'Where Do We Go From Here?' OSU center looks at criminal justice reform in Ohio

Ohio State's Drug Enforcement and Policy Center hosts a virtual panel discussion exploring issues related to drug policy and criminal justice reform

Joel Oliphint
Columbus Alive
Hands of prisoner seen through bars of cell

When Douglas Berman speaks about the lingering effects of the United States’ decades-long war on drugs, which has led to stricter prison sentences for drug-affiliated crimes (among many other outcomes), he likens it to the morning after a late night of drinking.  

“We have a tough-on-crime hangover,” said Berman, director of the Drug Enforcement and Policy Center (DEPC) at Ohio State. “We kept using prison and using toughness as our way of approaching a range of problems for a couple of decades. And in some sense, our friends at the party — meaning the voters — were like, ‘Yeah! Drink some more! Go for it!’ And then we wake up the next morning, and it's like, ‘Oh, I don't feel so good.’ And everybody else is sort of like that, too: ‘I guess we ought to not drink so much.’” 

In that way, the country is in the midst of a sea change when it comes to the war on drugs, particularly in regards to penalties for offenders. Some politicians have begun to realize their constituents won’t vote them out if they “give a little bit of a break to the drug user who maybe was doing some dealing, because everyone understands prison hasn't been working for those people,” Berman said. “There’s a broader societal understanding that we shouldn't be tough on crime for everything, and that we need to be more thoughtful in the way we approach these problems.” 

But as anyone who ever lived in a dorm knows, one hangover isn’t usually enough to prevent another Saturday morning headache. “The next problem comes down the pike, whether it's the opiate epidemic or mortgage fraud, and we still go back to the well and drink a little bit more, because that still is the approach we take to any problem in the community,” Berman said. “We do think the criminal justice system has an important role to play, but how we balance that it is so persistently challenging.” 

That’s part of the reason Berman, who has studied criminal justice reform for more than two decades at Ohio State, helped launch the DEPC in late 2017.

“There really isn't much sustained, focused, objective research about the relationship between the war on drugs and broader criminal justice issues,” said Berman, who was partly motivated by the marijuana reform movement, which has led to legalization in some states and medical marijuana reform in Ohio. “I felt that there was a problematic failure to follow up on how [marijuana reform] was changing the work of criminal justice institutions. … Not only are we seeing a move away from criminalization; we're seeing a move towards legalization and commercialization, and there are lots of people who are justifiably worried that … commercialization could create its own set of problems for the community.” 

In a hyper-polarized political climate, with red and blue shouting matches over drug policy and criminal justice reform, Berman argues that a university is the perfect place to drill deeper into these issues. “We don't have an agenda other than to develop information and distribute that in as thoughtful a way as we can,” Berman said. “Our mission is to advance knowledge.”  

Last week, the DEPC launched a resource page on drug sentencing reform in Ohio, with visualizations and links to commentaries and current research. And on Wednesday, Feb. 24, at 2 p.m., the center is also hosting a virtual panel discussion, “Where Do We Go From Here? Criminal Justice Reform in Ohio,” moderated by DEPC’s Berman and Alex Fraga with panelists from the Ohio Criminal Sentencing Commission, the ACLU of Ohio, the Buckeye Institute and the Kirwan Institute.  

The panelists will speak specifically about Ohio, which, according to the center, has the 12th-highest incarceration rate in the country and one of the highest rates of overdose deaths. In 2018, Ohio voters shot down Issue 1, a bold constitutional amendment ballot initiative that sought to reclassify as misdemeanors certain offenses related to drug possession and use, among other aims. Ohio lawmakers perceived the dramatic failure of Issue 1 as a message from voters, Berman said: “We don’t want any sort of radical change.” 

As a result, future efforts in the state legislature have taken a more moderate approach. In 2020, Senate Bill 3, a bipartisan effort that aimed to reclassify some drug possession felonies as misdemeanors, stalled in the Senate, but another criminal justice bill, House Bill 1, passed. “Certain people will say, ‘That's plenty. Let's see how that plays out for a couple of years, and then we can go back to the table after we study what we've already done.’ Other folks will say more needs to be done,” Berman said. 

Regardless of the legislative efforts, equity will continue to be an issue. “I don't care which approach you adopt, but be aware that, historically, we've always unequally applied that approach,” Berman said. “Whether it's a criminal justice approach or a public health approach, minorities and people of color have gotten the short end of whatever approach is taken.” 

Statewide approaches to reform also run into cultural challenges. "In more urban areas, judges in Ohio have been more inclined to alternatives to incarceration for lower-level offenders, especially drug offenders, whereas in more rural areas, they're still relying on prison and they're still using tougher sanctions. It’s a function of context,” said Berman, explaining that, in an urban area with more violent crime, a person caught dealing drugs to their friends is more likely to be looked at as a lower-level offender. “In a rural community, where there’s less serious crime, that person seems like the biggest threat to the community, so rural judges might be more inclined to say, ‘That's the kind of person I need to send to prison rather than put back into our community.’” 

COVID-19 has further complicated the incarceration issue. In Ohio, Berman said, prison officials have repeatedly said the state’s prison system tops out at 50,000 inmates. Anything over that, and Ohio will need another prison, or legislators will have to find ways to keep the prison population down. Since 2016, according to the center’s visualization, those numbers have gone done, with a significant drop in 2019. COVID-19 also prompted a precipitous, unanticipated decrease in the prison population. 

“A huge part of what has been driving the push for reform over the last decade is, ‘Hey, we're tapped out at 50,000 prisoners. We can't afford any more. We can't house anymore. We need to come up with tools to drive down our prison population.’ Well, COVID did that. Not perfectly, and maybe not thoughtfully. But now we're at 45,000,” Berman said. “I think that makes it harder for advocates for reform to say, ‘We desperately need more reform,’ though they may say, ‘We need to make sure we lock in these reforms.’” 

Lately, though, the reform conversation has brought more conservative voices into the fold, particularly as more and more data show that the criminal justice system isn’t cost-effective at dealing with drug problems. Marrying that conservative “bean counter” approach with the justice-first approach of progressive groups could lead to more bipartisan proposals.  

Still, this is Ohio — not exactly a state known for its cutting-edge approaches to drug policy and criminal justice reform. "We're always the 26th state to try something, so understanding the culture of Ohio and Ohio's approach to these issues is another part of this,” Berman said. “Hopefully our center can enhance the conversation and enable a deeper understanding of these issues and better policy going forward.”