Speeches

Chief Justice Maureen O'Connor
Facing Opioids: Drug Enforcement, Health Policy, and Today's Epidemic
Oct. 19, 2018

(Remarks prepared for delivery on Friday, Oct. 19, 2018, at the Ohio State University Moritz College of Law – Drinko Hall.)

Thank you, Mr. Darnell, for that introduction.

Thank you for inviting me to discuss the challenges surrounding the opioid crisis.

The themes you have asked me to address today – opioids, drug enforcement and health policy – are similar to the topics I addressed last week at the Specialized Docket Conference. Opioids, drug enforcement and health policy are at the heart of Specialized Dockets courts.

We could call it a Specialized Dockets Movement. That’s because Specialized Dockets are becoming the new face of our justice system.

We now have 245 Specialized Dockets courts in 61 of Ohio’s 88 counties. More than half of those are drug courts ... and nearly all the rest deal with drug issues borne by families, by veterans and by those with mental illness. We have four human trafficking courts as well.

Most of the specialized dockets growth has occurred in recent years ... actually, since most of you ... the final year law students …..began your first year of undergraduate work.

This transformation has occurred so quickly because the judiciary of this state sized up the problem as it developed and acted on it.

Courts aren’t the only state of Ohio institutions that have come to the aid of our citizens who are experiencing drug problems.

Our governor expanded Medicaid, Ohio now spends 1 Billion dollars in Medicaid expenditures which has made a huge difference in the fight against drug addiction.

The General Assembly enacted T-CAP ... Targeted Community Alternatives to Prison legislation. That allows for 4th and 5th degree felons to remain in their communities and receive supervision locally. Funds are diverted from DRC to the local courts on a per capita basis.

We have special programs in our state such as a multi-disciplinary Hope Partnership Project. A program in Ross County designed to address the cycle of addiction for heroin and other addictive substances. The focus includes components of prevention and education, treatment, law enforcement, volunteer, faith-based and medical. The local, state and federal agencies came together in an effort to fight the opioid epidemic ravaging Ross County. Because of the reemergence of meth, the program has branched out to include all drugs.

Law enforcement and treatment center officials are seeing a trend of drug users turning to methamphetamine out of fear of heroin's deadly consequences.

Numbers across the state and locally reflect that trend from samples sent to Ohio's Bureau of Criminal Investigation.

In 2016, the U.S. 23 Task Force reported it seized 44 grams of methamphetamine. Last year, it reported it seized 1,130 grams of meth.

The task force reported 101 total indictments in 2016 and 211 the following year.

According to the Ohio Attorney General's Office, the number of meth cases BCI has processed in recent years is trending upward. In 2015, the agency processed 2,050 methamphetamine cases. The following year, the number jumped nearly 1,000. Last year, the agency processed over 5,300 methamphetamine cases, and as of Feb. 1 this year, they've processed 912 cases.

In comparison, the number of heroin cases the BCI has processed has gone down in recent years from 6,832 in 2015 to 4,193 in 2017.

We have established a coordinated care management program with our state Medicaid colleagues that improves access to medical and behavioral care for those in family dependency courts, drug courts and juvenile drug courts.

We have a robust certification process for drug courts and all other Specialized Dockets courts so that best practices and compliance issues are observed.

Ohio is on the receiving end of $112 million through federal grants from the Department of Justice through 2021 to expand treatment capacity.

VAWA grants enable female victims of violent crimes to receive help, treatment and counseling. Ohio is in line to receive 12 million from this grant.

Yes, our courts have acted appropriately ... and swiftly and strongly.

We’ve worked from the bottom up, and from the top down.

Two years ago, the leadership and staff of the Supreme Court of Ohio convened a multi-state emergency summit meeting in Cincinnati that became an eight-state consortium called the Regional Judicial Opioid Initiative.

These eight states are working across state and county lines because drug trafficking has no boundaries. We’re sharing databases on prescription drugs, sharing best practices on helping families – including babies – battle addiction.

And each state is moving in multiple directions internally and with the other states – a giant collaboration of law enforcement, courts, legislatures, health centers, medical professionals, academics, scientists and social service workers.

It is an enormous web of help – spurred to action by public employees, non-governmental organizations, foundations and philanthropic groups.

We’ve seen results in year-by-year declines in prescription drug proliferation and abuse.

Because ‘doctor shopping’ has declined to record lows due to the mandatory prescription drug monitoring program, overdoses from prescription drugs is at a low as well.

Meanwhile ... sadly ... we’ve been reminded of the difficulty of the drug situation as users shift to illegal drugs like heroin. And then we see the return of meth in a big way in our state and imports of dangerous killer substances like fentanyl.

Drug abuse in Ohio and our nation is a moving target. Yet, we are engaged. We are committed as a judiciary, to fight this crisis.

These top-down efforts by experts wouldn’t be possible without the boots on the ground – the bottom-up work of first responders, health care workers, and our drug court judges and their staffs.

Their caring and toil produces knowledge that can be shared and enhanced.

That’s what’s happening in our 170 Ohio drug courts. Shared knowledge and understanding by judges, magistrates, treatment professionals, peer mentors, probation offices and staff is making a difference in hundreds and hundreds of lives.

These courts are producing graduates of their programs, one by one by one.

We’ve learned many things. One major take-away is that Medication-Assisted Treatment ... called M-A-T for short ... has to be part of the drug court program for the individuals we are trying to help.

This is because the effects of opiates on the addicted brain can be long-lasting and have to be addressed. This can only be accomplished through medication.

After decades of study of the biology of addiction, we know that human brains must be weaned off addictive substances. This is accomplished through supervised medication.

And ... this medication process can take a year or more ... and it must be supervised ... and, supervision must be enforced in some way. That’s because the addicted brain is not capable of ‘just saying no’ ... when it comes to making that decision to stay strong and not abuse a drug, or to give in “just this one time.”

It takes the caring and the expertise of a drug court. When I finished my address here at OSU last week, four graduates of drug courts and a human trafficking court took the stage and testified to the effectiveness of court-supervised intervention.

There are at least two avenues that don’t work. One is locking people up without treatment. The other is depriving them of court-supervised treatment.

I don’t like that term “carrot and stick,” but it is shorthand for a cause-and-effect that is working in our drug courts.

Faced with jail time or treatment ... treatment has a fair chance of winning.

To those who say government hasn’t done enough, I say, yes, we can do more and we should do more. But I also say ... let’s pay attention to the people inside and outside of government who are making a difference ... who are expanding the knowledge of what is working and what doesn’t work ... and who are helping people take back their lives.

This is a hard business. It is hard because addictive chemicals are powerful. It is hard because so many of our fellow citizens are vulnerable. It is hard because drug dealers are efficient and creative and ruthless, and because drugs are so plentiful and available.

So, what makes anyone think that something so hard can have an easy answer?

Well, apparently, a lot of Ohioans are considering voting for an easy answer to this terribly complex problem.

It’s also a wrong answer and ... worse, a catastrophic answer.

Issue 1 on the ballot right now has all the trappings of a progressive measure.

But it’s actually regressive because its passage would set back the hard work of drug courts and all the people working to solve our drug crisis.

For those of you who are law students, you are accustomed to navigating through the weeds of a legal argument to get to the truth.

And that’s exactly what’s going on with the language of this proposed constitutional amendment.

It is so flawed. If you dig deeply into it – and you should ‒ you will see how bad it really is.

It would handcuff judges in this state and they would not be able to impose jail as an incentive to keep addicts on program. The result is that they are precluded from helping people get their lives back in order.

Supporters say Issue 1 will direct $136 million to drug treatment and crime victim programs by prohibiting jail or prison time for most low-level drug possession offenders.

But there are no data to back up that promise.

In fact, there ARE solid data that reveal that this won’t happen.

Just last week, the state Office of Budget and Management came out with a report that analyzed Issue 1 from top to bottom ‒ every page, every sentence.

This is a report that is mandated to come out on all ballot issues statewide.

Proponents say hundreds of millions of dollars a year will be carved out from the Department of Rehabilitation and Corrections budget and funneled to the treatment community in Ohio.

Nothing can be further from the truth.

That’s not just my opinion.

This fiscal report lays it out.

The report reveals that the costs associated with Issue 1 will outweigh the meager money saved. That’s right, it will raise costs.

Issue 1 will raise costs on local government while failing to make savings at the state level. Ultimately, costs will be shifted to local governments, the report reveals.

How is this possible? It’s basically the old “garbage in-garbage out” cliché about data collection. If you put in bad numbers, you produce more bad numbers.

Proponents talk as if hordes of Ohioans are in jail for drug possession. The fact is that not many people are going to prison for Felony 4 and Felony 5 drug possession charges alone. Less than 15 percent of inmates are in prison for drug crimes, total ... That’s all drug crimes, trafficking F-1 to possession 5.

There were only 662 people in an Ohio prison for F4 and F5 drug possession alone as of July 2018. That number is so low because of programs such as T-CAP, which I spoke about earlier. These programs are in place to prevent low-level offenders from going to prison – and these programs are obviously working.

Finally, the Department of Rehabilitation and Correction estimates that Issue 1 will only reduce the prison population by 900 prisoners over the next four years. For that small blip, we are considering gutting our drug courts, one of the most effective tools in combating the opioid crisis.

Why do I say “gutting?”

Because Issue 1 would take away the pressure of choosing between prison and treatment.

Let me be clear.

If Issue 1 passes - there will be NO incentive for those who are addicted to get treatment.

NONE.

Issue 1 sounds good. But it’s full of what I call false hope.

For that reason, I call it “cruel.”

Issue 1 proponents are saying ... if you have a loved one in prison right now, he or she will get a 25 percent reduction in their sentence if Issue 1 passes.

The reality is ... they have to go through various programs to meet that requirement and I’m telling you the prisons do NOT have these programs.

And Issue 1 won’t establish a way to implement and pay for those resources.

So telling a family that a loved one in prison will get a reduced sentence when the prisons don’t have the resources ‒ that’s cruel to me.

When I hear proponents of Issue 1 say what we’re doing across government isn’t working, it infuriates me.

We need to do more, because the problem is so big.

But our path is working.

There must be an incentive for a user to begin treatment, and that incentive is the specter of jail time.

How do I know? Because the drug court graduates say so ... .and they point to the programs we put in place.

These recovered Ohioans say that before their court-sponsored treatment, they just wanted their next fix.

Treatment wasn’t voluntary – because today’s drugs of abuse are powerful. Overcoming their effects is so, so hard.

Because treatment is a life and death matter, Issue 1 becomes just that.

The Franklin County Coroner recently released a report detailing seven overdose deaths in 18 hours.

The coroner in Butler County came out against Issue 1 ‒ saying ‒ these are her words, not mine ‒ that the prisons will be empty but the morgues will be filled.

These are strong words. But leaders in our communities know how dangerous the situation is and how Issue 1 would make a bad situation worse.

Issue 1 allows for possession of just under 20 grams of fentanyl to be treated as a misdemeanor – an amount that could kill up to 10,000 people.

Keep in mind, two milligrams of fentanyl – that’s two one-thousandths of a gram – will kill you.

Issue 1 would put not only non-violent inmates back on the streets, but also every level of violent felon, except murder, rape, and child molestation.

It would tie the hands of judges to deal with probationers who violate no-contact orders with victims.

It would take away input from victims on inmate release.

The proponents compare substance abuse disorder, addiction, to other diseases ... We don’t put diabetics or those suffering from heart disease in jail, so why addicts?

At first you may think that’s an apt comparison ... but diabetics don’t steal or break into homes for insulin. And the drugs prescribed for heart disease or diabetes is done to help prolong your life not kill you as heroin or fentanyl will.

Putting more of these people on the street, instead of helping them in a supervised program, will not make anyone safer, least of all the addict.

Proponents of Issue 1 say any problems with Issue 1 can be fixed by statute.

No. That’s not how it works. This is a proposed constitutional amendment. It’s not a proposed statute.

You can’t roll this back. It would become a fixture in our state constitution, and a legislative road to fixing it wouldn’t exist.

It would take another constitutional amendment to amend or repeal this flawed proposal.

Other states have tried reforming the treatment of low-level felony addicts. They have downsized their crimes to misdemeanors ... but how they did it is the difference.

Only Ohio would have a constitutional amendment written in stone.

All the other states (12) use statutory changes, and they have retained in the judiciary the ability to impose incarceration when appropriate.

Proponents are wrong when they say Issue 1 is a way to deal with ‒ quote  ‒ “small amounts” ‒ of drugs. I’ve seen it reported this way in news stories. It goes way beyond addressing ‘small amounts’ of drugs.

Some letter writers and editorial writers have questioned why I, as chief justice, am out there talking about this subject. Aren’t judges supposed to be neutral?

Yes, we are sworn to be fair and impartial.

We also have a duty to become involved in dialogues on issues of law and justice.

Just so you know, on April 5, 2002 ... more than 16 years ago ... the Board of Commissioners on Grievances and Discipline issued an opinion (Opinion 2002-3).

I quote:

It is proper under Canon 2(A)(1) of the Ohio Code of Judicial Conduct for a judge to communicate to the public about a proposed constitutional amendment regarding drug treatment in lieu of incarceration, to explain the proposed amendment, to compare it to current law, and to describe its potential impact on the constitution, the law, and the operation of the courts. At all times during public communications, a judge must maintain the integrity appropriate to judicial office and abide by the high standards of speech in Canon 7.

So, there you have it. I have a duty to speak out on Issue 1 and I hope you will join me in doing so.

Many of you in this room are on social media.

Please spread the word about Issue 1 because this is a public health emergency, before it is a legal one.

We also cannot win the war against this crisis with judges having their hands tied behind their backs.

The biggest problem in this ballot measure is that supporters with big money who give big promises, without the facts to support them continue to pour money into Ohio to spread falsehoods.

But these proponents with their out-of-state cash won’t be here to deal with the repercussions of this disaster.

They don’t live here in our communities. They don’t see the devastation up close.

We do see the devastation, and the heartbreak.

Voting began last week and continues through November 6th. Please vote no and encourage your friends and family to do the same.

Frame your arguments from the position of the legal expertise you are developing ... but don’t forget the human part of this as well.

Thanks to all of you.

God Bless.

... and now I’ll take your questions.