I felt frustrated at the system and the judge. You see, it's ironic that the thief picked my home to rob, for I teach criminal law to Ohio's brightest law students. My students want to be great defenders, like those on television. Here, someone who beat the system in his prior drug arrests had again walked away from this arrest without jail time, carrying a sense that he can get away with anything. I was getting a dose of the same medicine Ohioans might get every day from a proposed new system that wants to "forgive and forget" drug crime. We are being asked to make life easier for those who abuse our society and to make prosecutors and judges less able to protect us. The ballot initiative banning prosecution of drug users is a confusing mess that deserves a solid "no" vote.

The mis-named "Ohio Drug Treatment Initiative" is Exhibit A of the "forgive and forget" style of modern justice. Read the text. Individual responsibility for one's own conduct would be replaced by a kinder, gentler system for drug users at the fringe of society, while imposing much more costly and complex burdens on the taxpayers who pay for the safety of their communities. If it passes, Ohioans will soon awaken to its costs and its collateral damage to our safe neighborhoods. But by that time it will be locked into the state constitution and virtually impossible to fix. Sadly, the positive results of today's 27 "drug courts" will be lost if the Initiative strips judges of any real power to jail the drug abusers.

We read labels in stores before buying a product that we know could be dangerous. If you seek positive change in Ohio's courts, read each page of this Initiative thoroughly before you buy THIS change with your money. And vote for it only if personal safety from crime doesn't matter to you. But when you've been the victim of a drug criminal, who has learned to beat the system and to evade real responsibility for his behavior, your attitude hardens. I'm not buying.

There are several key aspects to note in the Initiative: the hidden costs, the disruption of the court system and the net reduction in public safety. What do we as victims of drug abuser criminals get for the new money? We get the charade of a helping, caring diversion of drug users into treatment. We get a constitutional problem that seems impossible to fix once it's voted in. This paper will go into the aspects that cause problems for experts in the criminal law field; I encourage voters to read the text for themselves and apply a skeptical curiosity. The millionaires who back the Initiative have a strong viewpoint; read it and judge for yourself.

The Initiative forbids schools, day care centers, hospitals and other employer organizations from knowing the drug arrest record of a job applicant, in section H-5. It should be very relevant to the employer that the person had a series of drug arrests "sealed" and thus concealed. Only the very narrowest exception is allowed (only for police job applicants). Most Ohioans are considered for sensitive jobs involving children or large amounts of cash after a background check is done. In the case of my thief, the angry rug company owner would be in worse shape when the government must conceal drug abuse patterns, than he was in finding out about his employee's past behaviors.

The expensive administrative nightmare of "overhead cost" that this presents for taxpayer-funded county government and for state agencies is truly awesome. The new money commanded to be spent for this system gives far less funding than the red tape cost that is imposed. The administrative paperwork structures that must be in place to comply are unrealistic for many of Ohio's 88 counties. The cost of the volume of red tape involved, on a county by county basis, far exceeds the $5,700,000 of tax dollars that it commands be spent on running the system. (This is the maximum 15 percent for administration l allowed in Sect. I-8; Sect. I-4 provides tax dollars no less than $38 million for 88 counties and a state oversight mechanism). So the county general fund must be tapped to pay for the extensive apparatus needed to allocate and account for the new bureaucratic demands. Will it be libraries, or street repairs, or senior services that will be cut to provide a kinder, gentler treatment of drug abuse criminals?

The Ohio court system is not prepared to handle the huge amount of paperwork that this Initiative will impose, over and above the current delay-prone system. For example, the courts are required to handle tasks that involve reports, referrals, supervisions, etc. that cannot be done with current staffing levels and current space allocated to courts. The "hidden costs" of this paperwork and staffing will be borne at the county level with sales or property taxes; there is no federal fund to be tapped for this new expense.

The Ohio court system already has a crushing load of drug cases; the burdens of figuring out what the Initiative's subsection C means in practice will tie up the trial courts, appeals courts and the Supreme Court for years to come. In the meantime, judges who are faced with vague and poorly explained conditions are not likely to use the limited power the Initiative gives them, to efficiently dispose of the cases. A judge who makes a mistake while interpreting the provisions would be acting "unconstitutionally", because this complex Initiative is being made part of the Constitution of the State. The prospect of being sued by drug abuse criminals would even chill a courageous judge. We should let our existing 27 "drug courts" grow and not scrap the proper role of punishment in the working of the justice system.

The certainty of punishment is one of the essential aspects of criminal deterrence. Yet the Initiative (Sect. K-8) postpones any real punishments until the third drug arrest. Why let the offender have 3 strikes before even considering jail? The Initiative lets the person avoid real penalties by waiting for the third "course of treatment" or third conviction before real penalties apply. Don't we each face the consequences of our adult choices every day?

The creation of a new set of licensing and regulatory controls also adds to the confusion. For example, the federal standards for treatment in veterans' medical care systems have been in place for years; section K-2 makes all of the VA "treatment facilities" automatically eligible to take arrested drug abusers, even where the VA facility had never asked for or applied for Ohio treatment center status. Other oddities abound. This is a haphazardly constructed mess that will take years to sort out; the Constitution would have to be changed to fix the problems it creates.

Creating a separate definition of "controlled substance" that varies from current state and federal definitions of the same term introduces a new set of confusion for the courts. Confusion is the tool that defense lawyers will use for these cases-but remember that Ohio's public defender offices are deeply impacted by budget problems and staffing issues. The drug defendants from wealthier families who don't need publicly funded defenders are the ones who will benefit from the elaborate mechanisms given here. As one who teaches about defenses based on definitions, I foresee a mess.

Ohio will suddenly need a larger set of non-judge, non-police "counselors" to handle the influx of arrested drug users. Sometimes the programs use ex-offenders after release from prison to counsel the current addicts in the system. The Initiative will make these people "independent monitors" of the "treatment plan." (Sect. K-4) Our county would replace an elected judge's choice with the decisions made by an ex-con from a "Scared Straight" program. The local community elects or rejects a judge; we would have no say about the powers given to a drug counselor, a person of whatever background is available. How is one "experienced" in "addiction therapy" to be entrusted to conduct the "life skills assessment" of an arrested person? Is the status the drug therapy person receives under the Initiative really a valid basis for substituting their judgment for the judgment of the courts? Do the voters want to let the "inmates run the asylum"?

"Enforcer fatigue" is very likely to become a problem - why would a police officer take a risk to enforce the law if the complex rules of the new system are so very slanted against imposing consequences for the violator's actions? Police work carries inherent risks. Why should cops arrest and why should probation officers charge the repeat offender, if the responses are so slight that the offender will be back home before the enforcer's paperwork is completed? When "enforcer fatigue" occurs, the system breaks down into a cynicism of "why bother to arrest", and the quality of motivation and inspiration for police is irreparably harmed.

The Initiative has a real bonus for those criminals whose cases can be dragged out until July 1, 2003. Delay means their case will escape the punishment for their offenses; any cases still "pending before the court" get the benefit of the special treatment. The immediate effect on police prior to July 1 is to respond, "Why bother, if the criminal lawyer's delays of the case will simply let the offender off?" It is very likely that plea bargaining will freeze up from Nov. 6 to July 1, so that the offender can take advantage of delay in order to escape punishment.

The real financial winner from the Initiative is the for-profit drug rehab center which must be paid "at least" 85 percent of the county allocation (Sect. I-8). The noble efforts of volunteer charities to aid truly sick people will be supplanted in the scramble for the newly required payouts. These for-profit operators do not have to show accountability for their results in order to continue getting the money. The exclusions and exceptions of the Initiative put holes into the system of oversight that should be in place before tax dollars are sent to these entities.

Finally, there is no free lunch. The small amount of money allocated in this complex document will have to be supplemented with general fund tax revenues, largely from local sales and property taxes that support the Common Pleas and Municipal Court systems. The cost of implementing the new programs falls on the non-drug user; the benefit makes life easier for those who choose to inject, snort or smoke their "drug of choice". It is significant that after piling up a series of commands, the Initiative then requires $3,800,000 or one percent to be spent on further "study" (Sect. I-7) of the problems that the Initiative is supposed to be addressing. Voters should do their own "study" and reject the misnamed and expensive Drug "Treatment" Initiative. From the viewpoint of the victim, we can only lose if the voters are misled by this slick campaign.

1 Views expressed are those of the author and not those of the University of Cincinnati.

Reproduced with permission from the author