Here’s all you need to know about the important changes proposed in Ohio’s massive criminal-justice reform bill

COLUMBUS—When Ohio lawmakers passed a massive, 1,000-page-plus criminal-justice reform bill last week, much attention was paid to the part of it that would toughen the state’s penalties for distracted driving.

But Senate Bill 288, currently headed to Gov. Mike DeWine, would change a lot more than that. The legislation, among many other things, would specify that arrests for marijuana paraphernalia won’t appear on offenders’ criminal records, allow more people to seal or expunge their criminal records, make it easier for the state’s prisons agency to release inmates, set up rules for releasing inmates early because of public-health emergencies, and reduce underage drinking penalties, among many other provisions.

Each one of those proposals, introduced by itself, would garner headlines. But when they’re put together in a massive bill like this, it’s easy for some important and interesting reforms to fly under the radar.

Here, then, is a deep dive into what SB288 would do if it’s signed into law. And yes, we’ll recap the distracted-driving changes, too.

Sealing and expungement

Two of the most important parts of SB288 would, if signed into law, expand when people convicted of crimes can seek to have their criminal records sealed — in other words, kept private with limited exceptions – or expunged, meaning their record is destroyed altogether.

Proponents argue that sealing and expunging would help address widespread problems with former inmates getting housing, being offered a job, or securing a loan because of their criminal record.

Under the bill, people convicted of multiple low- to mid-level crimes could apply to have their records sealed, rather than just people convicted of one offense, as current law states.

Right now, people convicted of one third-degree felony in Ohio (except for a public corruption offense) can apply to have their records sealed three years after they’re discharged, while those who committed a lower-level felony or misdemeanor can apply after one year. If SB288 is signed, people convicted of two third-degree felonies or any number of fourth- or fifth-degree felonies or misdemeanors would also be allowed to seek that their records be sealed.

Registered sex offenders could apply to have their records sealed starting five years after a court rules they no longer have to register, while those convicted of a minor misdemeanor could file a record-sealing request six months after they’re discharged.

SB288 also streamlines what crimes can’t be sealed. Ohio would continue to not allow people to seal convictions for any first- or second-degree felonies, as well as violent felonies, sexual offenses, domestic violence or violations of domestic-protection orders, most crimes in which the victim was younger than 13 years old, and traffic offenses.

However, the bill would repeal parts of Ohio law not allowing any sealing of convictions involving mandatory prison sentences, some instances of public indecency when the victim is a minor, or displaying sexually oriented material to minors.

Supporters of the change say Ohio’s current record-sealing law is so complex that inmates can’t understand it without hiring an attorney.

SB288 would allow the same people qualified to ask for record sealing to also request expungement.

The bill would allow applications for expungement starting six months after people convicted of minor misdemeanors are discharged and one year after people found guilty of other misdemeanors are discharged.

People convicted of felonies could apply for expungement starting 10 years after they’re permitted to ask for their records to be sealed. That would mean those convicted of fourth- or fifth-degree felonies would be able to apply 11 years after their conviction, while third-degree felony offenders could apply after 13 years.

Erase marijuana paraphernalia convictions

Right now in Ohio, being caught with any marijuana paraphernalia is a minor misdemeanor, punishable by a fine of up to $150.

SB288, if passed, wouldn’t legalize bowls or bongs. But it would state that any arrest or conviction for possession of such devices wouldn’t appear on an Ohioan’s criminal record and need not be reported by the person when applying for a job or professional license.

The bill would also repeal a law allowing a court to slap a 5-year driver’s license suspension on anyone convicted of possessing marijuana paraphernalia unless the offender was also convicted of an OVI offense from the same incident. And it would remove marijuana paraphernalia possession from the list of offenses that disqualify people from serving in a number of jobs, including with the state’s Medicaid program and the long-term-care and direct-care industries.

Zach Eckles of the Ohio Poverty Law Center said in written legislative testimony earlier this month that these proposals are “important steps in getting more otherwise qualified Ohioans back to work.”

Make it easier to release inmates

Under SB288, the Department of Rehabilitation and Correction, the state’s prison agency, would be given more power to decide when inmates should be granted an early release.

Since 2011, state prison officials have had the power to petition a court for inmates who meet a list of criteria to be released after they serve 80% of their sentence. What SB288 would do is create a presumption that the DRC’s petition for release will be granted by a court unless the prosecutor convinces the judge that the offender should remain in prison.

If a court doesn’t enter a ruling on a DRC release recommendation within 10 days, SB288 would require the court to release the inmate.

SB288 would also narrow judges’ ability to “veto” the DRC’s decision to place an inmate on “transitional control,” which means he or she serves the final 180 days of his or her sentence in a halfway house instead of in prison.

Right now, Ohio law allows a judicial veto only in cases where the inmate is serving a sentence of two years or less. SB288 would only allow such vetoes for inmates who were sentenced to one year or less.

Supporters say prison officials who regularly monitor and work with inmates are in a better position to tell when someone is a good candidate for release than sentencing courts.

“SB288 will help ensure the right people are in prison for the right amount of time,” said Niki Clum, legislative policy director for the Office of the Ohio Public Defender, during submitted legislative testimony earlier this month.

Prosecutors, though, have criticized these proposals, saying they would allow unelected bureaucrats to override the sentences handed down by local courts.

“Justice, public safety, and crime are not solved by having judges tell lies to victims in court regarding the sentence their attacker will serve while quietly shuffling the inmate out of the back door of the prison,” John Litle, an assistant prosecuting attorney in Muskingum County, said in submitted testimony to state lawmakers last March regarding the transitional control proposal.

Emergency inmate release

SB288 would set up a process by which inmates can ask a judge for early release when the governor of Ohio declares a state of emergency due to a pandemic or other public health crisis.

As COVID-19 spread rapidly through many Ohio prisons in the spring of 2020, defense attorneys filed more than 1,400 requests for judges to grant inmates early release, but only a small number were granted, according to legislative testimony from Clum, of the Office of the Ohio Public Defender, who submitted testimony supporting the idea.

“A prison sentence is not meant to be a death sentence,” Clum said, noting that 139 inmates and 17 prison staffers died from coronavirus in Ohio.

Louis Tobin of the Ohio Prosecuting Attorneys Association, though, criticized the proposal, saying it presents legal, practical, and public safety concerns.

“From a public safety standpoint and victim standpoint, it is simply not a good idea to throw open the prison doors and throw out the rule of law simply because we are in a state of emergency,” he said.

Earned days of credit

Right now, Ohio inmates can receive time off of their sentences if they have a prison job or participate in educational, job training, or drug treatment programs. Current law, however, states the amount of time inmates can shave off their sentences can’t be more than 8% of their prison terms. SB288, if passed, would raise this limit to 15% of an inmate’s sentence.

At the request of state prison officials, lawmakers specified this change wouldn’t take effect until a year after the bill becomes law.

Gary Daniels of the American Civil Liberties Union of Ohio praised the measure, telling lawmakers in submitted testimony last March that Ohio “may be the very stingiest state” in the U.S. when it comes to giving out earned credit. “Such a change in Ohio is long overdue,” he said.

Tobin of the Ohio Prosecuting Attorneys Association disagreed, saying in his own submitted testimony that earned credit “chip(s) away at the idea of truthful sentencing” and has no requirement to show inmates are actually being rehabilitated.

“Simply put, the state is letting people out of prison sooner and sooner, as a means of controlling prison population, and with public safety as an afterthought,” Tobin said.

Good Samaritan law

Existing Ohio law states that people who seek medical assistance for an overdose – either on their own behalf or for someone else – are provided immunity from arrest or prosecution for minor drug possession. SB288 would extend that immunity to include possession or use of drug paraphernalia as well, so long as the person receiving that legal protection receives a referral for addiction treatment within 30 days.

Clum argued to lawmakers that such a measure would help save lives in Ohio, which has ranked among the top five states in annual drug overdose deaths for years. “The fear of getting arrested will prevent them from calling, and people will die,” she said in testimony.

But Tobin argued that in prosecutors’ experience, most addicts don’t seek treatment as the existing law requires. “Until we find a better way to ensure that those who experience overdoses are connected to treatment and supervised in that treatment, the good Samaritan law should not be expanded,” he testified.

Tenth Amendment Center

A last-minute amendment added by the Ohio House to the legislation would create the Tenth Amendment Center within the office of the Ohio solicitor general – the state’s top litigator. The center’s job would be to actively monitor federal executive orders, as well as statutes and regulations, for potential abuse or overreach and send its findings to the solicitor general, who then advises Attorney General Dave Yost for possible action.

The Tenth Amendment to the U.S. Constitution, a favorite of small-government conservatives, states that powers that the U.S. Constitution doesn’t delegate to the federal government or ban states from using “are reserved to the states respectively, or to the people.”

In recent years, Yost, a Columbus Republican, has launched or joined a number of lawsuits contesting federal actions, including President Joe Biden’s coronavirus vaccine mandate and federal mask mandate on public transportation, proposed U.S. Department of Education rules extending anti-discrimination rules to cover sexual orientation and gender identity, and allowing Ohio to use federal coronavirus aid for tax cuts.

“The principle of federalism – the idea that power is shared among multiple levels of government instead of concentrated into a single level – is indelibly etched into the foundation of our nation through the Tenth Amendment,” Yost said in a statement. The AG thanked the two GOP lawmakers behind the amendment — state Reps. Jeff LaRe of Fairfield County and Adam Bird of Clermont County.

Underage drinking penalties reduced

Under SB288, people younger than 21 years old caught drinking beer or liquor would be charged with a third-degree misdemeanor, rather than a first-degree misdemeanor under current law. That would reduce the maximum punishment from six months in jail and a $1,000 fine to 60 days behind bars and a $500 fine.

In addition, young people found guilty of operating a vehicle or vessel after underage alcohol consumption would no longer face tougher penalties – such as added jail time or a longer driver’s license suspension — if they’re subsequently convicted of the same crime, an OVI, aggravated vehicular homicide, or operating a watercraft under the influence, among other things. It would also no longer require an additional six months in jail for anyone who operates a vehicle after driving underage if they’ve been found guilty of five or more equivalent offenses.

Distracted driving

Ohio already bans texting while driving, but SB288 would go further by making it illegal for drivers to hold their phones or press buttons or screens. Offenders would be charged with an unclassified misdemeanor, with penalties as high as a $1,000 fine and 500 hours of community service.

The bill would also allow law enforcement to pull drivers over solely for spotting a phone-related violation. Right now, officers in Ohio can only cite drivers for distracted driving after pulling them over for another offense.

Drivers would still be allowed to hold a phone to their ear for a call, use a phone while parked or stopped at a traffic light, hold a conversation on speakerphone, or to use a phone to navigate, among other exceptions.

Reporting warrants to national databases

The legislation would require warrants issued for more than 30 high-level crimes be entered by Ohio law-enforcement officials into national databases within 48 hours.

DeWine said in 2019 that only a small fraction of Ohio warrants showed up in national databases, though that number has improved since then through voluntary measures.

The governor initially proposed the idea in 2019 after Dayton residents at a vigil for victims of a mass shooting shouted at him to “do something” about gun violence.

DeWine, a Greene County Republican, said at the time that because Ohio doesn’t require local law-enforcement to report warrants or local courts report civil protection orders, gun dealers often aren’t notified when they conduct a background check that they shouldn’t sell firearms to people who aren’t allowed to buy them.

New anti-strangulation law

SB288 would create the new offense of “strangulation,” which would range from a fifth-degree felony to a second-degree felony.

Domestic-abuse advocates have worked for years to pass such a law, pointing to research indicating that victims who are strangled by their partner are more than seven times as likely to end up being murdered by their abuser. A 2010 national survey by the National Center for Injury Prevention and Control found that 9.7% of Americans questioned said that, at some point in their life, a partner had tried to choke or suffocate them.

They also note that Ohio is the only state that hasn’t made strangulation a felony, which results in attackers being charged with a misdemeanor instead.

Fertility clinic fraud

Another last-minute amendment to SB288 would make it a crime in Ohio for health providers to use their own sperm in fertility treatments without the patient’s knowledge or consent. The proposal comes after a recent documentary explored the story of a doctor at an Indiana fertility clinic who used his sperm to impregnate dozens of unsuspecting women.

The bill would create the offense of “fraudulent assisted reproduction,” a third-degree felony, punishable by up to three years in prison and a $10,000 fine. Offenders could be charged with a second-degree felony – up to 8 years behind bars and a $15,000 maximum fine — if there are multiple violations.

Vehicular homicide

SB288 would require a minimum five-year prison sentence for anyone convicted of “aggravated vehicular homicide” in cases where the victim is a firefighter or an emergency medical worker. Ohio law already has such a requirement in such cases where the victim is a police officer or Bureau of Criminal Investigation investigator.

Two Northeast Ohio House members – Republican state Rep. Tom Patton of Strongsville and Democratic state Rep. Bride Rose Sweeney of Cleveland – proposed the measure earlier this month in response to the death of Cleveland firefighter Johnny Tetrick, who was killed during a hit-and-run along Interstate 90 last month. Authorities later arrested 40-year-old Leander Bissell, whom they said they found drunk, and charged him with aggravated vehicular homicide and murder, among other charges.

Under current Ohio law, anyone convicted of aggravated vehicular homicide while under the influence faces a mandatory prison term of somewhere between two and eight years, as well as a lifetime driver’s license suspension.

Decriminalize fentanyl test strips

Fentanyl test strips are currently classified by Ohio law as “drug paraphernalia,” and people found to possess them can face up to 30 days in jail. The argument against legalizing them is that the strips can help drug users look for fentanyl, which was involved in 81% of Ohio overdose deaths in 2020, according to the Ohio Department of Health.

Fentanyl is often present in drugs without users’ knowledge; supporters of decriminalizing test strips argue it will help reduce fatal overdoses in the state. Late last month, the House passed a bill to decriminalize the strips, but it had gone nowhere in the Senate.

Disrupting a religious service

The legislation also would increase the penalty for disrupting a religious service from a fourth-degree misdemeanor to a first-degree misdemeanor. That would raise the maximum penalty for such a crime from 30 days in jail and a $250 fine to a year behind bars and a $1,000 fine.

Like the distracted-driving, fentanyl test strips, and vehicular homicide provisions, the House previously passed a separate bill to toughen the penalty for interrupting religious ceremonies, but it stalled in the Senate.

The co-sponsors of that earlier bill pointed to several instances when religious events were disrupted, including when pro-abortion rights activists marched through a “Respect Life Mass” at a downtown Columbus cathedral last year.

Repeat OVI offenders

The legislation seeks to eliminate a quirk in Ohio law that, in certain circumstances, leads repeat OVI offenders to serve less prison time for an OVI offense than they did for a previous offense.

Here’s why: Current Ohio law requires mandatory prison terms for people convicted of five or more OVI-related offenses in a 20-year period. But as time passes, OVI convictions that happened two decades ago fall out of that 20-year window.

So, if someone was convicted of six OVIs between 1996 and 2015, they would face additional prison time for the 2015 conviction. But if the person got a seventh OVI in 2022, and he or she had two OVI convictions prior to 2002, those two would no longer count toward increased prison time — meaning the offender would get a comparatively lighter sentence.

SB288 would abolish the 20-year rule and impose mandatory prison sentences on all repeat OVI offenders, regardless of when their earlier crimes took place.

Ban driving with ‘harmful intoxicants’

Ohio’s OVI law would expand to prohibit driving under the influence of “harmful intoxicants.” Ohio law already includes a lengthy list of substances deemed to be “harmful intoxicants” when inhaled, including gasoline, fingernail polish remover, nitrous oxide, and 1,4-Butanediol, an industrial chemical used as a recreational drug.

People with a commercial driver’s license also couldn’t drive under the influence of fumes from such products.

Coroner public records

Right now, Ohio law states that suicide notes, photographs of a body taken or ordered by a county coroner, and coroners’ preliminary autopsy and investigative notes and findings are considered confidential. But state law also says they may be viewed by journalist on request.

SB288 would prohibit journalists from being given access to these documents if they are deemed to be “confidential law enforcement investigatory records.”

Speedy trial

This provision would give prosecutors more time to start proceedings against a defendant. Ohio law currently states that trials of people charged with a felony must start within 270 days after they’ve been charged or be released without facing any further criminal proceedings. If SB288 becomes law, the defendant would still be freed after 270 days if they’re in jail, but the prosecuting attorney would be given 14 additional days after the 270-day deadline to prosecute the defendant.

Proponents of the measure say the consequence of missing the 270-day deadline – not allowing any further prosecution of the defendant, regardless of the case against him or her – is greatly out of proportion with the infraction.

Critics say defendants don’t deserve to spend more time behind bars than they already are.

Prison internet access

The legislation would restrict prisoners in a county or municipal jail from being able to access the internet except for a purpose approved by jail authorities. Jail officers also couldn’t provide such access. Under current law, prisoners in county and municipal jails can only access the internet for “participating in an approved educational program with direct supervision that requires the use of the internet for training or research purposes.” Violators can be charged with “improper internet use,” a first-degree misdemeanor.

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