony sentencing protocol developed and refined by the state legislature. And making a sham application for diversion under present policies would be a meaningless exercise – the diversion would be revoked and the offender would again face felony sentencing. The possibility of severe sanctions for noncompliance with diversion and treatment are essential to achieving treatment compliance. The hypothetical offenders illustrate the hollow claim that the amendment is about treatment.

2. The Amendment's Dismissal Protocol Proves Treatment is Not the Goal.
It is not necessary to successfully complete treatment in order to reap the full benefits of the diversion – a dismissal of charges and sealing of the record of the case. Section (H)(3) of the amendment deals with offenders who fail to successfully complete the required treatment program. At the end of the one- year time limit, the treatment provider may conclude that "the offender has not successfully completed the treatment plan. .." ⁶⁹ The court only has three options, all of which will lead to a dismissal of the offender's case.

First, the court can extend the period of treatment for a period of six more months. ⁷⁰ This option does not address the issue of the offender who remains unsuccessful after eighteen total months of treatment. In such a case, the court must turn to the remaining two options.

The second option allows the court to dismiss the case and terminate the treatment plan:

[The court may] "Dismiss the stayed proceedings, terminate the treatment plan and order continued supervision, but not incarceration, of the offender for a period of up to ninety days..." ⁷¹

The amendment rewards a failure of treatment with a dismissal of felony charges! Proponents argue that the remainder of the language in this subsection retains some teeth with the court – the court may order continued supervision of the offender for up to ninety additional days. This is perhaps the most ridiculous and poorly conceived language in the poorly written amendment. If the case is dismissed and the offender cannot be incarcerated, then there is absolutely no way to enforce the ninety-day supervision directive. The offender can ignore the treatment provider or probation officer with impunity – not a thing can be done to him. And the lack of emphasis on treatment is highlighted in the language of this subsection – even with an attempt to continue supervision, the treatment plan must be terminated.

The third court option when faced with an unsuccessful offender is to:

"Dismiss the stayed proceedings and terminate the treatment plan with a finding that the offender has either:
(i) completed the treatment plan without a determination of successful completion, or
(ii) in the opinion of the court and the independent monitor of the offender's treatment plan, successfully completed the treatment plan." ⁷²

Once again, dismissal is the only alternative. An unsuccessful offender can never be incarcerated. An unsuccessful offender must have his treatment terminated. The only difference in the third option is the type of meaningless finding that the court can include in its entry dismissing the case. It matters little if a dismissal entry says the offender was not completely successful in treatment – the case is still dismissed.

The second finding is even more outrageous. When a treatment provider reports that an offender has not successfully completed treatment, the amendment allows the court to enter a finding under subsection (ii) that the offender “successfully completed the treatment plan." This is incredible! The amendment allows the system to misrepresent the success of the program. It constitutionalizes double-speak: unsuccessful termination of treatment can mean successful completion of treatment!! And such a provision means Ohioans will never know whether the diversion program is really working. If treatment providers are concerned about program success rates, continued contracts with the court, and maintaining a revenue flow, the amendment gives the system an open invitation to fudge results. And the unreliable results will undoubtedly be touted by the Drug Policy Alliance as they continue their campaign in other states for nationwide decriminalization of all drugs.

Please read the dismissal provisions of Section (H)(3) again. They clearly illustrate that treatment never was and never will be the goal of the Campaign for New Drug Policies. Meaningful and successful treatment is not the desired or required outcome for offenders eligible for diversion. The goal is obviously avoidance of incarceration and dismissal of felony drug charges. This is proven by the fact that successful completion of treatment is secondary to dismissal of the felony case.

3. The Failure to Demand Offender Accountability Proves Treatment is Not the Goal.
Under current diversion models, including drug courts, offenders must enter a plea of "Guilty" prior to diversion. While sentencing and their status as convicted offenders is stayed, pending successful completion of treatment, the system mandates an important first step in treatment – the offender's acknowledgment of personal responsibility for losing control of their life to drugs. Where there is diversion without a plea acknowledging personal responsibility, the treatment loses an essential component of recovery.

The language of the amendment does not require offenders to acknowledge any responsibility or guilt before diversion. The court must act upon a request for treatment even if the offender continues to deny guilt. ⁷³ If the charge makes the offender eligible for diversion, then proceedings are stayed and the offender is released without necessity of a plea. Under the amendment's procedural framework, offenders have every incentive to fully litigate their cases, from suppression hearings through jury trials. The incentive to litigate is present because even if an offender is convicted at trial, the initiative continues to require diversion upon demand. ⁷⁴ And a such a demand could be made in the middle of a jury trial, requiring a mistrial and immediate diversion with the offender still reserving his right to demand a full jury trial at a later date.

The lack of personal responsibility and accountability in the text of the amendment is reinforced by procedures employed when an offender is unsuccessfully terminated from treatment. Even though such an offender is still under the 90-day local incarceration cap, the processing of his criminal case begins anew. The offender can demand a jury trial on his original criminal charge. ⁷⁵

Step one of the twelve steps to recovery requires an offender to admit that he had become powerless over his drug of choice, and that his life had become unmanageable. This admission and first step to recovery is embodied in the current diversion procedure requiring a formal plea of Guilty. The amendment eliminates this important first step, proving again by the language of its text that treatment never was the goal of the initiative.

Fact 1: The Amendment Will Destroy Drug Treatment in Ohio.
In contrast to the big lie of State Issue 1 proponents, the amendment will actually dismantle the developing network of effective treatment programs in Ohio. The remaining system will be one of de facto drug decriminalization. There are several reasons to believe, that the initiative will undermine treatment of addiction.

1. The Amendment Fragments the Treatment Community.
As noted earlier, the treatment assessment and provider identification process creates a three-tiered bureaucracy of independent and competing treatment agencies. Agencies that now coordinate services and fill-in gaps will have every incentive to undermine and criticize competing agencies. Courts will be faced with a delegation of case management authority to an uncoordinated network of agencies with competing interests and goals.

It is also important to note that the current diversion system in Ohio is based on a cooperative network of all actors in the criminal justice system: the police, prosecutors, defenders, courts, and local treatment providers. Networks have been developed that insure stability and broad-based support for diversion efforts. And the network insures a level of accountability and community safety through transparency and a balance between the agencies and actors. The amendment completely bypasses this network by bestowing a treatment right upon drug offenders and by transferring all decision-making authority regarding treatment to the Qualified Treatment Professional.

Budgetary competition will also create a triage system of offender treatment, resulting in superficial and ineffectual treatment for those who claim only sporadic drug use. For example, in Alameda County, California, over 75% of all referrals were sent to limited outpatient programming; and such programming rarely extended beyond three months in duration despite the option of eighteen month treatment plans. ⁷⁶ "Level I" treatment under Proposition 36 is necessarily bare bones, with no drug screens or probation supervision. ⁷⁷ Offenders are diverted and immediately returned to their communities with minimal counseling and no support services.

Of course, minimal treatment intervention is perfectly acceptable to the Campaign for New Drug Policies. Their website "Frequently Asked Q & A" section explained that casual users of drugs don't need long-term or intensive treatment. Unfortunately the determination as to who is a casual felony user is based on the addict's self-reporting of use history.

2. The Integrity & Quality of the Treatment System Will be Compromised.
If proponents are correct in predicting a massive influx of offenders into the treatment system, then the system will by necessity have to quickly expand. The Drug Policy Alliance trumpets the fact that in California there has been a 68% increase in the number of state-licensed treatment programs since the passage of Prop. 36. ⁷⁸ What they neglect to mention is the concern in that state about the proliferation of "fly-by-night" treatment providers that competitively underbid established and comprehensive programs. Dario Frommer, a California State Assemblyman for the 43rd District, expressed concerns on this issue in April:

"For the record, I supported Prop. 36, but tough questions need to be asked about irregularities in the licensing and application process for sober-living facilities...Licensing regulations are vague as to what constitutes treatment. The staff, which can be anywhere from one to two people at a time, have minimal training. 'Training' is not clearly defined in the licensing regulations and is determined on a case-by-case basis. Two or three facilities providing no certified supervision to clients with substance addictions on a single residential street can completely change the dynamic of that street and pose a potential threat to that community." ⁷⁹

The Ohio amendment language does not provide sufficient protection to guard against this possibility. Treatment providers need not be both licensed and certified. ⁸⁰ Likewise, the extremely important Qualified Treatment Professional need not be both licensed and certified. ⁸¹ The use of disjunctives in the amendment's text means that Qualified Treatment Professionals need not have specialized knowledge, skill, experience or training in the field, so long as they have had education in the area. ⁸² The "education" requirement does not necessitate a degree. ⁸³ And so long as the Qualified Treatment Professional has some background in the field of mental health and can conduct an assessment interview, they need not have any training, knowledge, skill, experience or education in the areas of substance abuse or addiction therapy. ⁸⁴

3. Restricted Court Discretion will Undermine Treatment Effectiveness.
Judges currently have the authority to closely monitor compliance by diverted offenders, both formally and informally. With the authority of their position and ability to ensure agency interaction, judges can coordinate and personalize treatment to the needs of individual offenders while maintaining a perspective to ensure community safety and protection. This authority is especially true in the "therapeutic jurisprudence" model of the expanding drug court movement. The amendment effectively removes the judge from an active role in individualizing treatment and ensuring community safety. As the Director of the Ohio Office of Criminal Justice Services put it, "the initiative limits judicial review and court input at every stage for potential drug offenders..." ⁸⁵

As already explained, the judge has no discretion in the initial diversion decision. If the offender is charged with a diversion-eligible offense, then the judge has no choice but to order diversion. Such an order is required even if the offender demonstrates a poor attitude toward treatment and a disrespectful demeanor toward the court. The court may not consider characteristics of the offender. So long as the defendant is a first or second-time offender, the court has no discretion in the diversion decision. ⁸⁶

Once the diversion to the Qualified Treatment Professional occurs, the judge assumes a minimal role in the case. The Qualified Treatment Professional and not the judge determines the appropriate treatment plan. ⁸⁷ While the court may review, request revisions, and approve the treatment plan, there are no standards in the amendment to provide the court with any substantive powers in this process. Since the offender has a constitutional right to speedy treatment under the plan, court "obstruction" of the diversion process could effectively be challenged.

The Qualified Treatment Professional provides the court with a list of treatment providers from which to choose. ⁸⁸ Nothing prevents the Qualified Treatment Professional from submitting only one provider's name to the court for approval. The court is given no authority to augment the list of providers.

The amendment is devoid of language limiting the discretion and conduct of the Qualified Treatment Professionals. There are only provisions for appointment, and no authority is specified for judges to remove a duly appointed Qualified Treatment Professional.

Elected judges must delegate their constitutional authority to control their dockets to unelected treatment professionals under the amendment. If a judge errs in a discretionary judgment, the crucible of the electoral process will provide needed checks and balances. In contrast, the amendment insulates unelected bureaucrats from scrutiny and review of their decisions. As the Columbus Courier has explained, limitation of judicial discretion compromises both treatment and public safety:

"Rather than being required to order treatment programs, judges should be able to continue to decide each case on its own merits. Sometimes treatment is what's needed; sometimes prison is the best way to get a young offender's attention." ⁸⁹

4. Secrecy Will Undermine Treatment.
The amendment prevents the free flow of data necessary to ensure appropriate treatment. It specifically precludes waivers of confidentiality by offenders concerning medical or mental health issues. ⁹⁰ The importance of medical and mental health information to tailoring appropriate treatment and supervision is apparent to everyone involved in the treatment field. For example, the initiative allows offenders to withhold information about prescribed medications from treatment providers and the courts. And the interrelationship between mental illness and addiction requires a multi-disciplinary treatment approach that the limited confidentiality waiver in the amendment precludes.

Based on the confidentiality provisions of Section (D)(7), treatment providers are empowered to withhold information from the judge assigned the case. There is no review mechanism or recourse in the text available to the judge who believes that information has been inappropriately denied her.

Ohioans Against Unsafe Drug Laws provided the following scenario:

"Currently, a judge is privy to confidential information between an offender and his or her treatment team that can help the judge make an appropriate assessment of the offender's progress in treatment. Under the proposed Amendment, the judge may know only 'objective data' about the offender, such as the result of a urine sample. If a relapsed offender turns in an adulterated urine sample, the judge may be lacking other information, such as the offender’s communication with the treatment provider, to help reach a correct assessment.” ⁹¹

5. The Lack of Drug Testing Will Undermine Treatment
Treatment professionals uniformly agree that random drug testing is an essential treatment tool for individuals struggling with addiction. Unfortunately, the Drug Policy Alliance and network of legalization advocates behind the Ohio Campaign for New Drug Policies strongly oppose the use of drug testing. Ethan Nadelmann of the Drug Policy Alliance (who will be discussed in greater detail later in this analysis) described drug testing as ".. .a snake-oil solution for both real and nonexistent drug problems." ⁹² Internet links to the Drug Policy Alliance website include "Marijuana.com - The Internet's Answer to the Drug War." The site provides detailed instructions on beating drug screens. And in the tradition of Consumer Reports, the site provides a quality and price analysis of commercial products used to avoid urine screen detection of drug use.

The issue of drug testing surfaced in California after passage of Proposition 36. Treatment providers and courts complained that there was no funding under the new law to cover the cost of drug testing. ⁹³ Voters essentially passed a "treatment without accountability" ballot initiative. Defendants and treatment centers have scrambled to pick up the costs. Supplemental appropriations have been attempted, but the problem remains. The Oakland Tribune explained that the drug testing omission was intentional and not an oversight by drafters of the ballot initiative:

"Some counties have complained that there is not enough money for urine tests to reinforce Proposition 36-mandated treatment. The initiative's authors specifically banned using any of the measure's $120-million-per-year appropriation for this, fearing too much money would be used for testing and not treatment. Efforts to take extra money from the state's general fund late last year were stymied by the budget crisis." ⁹⁴

The Ohio ballot initiative appears to have de facto drug testing limitations. Rather than explicitly ban use of funds for testing, the amendment drafters have hidden the limitations by omission. The only reference to drug testing is in the amendment's general "Intents and Purposes" section where a reference is made to use of drug testing as a treatment tool. ⁹⁵ The reference is worded in a manner that leads to the inference that the drafters were more concerned with the use of screens as an evidence-gathering tool for the purpose of imposing sanctions than with use of screens for treatment. There is no mention of use of drug screens in the large "Treatment Plan" subsection (D) of the amendment.

Given the Drug Policy Alliance history on this issue, there is a concern that they will use the funding restrictions to squeeze out any budget allocation for drug testing. Since testing is not a designated part of a treatment or rehabilitation plan, state money arguably cannot fund the costs of testing because use of the monies is limited to "pay for the costs of providing treatment programs..." ⁹⁶ It will easily be claimed that testing is administrative and supervision/probation costs for which counties are limited to using only 15% of total state appropriations. ⁹⁷

Because the amendment drafters have historically opposed drug testing, and because the text of the amendment omits any requirement of testing in treatment or rehabilitative services, it is prudent to assume that State Issue 1 will not support treatment with accountability and monitoring through drug testing. Without regular and random drug testing, treatment is undermined. As General McCaffrey, former Director of the Office of National Drug Control Policy stated:

"If you think you can deal with chronic drug addicts without holding them accountable for their behavior, you don't understand the nature of this brain disease."

He was critical of Proposition 36 because it did not call for frequent drug testing. ⁹⁸

6. Eliminating Prison as an Option Undermines Treatment.
Addiction is a cruel and tenacious master. The fact that addicts in recovery relapse even with the threat of imprisonment hanging over their heads is not surprising. But if the threat of prison were removed, the addict's reasoning tilts substantially in favor of continued use and against compliance with treatment directives. The amendment eliminates prison as a coercive treatment incentive by allowing, at most, 90 days of local incarceration for treatment termination.

The consensus of opinion in the criminal justice and treatment fields is that effective treatment requires a stick as well as a carrot. Even after arrest, an addict's motivation for treatment may be low. But the opportunity to avoid incarceration is often sufficient incentive to ask for treatment. Maintaining them in treatment, at least initially, requires the constant threat of serious consequences. Toledo Mayor and Ohioans Against Unsafe Drug Laws co-chair Jack Ford dislikes the initiative because it takes away the best tool judges have to discourage drug use – their ability to threaten serious prison time if offenders don't comply with treatment. ⁹⁹ According to Dr. Joe Gay, director of an Athens recovery center, "it lacks the incentives needed to get people to recover... It won't work." ¹⁰⁰ A Dayton Daily News editorial in opposition to the initiative explained that many courts in Ohio are "successfully using the threat of significant jail time to get people into treatment and keep them on the straight and narrow. This amendment would limit the power these courts have to command addicts to do what's best for them." ¹⁰¹

The Drug Policy Alliance and the legalization network decry the use of coercive government authority as a treatment tool, but the reality is that coercion is often an essential component of treatment. The nature of addiction is that the user is resistant to treatment. And over the past two decades, a consensus has emerged between liberals and conservatives that "coercive abstinence" is an effective approach to treatment. ¹⁰² Research shows that those forced into treatment do at least as well as addicts who enroll voluntarily – often better, because they must stay in therapy longer or risk incarceration. ¹⁰³ An analysis of treatment records of 70,000 addicts since 1967 produced the major conclusions that coerced participants stayed in treatment longer, and that "the length of time spent in treatment is a reliable predictor of his or her post-treatment performance." ¹⁰⁴

7. Eliminating "Flash Incarceration" as a Treatment Tool Undermines the Effectiveness of Treatment.
Flash incarceration is the use of short periods of local incarceration to "wake up" an offender or "shake" them into compliance with treatment programming. Drug courts routinely use short periods of jail as a sanction to motivate drug-using offenders toward sobriety. ¹⁰⁵

The Drug Policy Alliance and their legalization network disparage the use of "flash incarceration" as a treatment tool, stating that:

"The idea that when people relapse, the punishment should be prison is both antiscientific and fundamentally inhumane... The notion that people should be re-incarcerated based on dirty urine... is bad public policy." ¹⁰⁶

Given their sentiment, it is not surprising that State Issue I eliminates flash incarceration as a tool. Short of program termination, offenders cannot be incarcerated while in treatment. This eliminates a vital treatment tool for dealing with hard-core addicts. California drug court judge and treatment advocate Ellen DeShazer complains that under Prop. 36 that there are no serious sanctions and "defendants have too many chances to fail" at the expense of public safety. ¹⁰⁷ According to the Judge, the proposition doesn't give the court the tools needed to make treatment work. ¹⁰⁸ Seriously dependent offenders do not respond well to an "incarceration free" treatment environment. ¹⁰⁹ As Judge Stephen Marcus of Los Angeles County put it:

"One of the lessons we are learning is that we are getting a lot of people who are so addicted they just aren't ready for treatment. Their addiction is so powerful it controls everything in their lives." ¹¹⁰

For such individuals, periods of flash incarceration may be the only alternative to a deteriorating life of dependency, crime, and death.

8. The Amendment will Destroy Ohio's Drug Courts.
Initiative proponents have an inconsistent position on the drug court movement. On one hand, they have to criticize the movement as limited and ineffective in order to justify such a radical constitutional change. ¹¹¹ On the other hand, the proponents are quick to claim the extraordinary success of the drug court treatment model as the basis for initiative implementation, claiming that the amendment will "make every court in this state a drug court.” ¹¹²

As explained previously, drug courts and the therapeutic jurisprudence model of treatment have two unique components: the coordination of diverse system actors into a team that supervises treatment by consensus, and an ability to impose swift and severe sanctions for noncompliance – including flash incarceration. The initiative emasculates drug courts by removing both of these unique elements from their treatment model.

Experience has proven that the "non-incarceration" initiatives destroy drug courts. Why would an offender subject himself to a rigorous one-year period of intensive treatment and supervision when he could spend a short time in county lock-up and walk away from his crime? After implementation of Prop. 36 in California, the drug courts "dried up." ¹¹³ According to a Los Angeles County data task force on Proposition 36, drug court participation was down 23% in the first six months of Prop. 36 implementation. ¹¹⁴

The impact of State Issue 1 on Ohio drug courts is not really a matter of dispute. Chief Justice Thomas Moyer of the Ohio Supreme Court has taken the public position that the amendment will compromise personal accountability and the effectiveness of the state's current drug court structure. ¹¹⁵

9. The Amendment Ignores & Crowds Out Others in Need of Treatment.
Alcoholics and alcohol-driven offenders are specifically excluded from treatment under the amendment. And the amendment does not include juvenile drug offenders, an especially troubling exclusion given that most substance abuse problems begin in the early teen years. Proponents have a difficult time claiming the initiative seeks to serve a neglected population in Ohio when they themselves ignore the two biggest segments of that population.

Worse than actually ignoring alcoholics and juveniles, the amendment will financially squeeze out services for those populations, as well as for drug addicts voluntarily seeking treatment without having been arrested. While the amendment purports to freeze current treatment expenditures and avoid budget trade-offs ¹¹⁶, the amendment's enormous costs will use up all available money for the constitutionally mandated treatment programs. Other substance abuse treatment and mental health programs will lose in budget competition with a constitutionally protected allocation. Additionally, the Section (I)(5) trade-off freeze will only last for six years, jeopardizing the long-term future of all other treatment and rehabilitation programs in the state.

An array of treatment and public voices has expressed alarm at the possibility of crowding out many motivated addicts who want and need treatment. In an editorial opposing the initiative, the Dayton Daily News stated:

"The measure sets up a dubious system for distinguishing among drug addicts. Those who commit a crime would go to the front of the line for treatment, because the sponsors are eager to reduce the number of people going to prison for mere possession. Drug abusers who haven't been arrested would get no guaranteed treatment. The state won't ever have enough money to heal everybody's addiction; recognizing that fact, a decision to give offenders first priority over those who haven't been charged but might be better suited for treatment doesn't make sense." ¹¹⁷

The Ohio Office of Criminal Justice Services concurs, noting "the $250 million can't be used for people outside the court system who know they have a drug problem and ask for help." ¹¹⁸ As Washington County Sheriff Bob Schlicher said, "My fear is we'll have people who want the help and won't get it because the system will be clogged with people" who lack the necessary motivation and should be incarcerated. ¹¹⁹

10. The Treatment Community Opposes State Issue 1.
One would reasonably expect treatment professionals to support a treatment initiative which guarantees them funding and increases their profile in the criminal justice system. But such support does not exist for State Issue 1. Treatment professionals have not been fooled by the Campaign for New Drug Policies's shallow sound bites and completely unsupported assertions. The treatment community has recognized that the initiative is not about treatment, and a strong consensus has emerged in opposition to the amendment.

After hearing from proponents and opponents at their May meeting, the Ohio Association of County Behavioral Health Authorities approved a resolution opposing the initiative. The Association members include 43 Alcohol, Drug Addiction and Mental Health Services boards, 7 Community Mental Health boards, and 7 Alcohol and Drug Addiction Services boards. ¹²⁰ Other treatment and medical organizations opposing the initiative include:

• Ohio State Medical Association
• Ohio Hospital Association
• Ohio Nurses Association
• Ohio Association of Alcohol and Drug Abuse Counselors
• Providers for Enhanced Treatment
• Ohio Treatment Alternatives to Street Crime Partnership
• Ohio Council of Behavioral Healthcare Providers
• Urban Minority Alcoholism and Drug Abuse Outreach Programs in Ohio
• Ohio Chapter of the Mothers Against Drunk Driving
• Ohio Counsel Against Family Violence
• Ohio Association of Drug Court Professionals
• Ohio Parents for Drug Free Youth
• Ohio Community Corrections Organization
• Ohio Community Corrections Association
• Ohio Association of Pretrial Services Agencies
• Columbus Metropolitan Area Church Council
• Ohio Chief Probation Officers Association ¹²¹

In contrast to this impressive and growing list of opponents in the treatment and community corrections field, amendment proponents have not listed a single professional association or service agency as supporting their initiative. The professionals who have closely examined the issue are unanimous in their opposition, despite having an apparent vested interest in seeing many of the provisions pass.

Summary of Fact 1: The Amendment Will Destroy Drug Treatment

-The amendment fragments the treatment community.
-The integrity and quality of the treatment system will be compromised.
-Restricted court discretion will undermine treatment effectiveness.
-Secrecy will undermine treatment.
-The lack of drug testing will undermine treatment.
-Eliminating prison as an option undermines treatment.
-Eliminating "flash incarceration" as a treatment tool undermines treatment.
-The Amendment will destroy Ohio's effective system of drug courts.
-The Amendment ignores and crowds out others in need of treatment.
-Based upon these facts, it is not surprising that Ohio's drug treatment professionals oppose passage of State Issue 1.

Fact 2: Drug Decriminalization & Legalization Are the Real Agenda.
It is apparent that the motivation of the amendment advocates is not to provide treatment for drug addicts. The language of the amendment is not written as a treatment proposal. And the details of the proposal are inconsistent with a treatment agenda. The Campaign for New Drug Policies exploits the tragic social and personal consequences of addiction as a means to achieve a political agenda – the decriminalization and eventual legalization of all drugs of abuse.

The individuals and organizations behind State Issue 1 have a long history of advocating decriminalization and legalization. But their movement recognized over ten years ago that the public would never support drug legalization. As a result of this realization, they have re-invented their movement to achieve the same goal by alternative means. While polls show consistent and uniform opposition to legalization, the same polls show the public overwhelmingly supports treatment as opposed to incarceration for low-level, nonviolent drug offenders. Legalization advocates have seized upon the rhetoric of "treatment versus incarceration" to redefine their movement as one concerned with addicts and taxes as opposed to a movement dedicated to creating a right to use drugs. Rather than openly debate the merits of legalization, they have hijacked the language of the treatment field and corrupted it to achieve through slick and well-funded mass media campaigns what they can never achieve through the chambers of democratic government.

1. State Issue 1 Decriminalizes Felony Drug Offenses.

The classification of a criminal offense as either a misdemeanor or felony is largely determined by the nature of the penalty attached to the charge. Misdemeanants may only be incarcerated in municipal or county jails. Felons are subject to incarceration in state prisons.

By prohibiting the option of state prison incarceration, the amendment effectively decriminalizes felony drug offenses to the status of misdemeanors. And by sentencing classification, the new penalty structure of ninety days local incarceration is less than even 1st degree misdemeanors, under which offenders face up to six months of local incarceration. The amendment reduces the felony classification by several degrees to the status of a mid-level misdemeanor, effectively decriminalizing felony drug offenses.

A federal case concerning the Arizona drug diversion procedure verifies this conclusion. Federal sentencing guidelines require judicial consideration of prior felony convictions. A defendant facing an enhanced federal sentence based on a prior Arizona felony drug conviction challenged the enhancement. The defendant argued that under the Arizona diversion statute, he could not be penalized with felony sentencing incarceration, and thus his prior Arizona conviction could not be classified as a felony. On February 13, 2002, the United States Court of Appeals for the 9th Circuit ruled in favor of the defendant. The court reasoned that despite the felony label, the Arizona conviction was not a felony because no incarceration was permitted under the diversion law. ¹²²

Under State Issue 1, an offender can be arrested in possession of heroin, LSD, meth, PCP, crack, Oxycontin, opium, hashish, ecstasy, and powder cocaine and face a maximum of 90 days local incarceration. Even though he is carrying all those drugs, he faces less time than a first-time DUI offender. And under many current municipal ordinances, he faces less time than someone in possession of a single marijuana joint. Felony drug offenses are effectively decriminalized.

2. The Campaign for New Drug Policies History Confirms a Legalization Agenda.
The Ohio Campaign for New Drug Policies is part of a national drug legalization network that had its organizational beginnings in 1987. In that year, billionaire financier George Soros funded and created The Drug Policy Foundation. Labeled the "Daddy Warbucks" of the drug legalization movement, Mr. Soros has never hidden his social and political agenda to end the government's war on drugs and replace it with policies of "enlightened tolerance." In the organization's early days, there was no deception about the legalization agenda.

In the early 1990's, Soros was joined by millionaire entrepreneur John Sperling and Progressive Corporation Chairman and self-admitted pot smoker Peter B. Lewis. The three men financed a movement to sidestep democratically elected governmental bodies and take their arguments for change directly to voters. In 1994, they financed creation of the Lindesmith Center as the academic arm of the legalization movement. Princeton professor Ethan Nadelmann, J.D., Ph.D., was hired to run the Center. In a 1990 interview with Mother Jones magazine, he was described as "one of the earliest and most listened to voices in favor of drug legalization." ¹²³ The Lindesmith Center online library listed numerous publications by Nadelmann, including:

• Should Some Illegal Drugs Be Legalized ('90)
• How to Legalize ('90)
• The Case For Legalization ('90)
• Should We Legalize? History Answers Yes ('93)
• Switzerland's [legalized] Heroin Experiment ('95)
• Learning to Live With Drugs ('99) 124

In 1995, the Lindesmith Center and its financial backers created the national Campaign for New Drug Policies.

In 2000, the Lindesmith Center and the Drug Policy Foundation merged to form the Drug Policy Alliance. While the personnel remain the same, their biographies have been sanitized of legalization references. Despite years of legalization advocacy, Nadelmann's biography now vaguely states that he advocates "other alternatives to drug prohibition." The merger and new organizational name corresponded with an internet facelift to purge the network of its overt advocacy of legalization. The Drug Policy Alliance has offices in New Mexico, New York, Washington D.C., and three in California.

The Drug Policy Alliance is directly linked to the national Campaign for New Drug Policies, both financially and organizationally. Nadelmann explained that the Drug Policy Alliance used the Campaign for New Drug Policies for ballot initiatives to go directly to voters "who are more open to change." "We know a lot of things cannot move forward in legislation," he says; "there is too much political cowardice and dependence on drug war politics." ¹²⁵

The Campaign for New Drug Policies website claims success for ballot initiative campaigns in California, Arizona, Nevada, Colorado, Oregon, and Utah. ¹²⁶ They are sponsoring ballot initiatives currently in Ohio and Michigan. Their Florida ballot initiative has been delayed by a court battle until 2004. On the Drug Policy Alliance website, an organizational index specifically lists the Campaign for New Drug Policies as a part of its organization. The Drug Policy Alliance claims in its regularly distributed eNewsletter that it is the organization responsible for ballot initiatives seeking "treatment instead of incarceration for first and second time nonviolent drug offenders." ¹²⁷

The Drug Policy Alliance regularly posts eNewsletter updates on Campaign for New Drug Policies efforts across the nation in an obviously coordinated national information network. ¹²⁸ The ballot initiatives are financed by the same three philanthropists as part of a national campaign to dismantle the drug war. According to Nadelmann, the California Campaign for New Drug Policies initiative was "regarded as the high profile anchor of a broader campaign to advance our [the Lindesmith Center] drug policy." ¹²⁹

This legalization network is struggling against and resisting the legalization label that they used to proudly wear. For example, Campaign for New Drug Policies Director Orlett decried the legalization concern as "scare tactics" in a Butler County debate on the ballot initiative on August 22, 2002. In a Spring 2001 article, even Nadelmann used doublespeak to deny the obvious intent of his national network:

"Most drug 'legalizers' aren't really drug legalizers. That's the conclusion I've come to after more than a decade of writing about legalization, associating with 'legalizers,' and being called one myself...The truth is, that's not what I'm fighting for. Nor is it the ultimate aim of the philanthropist and financier George Soros... There is no drug legalization movement in America. What there is, is a nascent political and social movement for drug policy reform.

We believe that people should not be incarcerated for possessing small amounts of any drug for personal use.

We reject drug-testing programs that reveal little about whether or not people are impaired in the workplace...

We believe that those who sell drugs to other adults are not the moral equivalents of violent and other predatory criminals, and should not be treated so by our criminal laws. These beliefs... [are] not legalization..." ¹³⁰

Earlier this year, Nadelmann won the International Rolleston Award for contributions to "Harm Reduction" strategies. The award is named after Sir Humphrey Rolleston who recommended in 1929 that it should be accepted medical practice to prescribe opiates to those addicted to them. ¹³¹

Bill Zimmerman made the link between the Campaign for New Drug Policies and the legalization agenda clear on August 7th of this year. He traveled to Ohio and was a Campaign for New Drug Policies spokesperson when ballot initiative proponents filed their petitions with the state. Zimmerman is the director of Americans for Medical Rights, an organization advocating legalization of marijuana for medical uses. (Like most of the other organizations in the national legalization network, Americans for Medical Rights has the same three wealthy financial backers.) Zimmerman spoke to the National Organization for the Reform of Marijuana Laws annual conference in February 2000. During that speech, he admitted that:

"Our polling shows that only a small minority of Americans wants to change drug policy... 20% at best when you talk about legalizing drugs. So you need to educate them, help them understand that the position they're taking is wrong, ill-informed, misguided, whatever." ¹³²

Zimmerman is described as the "chief strategist behind the successful passage in one-fifth of the states so far of ballot initiatives that overturn one provision or another of the nation's drug laws." According to the National Families in Action website,

"He admonishes others who sponsor more obvious legalization initiatives, saying that given public opinion, they are not only doomed to fail, but also make his job tougher. The way 'to move people where we want them to go,' he explains, is to put forward initiatives that 'have been crafted by public opinion polling and focus group research so that we know exactly how far people are willing to go.'

Approaching legalization incrementally, he argues, works. It allows us 'to project that we win every time on this issue,' which is important he says, 'because that puts increasing pressure on the federal government (to repeal to drug laws).'"¹³³

As the National Families in Action website notes, "the state ballot initiatives sponsored by these organizations and the people who are funding them are not what they appear to be on the surface. Sponsors seem willing to manipulate – even to lie to – voters about the initiative's true intent." 134

3. The Network Connections Prove the Legalization Agenda.
If you travel to the Lindesmith/Drug Policy Alliance website, you are only a few clicks away from numerous organizations that openly espouse the legalization agenda. The Drug Policy Alliance internet site is the hub of a wheel for legalization information and networking. Network websites weave a paradigm where drugs are seen as a means to a higher social consciousness – an evolutionary jump for our species. They tout "visionary" experiences, heightened consciousness, and a new social order where drug use is the norm. A few examples illustrate the nature of the Campaign for New Drug Policies/Drug Policy Alliance network:

The Alchemind Society:
Articles detail spiritual insights gained from shamanic inebriation and the importance of drugs to shamanic journeys. The Society seeks to foster "cognitive liberty" and the right to experience the full spectrum of possible thought.

Ecstasy.org:
The site contains tips for E use and how to extend trips. Articles include "Falling in Love While on Ecstasy," "Spiritual Experiences Through Psychoactives," and "How Can I End a Long-lasting Bad Trip."

Erowid:
The site seeks to document the "complex relationship between humans and psychoactive drugs." There are detailed instructions on how to prepare and inject heroin.

Visionary Mushrooms:
The site offers color drawings and photographs of the most sought-after hallucinogenic mushrooms. Ideal geographical locations of the various mushrooms are identified. The site offers for sale refrigerated mushroom spores, but "not for cultivation purposes." There are also recipes for culturing and long-term maintenance of psilocybe cubensis strains.

Marijuana.com:
The self-described internet "answer to the drug war." The site offers detailed instructions on how to beat urine screens, and provides an analysis of commercial products used to evade drug screens.

The Drug Policy Alliance site has numerous links to various marijuana legalization sites.

Hypoism-The Disease of Addiction:
The site attacks the myths of addiction and the "60 year failure of the current addiction paradigm." They argue it is "time to remove the stigma associated with addiction." The site is also critical of "the baseless premises of Alcoholics Anonymous."

The Stanton Peele Addiction Web Site:
Another site claiming that addiction has been given a bad name. The site offers articles on "resisting 12-step coercion" and "the dangerous myth of heroin overdose."

On 8-25-02, the Drug Policy Alliance website's event postings included the Telluride Mushroom Festival "for people interested in edible, psychoactive, and poisonous wild mushrooms." Organization events also advertised a marijuana legalization debate featuring executive director Ethan Nadelmann.

4. Drug Policy Alliance eNewsletters Prove the Legalization Agenda.
The network newsletters sent by the Drug Policy Alliance clearly espouse the philosophy of the legalization movement. A recent article criticized the Justice Department while arguing for the application of "basic free market principles to drug policy." ¹³⁵ The same newsletter touted the everyday benefits of marijuana use, praising a German study that indicated THC showed promise in treating "anxiety." ¹³⁶ In April, they provided an update of the NORML annual conference and profiled a speaker who maintained "marijuana is unquestionably part of religious experience." ¹³⁷ A March newsletter provided links to a journal article critical of prohibition as an approach to drug addiction. ¹³⁸ And they offered a link to a treatise arguing for legalization as the "sensible solution to the urban drug problem." ¹³⁹

Newsletters also praise international experiments in drug legalization. They applauded the opening of 50 cannabis cafes in Britain where customers were allowed to openly smoke marijuana. ¹⁴⁰

They favorably reported on Germany's 3-year test project to establish a heroin maintenance program where addicts receive free heroin by prescription. ¹⁴¹ Early 2002 articles praised the policies in the Netherlands and Switzerland that permitted heroin-by-prescription for addicts. ¹⁴² They have favorably reported on marijuana decriminalization movements in France, Norway, and Jamaica. ¹⁴³

The Drug Policy Alliance advocated marijuana legalization as a way to resolve the budget deficit crisis in California, arguing that tax revenues will skyrocket even though marijuana use wouldn