The proposal would write into the Constitution detailed provisions concerning eligibility for treatment, provisions for treatment, responsibilities of treatment professionals, discipline or sanctions for failure to cooperate with treatment, dismissal of charges and sealing or expungement of records for successful completion, responsibility of the state agency designated as the "lead agency" to implement the proposal, and funding.

The Ohio Prosecuting Attorneys Association opposes this proposal for reasons discussed herein.

This is not a constitutional issue.

The Constitution is not the place to write detailed provisions concerning criminal law and treatment programs. These are legislative issues, and should be addressed through statutes enacted by the legislature, which can be amended as required. Flexibility is lost if detailed programs are written into the Constitution, which then can only be changed by further Constitutional amendment - a difficult, cumbersome, and time-consuming process. If this is a great idea, why should it not be submitted to the legislature as are all other proposals of this kind? Do the proponents fear that what might appear superficially attractive will become a lot less so on closer examination?

Eligibility standards are too broad.

a. A person who has a previous conviction for a possession or use offense and a person who has previously been through a treatment program are both eligible. And there is no time limit on this - the previous conviction or treatment could have been very recent.

b. Even a repeat offender (with two or more convictions for a possession or use offense after the effective date of this proposal) is eligible if the court finds that treatment is in the best interest of the offender and the public.

c. A prior recent conviction for drug dealing does not disqualify the offender.

d. Nor does a prior conviction for a violent felony committed five or more years before the current offense.

e. An offender charged with a felony, including a violent felony, or drug trafficking, could qualify for treatment if the felony or trafficking charges are not part of the "same proceeding" as the possession or use offense. Consequently, felony or trafficking charges pending in federal court or in County A do not disqualify the offender for treatment for a possession or use offense in County B.

The proposal corrupts the judicial process.

a. The offender is not required to enter a plea of guilty at any time during the process. Ohio's current intervention in lieu of conviction statute requires that the offender enter a plea of guilty at the beginning. But in this proposal, if the offender is unsuccessful in treatment, the state may be called on to try the case up to 18 months after the offender entered treatment. The likelihood of successful prosecution decreases dramatically with the passage of time.

b. The offender can request and get treatment even after insisting on a trial. If the offender is going to take his chances in a trial, he should be subject to the full penalty. Here he can require the state to expend the resources of a full blown trial, be convicted, qualify for treatment, then withdraw his request and walk in 90 days or less.

c. An offender who applies for treatment, is found eligible, and then withdraws his request may be sentenced, upon conviction, only up to 90 days incarceration. This could be for an offense that would normally require up to 18 months incarceration. This permits an offender, merely by applying for treatment, to effectively change the penalty for the offense. He ties the hands of the court and gets the benefit of a much lower sentence even though the offender has no interest whatever in treatment.

d. Even if the court denies a request for treatment of a repeat offender who is eligible, the offender faces a maximum sentence of only 90 days. And remember - this is a case in which the court has found that treatment is not in the best interest of the offender and the public.

Sanctions are weak.

Sanctions for drug-related violations of the treatment plan conditions are weak, depriving the court of the disciplinary tools that it needs and removing much of the incentive for the offender to successfully complete the program.

a. For example, for a "severe" (undefined) drug-related violation, or multiple drug-related violations, the court may not remove the offender from treatment unless the court finds not only that this conduct constitutes a "serious disruption", but in addition, that the offender poses a danger to the safety of others. For the second "serious disruption" based on a "severe" drug-related violation, or multiple drug-related violations, the court still is without authority to remove the offender from treatment unless the court finds, by clear and convincing evidence, that the offender poses a danger to the safety of others or is unamenable to treatment. The court may remove the offender from treatment for a "serious disruption" based on a "severe" drug-related violation, or multiple drug-related violations, without any further findings only on the third or subsequent "serious disruption".

b. The court may dismiss the proceedings and terminate the treatment, without any sanction whatever, even if the offender fails to successfully complete the treatment plan. In fact, as long as the offender does not commit a new offense, does not commit at least three "serious disruptions", is not a threat to others, is not found unamenable to treatment, and does not violate another condition of the treatment plan, there is no sanction at all for failure to successfully complete the treatment plan.

This entire process is tailor-made for those who have no qualms about taking advantage of the system for their own ends, and who have no interest in treatment or reformation. Why not apply for treatment if you can be found eligible, then withdraw your request, and take the 90 days for what should be a sentence of up to 18 months? Or apply for treatment, go through the motions, and after 18 months, at most, of inconvenience, but no incarceration, you're done, the charges are dismissed, and your record is expunged.

The proposal is expensive and wasteful.

Providing treatment is an expensive proposition. If this is adopted, the state will be required to spend enormous sums to provide mandatory treatment to a great many people who have no interest. This is a waste of resources that could be much more profitably used elsewhere.

Current law provides for treatment.

Our current statutes provide for treatment under our sentencing statutes and our intervention in lieu of conviction statute. Our treatment in lieu of conviction statute also explicitly provides for treatment for alcohol abusers as well as drug abusers, while this proposal deals only with drugs. The main differences are that current law allows the courts greater discretion to decide who gets treatment, and perhaps most importantly, it gives the courts more effective tools to enforce compliance. Drug court judges point out that the "carrot" of having the charges dismissed after successful completion of treatment is useless without the "stick" of a lengthy prison term for failure.

This initiative will also undermine the existing drug courts, which are in place in several counties. These courts have been a great success, and are widely used where they exist.

Conclusion.

The Ohio Prosecuting Attorneys Association supports treatment for those who are truly drug or alcohol dependent, and who could benefit from treatment, provided that they are legitimately interested in self-help and will cooperate with a treatment plan. But we oppose this proposal because it is wide open to abuse, will make a mockery of the judicial process, and will misdirect valuable resources to mandated "treatment" that in many cases will only be a ruse to avoid existing criminal penalties.

Though this concept can be made to look attractive on first consideration, it is unnecessary, wasteful, and counterproductive. Our current statutes provide for treatment in appropriate cases and have worked well. It would be a mistake to write this into the Constitution, to take the legislature out of the process, and to tie the hands of our courts in dealing with this important issue.

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