Maureen O'Connor, chief justice of the Ohio Supreme Court, has come out swinging — and hard — against a proposed constitutional amendment that would make Ohio a haven for criminal fentanyl possession under the guise of criminal justice reform. She writes:
Issue 1 would make the possession of powdered fentanyl in amounts less than 20 grams a misdemeanor with only probation as the consequence. This means that a drug offender caught with less than 20 grams walks away with no possibility of jail time. Since the lethal dose of fentanyl is just 2 milligrams (one-thousandth of a gram), 19 grams of fentanyl is enough to kill approximately 10,000 people. So if Issue 1 passes, an offender charged with possession of 19 grams of fentanyl would automatically get probation and could only be charged with a misdemeanor. Issue 1 does this by constitutionally dictating that any drug possession conviction that is now a Felony 4 or Felony 5 would be reduced to a misdemeanor. The requirement of probation ties the hands of the judge when it comes to sentencing. The judge MUST sentence an individual to probation for these offenses under Issue 1. This is unconscionable. Drug dealers would be incentivized to distribute fentanyl in amounts less than 20 grams so those caught possessing it would avoid incarceration.
The ballot issue has become a pet project of the left — Mark Zuckerberg has donated $1 million to the effort.
"Who wouldn’t want to set up their drug distribution business in Ohio knowing that possessing 19 grams of fentanyl or lethal amounts of other drugs would result only in a first class misdemeanor with mandatory probation?" O'Connor asks.
I despise these emotion-driven ballot initiatives that reduce complicated legislative issues down to pithy slogans. There's a reason our founding fathers rejected a pure democracy. Unfortunately, many states, including Ohio, baked such mechanisms into their state constitutions. As a result, state legislatures have been forced to write laws conforming to these often ridiculous constitutional amendments. One of the worst, in my opinion, was the ballot initiative that embedded casino gambling in Ohio's constitution. Proponents, after failing to convince the legislature to legalize casinos, turned to the citizenry. After failing multiple times to convince voters to support them, they finally succeeded in an emotion-driven campaign funded by casino owners, who literally wrote the amendment, giving themselves favorable tax bennies (or so they thought... more on that below).
As a result, much to my home state's disgrace, the Ohio Constitution now looks like a real estate deed:
But the casino owners screwed up the language and Kasich had to bail them out when they threatened to bolt the state. I wrote in 2013 at Ohio Conservative Review:
The casinos wrote themselves a bad deal (in their opinion) when they crafted the amendment and wanted the governor to fix it. Construction on the casinos stopped, and a stalemate ensued.
Instead of taking the issue back to the voters in order to remedy the “bad deal” Ohioans imposed upon themselves at the ballot box, Kasich, faced with losing billions in casino tax dollars he planned to use to plug his budget holes, struck a closed-door deal with the owners, reducing their [commercial activity tax] liability and expanding gambling through video lottery terminals (VLTs) in one swift move. He signed a memorandum of understanding that included a long list of promises the state would make to keep the casino owners happy. Casino operators would pay millions more in upfront fees (violating the fees voters approved in the constitutional amendment), while sheltering a large portion of their income from the CAT. The state would expand gambling in the state and sell licences for the operation of VLTs at seven horse race tracks, six of which are controlled by casino interests.
So much for the rule of law.