Ignoring criticisms that they weren’t going far enough, Columbus City Council used home-rule powers at their July 22, 2019 meeting to reduce penalties for low-level marijuana offenses below the state’s penalties.
For possessing less than 100 grams or having marijuana paraphernalia in the city, the penalty is a fine not exceeding $10, while state law provides for a maximum fine of $150. For possessing 100 or more grams but less than 200, the punishment is a fine not exceeding $25, whereas state law allows for penalties up to a $250 fine and 30 days in jail. Possessing 200 or more grams remains a felony.
The enactment additionally limits collateral results of having a court record by exempting those cited under the ordinances from needing to reveal the record in response to inquiries pertaining to employment, licenses or other rights or privileges. And funding is increased by $130,000 for Legal Aid attorneys to assist in sealing records.
The legislation makes Columbus the 13th Ohio municipality to reduce marijuana penalties below the state’s punishments, either through citizens’ initiatives or legislative enactments. The group mainly responsible for pushing the reforms, the Sensible Movement Coalition, says Columbus has done less than other localities and not enough to produce needed systemic change.
At two public hearings, a major reason given for pursuing the legislation is unequal enforcement of the laws. Ohio State University law professor Douglas Berman, who directs the university’s Drug Enforcement and Policy Center, testified that about 660,000 marijuana arrests occurred in the U.S. in 2017. He said national statistics show blacks being on average four times as likely as whites to be arrested for marijuana offenses, even though both groups use the substance at similar rates.
Statistics provided by the Columbus city government reveal that African Americans were almost 70 percent of defendants in the over 1,400 marijuana cases brought in municipal court since 2016. Blacks are only about 28% of the city’s population.
Chad Thompson, executive director of the Sensible Movement Coalition, told council that reducing penalties to the amounts chosen will not end racially unequal application of the laws. He said disparate enforcement continued in some cities after penalties were lowered, and it increased in Pittsburgh.
Thompson said the proven successful method for ending the racial disparities is to reduce the fines to zero, with court costs suspended. Although the Columbus City Attorney’s office advised council that this cannot legally be done, the action has been taken in 12 Ohio municipalities without legal challenge. The city attorney’s office admitted that no Ohio court has decided the specific issue.
Kyle Strickland, senior legal analyst at OSU’s Kirwan Institute for the Study of Race and Ethnicity, also testified that more than decreasing penalties is needed to end unequal enforcement. Saying Columbus criminalizes those in low-income communities for behavior considered insignificant further west or north, he asserted: “At the very least, we have to have a real conversation about why these disparities continue to exist.” But council hasn’t indicated they will have the conversation or stop the unfair enforcement.
Another reason council gave for the legislation is to reduce collateral effects of arrests. Several experts testified that marijuana arrest or conviction records can be lifelong obstacles to obtaining housing, employment, education and other aids to lifting people out of poverty.
Council is alleviating this problem by enabling people to not disclose the records and increasing their ability to seal them. But Patrick Higgins, staff attorney at the Legal Aid Society of Columbus, testified that employers and others can still sometimes find the records by searches using private data-aggregators.
Council further said they are concerned about the unfairness of some in Ohio and other states legally selling and using marijuana while others – largely minorities and the poor – are arrested and face long-term harms for possession. The new law lessens but doesn’t end this inequality in Columbus.
An issue council ignored was whether the city attorney’s office should use its prosecutorial discretion to decline to bring low-level marijuana cases, as some prosecutors elsewhere have done. For instance, the district attorney in Brooklyn, New York, did so after seeing shocking racial inequalities in arrest rates. He thereby reduced low-level marijuana prosecutions by 98% since last year.
His commonsense position is essentially that if marijuana arrests cause the problems, ending arrests ends the problems, along with allowing law enforcement to concentrate on important matters.
But council appears to be having it both ways. They can show progressives that the marijuana laws have been reformed with lower penalties and reduced collateral consequences. And they please drug-enforcement hardliners by keeping marijuana possession punishable despite unequal enforcement.
The Sensible Movement Coalition’s takeaway is that Columbus chose highly inadequate policy and displayed a failure of leadership, unlike other cities where the group has worked on the issue.