State Auditor and candidate for Attorney General, Dave Yost

Yost, FreedomWorks Clash over TCAP Gap

by Carter Braxton


The most appropriate word to describe Ohio State Auditor Dave Yost’s conservative credentials would be “impeccable.”

That’s why the recent dust-up between Auditor Yost and the Washington, DC-based libertarian/conservative advocacy group FreedomWorks is particularly puzzling.  

Especially since the bone of contention over conservative bona fides seems to be Yost’s desire to make sure that heroin dealers can be sentenced to prison time.

“I’m talking about heroin dealers, and I’m getting pushback from Freedom Works, saying ‘Prison is no place for addicts, we need to stop criminalizing addiction, we’ve got too many people in prison,’” said Yost in a recent interview with 3rd Rail Politics.  “All of which is really kind-of true, but the problem is that they’re settling on a principle of ‘we’ve got to have fewer people in prison,’ rather than asking the proper public-policy question, which is ‘Which people ought to be in prison?’”   

The Tea-Party-affiliated FreedomWorks takes issue with Auditor Yost’s opposition to the Targeted Community Alternatives to Prison (or “TCAP”) provision of the budget bill currently under debate in the Ohio Senate.  The basic premise underlying TCAP is sound.  “I actually think there’s a kernel of a good idea in this program,” Yost said during his interview with 3rd Rail.  “I’ve said that all along.”

The notion is to take relatively low-level, nonviolent offenders out of the costly, overcrowded prison system, and, instead, have them punished via local sanctions—which generally means probation and/or short stints in a county jail.  

The initial estimated savings created by TCAP totaled approximately $20 million per year.  However, alterations to TCAP from its original form have dropped that number significantly.  “The real number is going to be way less than $20 million,” Yost said.  “In fact, from the budget standpoint, the Legislative Services Commission wouldn’t even score this for funding impact.  I’m very skeptical it will produce any savings.”

TCAP not only imperils taxpayer savings, but, more importantly, it imperils their safety as well. 

TCAP contains an unusual wrinkle that would fundamentally alter sentencing law for certain types of crime in Ohio.  The alteration creates a category of non-violent, non-sexual, fifth-degree felonies for which a judge would be prohibited from sentencing an offender to prison.  What’s more, the proposed change would still bar sentencing the offender to prison, even if the offender repeatedly fails to meet the terms of his non-prison sanctions.

“My problem is that we’re just taking a whole basket of offenses and saying ‘OK, they’re non-violent, non-sexual offenses, so, any [fifth-degree felon in this category] doesn’t go to prison,” Yost noted.  He explained that this broad approach creates a problem rife with unintended, negative consequences.

Specifically, the “gap” in TCAP could include myriad offenses for which prison time would be an appropriate sentence.  For example, a drunk driver who seriously injures his own child in a car accident, or someone committing identity theft or forgery for people living in this country illegally.

Another, particularly problematic example (and the origin of the Yost / FreedomWorks clash) is that of a heroin dealer trafficking in small amounts of the drug.  That’s one of the scenarios that deeply concerns Yost, a former prosecutor. 

“Whether somebody goes to prison or not should be measured on harm to the community,” Yost said.  “And, I’m sorry, but a heroin dealer, in my opinion, needs prison time.”

Yost elaborated on this point, saying that “We need to take [that heroin dealer] off the street, so that he can’t supply any more heroin.  Will other people do it?  You bet.  But this worked [with crack], along with some other things in a multifaceted approach.  Crack is not the problem it was 20 years ago.  Why is that?  Because you take enough of these folks off the street, you make it dangerous, expensive, and hard-to-get—you have fewer people doing it.”

These street-level dealers are also often the means by which law enforcement can go after bigger players in the drug operation.  Without the leverage of prison time, disrupting this type of criminal enterprise becomes much more difficult, which can seriously damage efforts to fight the opioid epidemic in Ohio.

Auditor Yost notes that this consequence is the opposite of what legislators intended.  “I haven’t talked to a single legislator who, when I said, ‘Do you realize that TCAP is going to make it impossible for a judge to put a street-level heroin dealer in prison,’ their jaw didn’t drop.”

Yost says that there’s actually a fairly simple fix that would solve this problem, while also achieving the goal of reducing the prison population.

“Simple addicts—people who weren’t selling it, but were just using it—I don’t know why we would send those people to a state prison,” Yost explained.  He said that perhaps a better option would be to sentence them to a mandatory detox facility, followed by probation once their treatment was complete.  

Yost noted that an astounding 46.3 percent of all non-violent, non-sexual fifth-degree felony offenders currently in prison were there for simple possession of controlled substances like heroin, cocaine, or illegally-obtained prescription drugs.  

“State prison?  That’s supposed to be for the biggest and the baddest, and the harm to society for simple addicts just isn’t there.”

That position makes Freedom Works’ recent opposition to Yost all the more confusing.  

“[Freedom Works] is for anything that puts people out on the street who aren’t murders and rapists,” Yost added.  “But there are people who are not murders and rapists who still deserve to be in prison.”

For now, Ohio faces the very real possibility that its judges will be barred by law from sending certain felons to prison—even if those felons peddle hard drugs.