Why did criminal justice reform fail in Ohio?

November 13, 2018

Daniel Kington looks at the reasons for the defeat of Issue 1, a proposed constitutional amendment to reduce mass incarceration that at one point seemed likely to pass.

IN A bitter defeat for the movement against mass incarceration, Ohio voters decisively rejected a state constitutional amendment to emphasize treatment over prison for some drug crimes.

Issue 1 would have reclassified nonviolent drug possession offenses from felonies to misdemeanors (with retroactive reclassification for past offenses), ended prison sentences for technical probation violations, expanded prison rehabilitation and sentence reduction programs and redirected the cost savings from these measures to drug treatment programs.

There were problems with Issue 1, and even more with the way it was motivated by leading Ohio Democrats as a way of focusing attention on the “real criminals. The Democrats’ candidate for governor, Richard Cordray, for example, argued that Issue 1 “is not about letting criminals run free — it’s about cracking down on criminals, dealers and traffickers. This is about locking up those who are plaguing our communities and getting addicts in recovery.”

Voters cast their ballots in Ohio
Voters cast their ballots in Ohio

Despite these shortcomings, the defeat of Issue 1 — by a nearly two-to-one margin — represents a substantial loss for the movement to curb mass incarceration, challenge the racist “war on drugs” and ultimately abolish prisons.

For the 10,000 people who will remain in prison as a result of the vote — and for everyone who will be forced into prison in the future as a consequence — the failure of Issue 1 is an utter tragedy.

ALTHOUGH ISSUE 1 was defeated in a landslide, up until Election Day, there was good reason to believe that it might be successful. Issue 1 received the second highest number of signatures in the drive for ballot access of any voter initiative in Ohio’s history, suggesting both widespread support and a considerable, well-organized campaign to back that up.

Polls conducted between September 28 and October 28 showed support for the state amendment exceeding opposition by anywhere between 3 and 17 percentage points.

Perhaps most importantly in a society in which elections are generally sold to the highest bidder, the Ohio Safe and Healthy Communities Campaign, which led the campaign to support Issue 1, received about 16 times more financial contributions than its opponent group Vote No! Protect Ohio.

Yet somehow, Issue 1 lost by a wide margin. If the polling was accurate, that means that even if all undecided voters wound up voting “no,” more than 20 percent of voters who originally supported Issue 1 changed their minds in the weeks prior to the election. This obviously begs the question of what went wrong.

If the early polls were even remotely accurate, then the gut reaction of at least a plurality of voters was to support an initiative to curb mass incarceration, which means Issue 1 wasn’t simply defeated by support for mass incarceration or the ideological baggage of the “War on drugs.” Instead, the picture is likely more complex.

Opposition to Issue 1 ratcheted up dramatically in the final weeks of the campaign, after polls were released which suggested that it might succeed.

Vote No! Protect Ohio wasn’t even formed until October, and its over $1 million in contributions came exclusively in the few weeks that followed. The strategy of the campaign, which was largely comprised of prosecutors, judges and police, was built around scare tactics, misinformation and lies.

For instance, the campaign tapped into the anti-Semitic themes of Republican candidates around the country by calling repeated attention to the financial support of George Soros for passing Issue 1.

Vote No! Protect Ohio and its allies repeatedly claimed, without any evidence, that Issue 1 would make Ohio the nationwide capital of drug trafficking, and that individuals possessing enough fentanyl to kill over 10,000 people would simply receive a slap on the wrist if simple possession was reclassified as a misdemeanor.

Initially spread among prosecutors and most prominently argued by Ohio Supreme Court Chief Justice Maureen O’Connor, this statistic is a blatant lie. No one in Ohio’s history has ever been charged with simple possession for holding so much fentanyl.

Even more cynically, the campaign argued that Issue 1 would prevent those suffering from addiction from accessing needed treatment by taking away the ability of judges to wield both the “carrot” of treatment and the “stick” of prison.

It would be absurd to suggest that the threat of prison is necessary to treat almost any other form of mental illness. Adding insult to injury, of the $100 million that Issue 1 was expected to save on incarceration, 70 percent was to be allocated for evidence-based prevention and treatment resources, meaning that individuals suffering from addiction would have had far more options had Issue 1 passed.

DESPITE THESE blatant fabrications (or perhaps because of them), the No campaign received a great deal of active support from high-profile members of the criminal justice establishment, many of whom have built their careers through incarcerating drug users and who are trained to view drug use through a punitive lens.

In addition to state-level support from people like O’Connor, local prosecutors went on the offensive throughout the state, gaining easy access to the media through their positions of public authority.

In part because the media generally tails the views of so-called “experts” in an effort to seem unbiased, and in part because the financial interests that fund the media are wedded to mass incarceration, both local and statewide media outlets overwhelmingly came out against Issue 1 in the last weeks of the campaign. Balletpedia didn’t record a single instance of a news outlet in Ohio endorsing Issue 1, while it counted 10 major outlets whose editorial boards opposed it.

In a typical example of one such endorsement, the Athens News argued: “Too many smart, respected people — including many who work directly with people charged with drug crimes and/or receiving treatment — have sounded the alarm about Issue 1.”

Like the local prosecutors and judges the article implicitly cites, the endorsement fails to offer any proof of its claims, and instead condescends to its audience by suggesting that only the people who run the disastrous criminal justice system are qualified to understand the consequences of Issue 1.

Even though the opposition campaign was vastly out-fundraised, the free advertising it received from the media was likely more than enough to make up for that yawning gap.

The campaign against Issue 1 lied to people, sought to confuse them, told people that they are simply too stupid to make educated decisions about mass incarceration, and played into the most vile fear tactics and scapegoating that we are trained by our society to uncritically accept.

Although support for the war on drugs and mass incarceration may have been part of the story here, all the available evidence suggests that these tactics of disorientation are really the basis on which Issue 1 was defeated.

WHILE THE opponents of Issue 1 waged this cynical fight, Ohio Democrats offered little resistance.

A number of liberal Democrats, including Sen. Sherrod Brown and local progressive candidates like Taylor Sappington, failed to take a stance on Issue 1. Those Democrats who did support Issue 1 consistently failed to call adequate attention to the opposition’s lies and fear tactics or to the corrupt nature of the criminal justice establishment itself.

Instead, in his endorsement of Issue 1, Cordray employed the same rhetoric and blind faith in the criminal justice establishment as his opponents, arguing that “we need to be tough on crime, but we also need to be smart in how we use our limited resources to combat the opioid epidemic... Law enforcement leaders around Ohio tell me that we can’t arrest our way out of this problem, and I agree.”

This Republican-Lite strategy of conceding the overall political framework didn’t work for Cordray in his own election, and it didn’t work for Issue 1.

Opponents of mass incarceration and the war on drugs aren’t giving up. “We always knew that, win or lose, the Yes on Issue 1 campaign is the beginning, not the end,” said Dennis Willard, spokesperson for the Yes on Issue 1 campaign. “Our opponents may celebrate tonight, but tomorrow they will wake up with the same crisis on their hands, and not one step closer to real solutions.”

But we will need to build our own independent organizations in order to make more successful ideological interventions against smear-tactics used by the likes of Vote No! Protect Ohio.

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