Ohio Governor Mike DeWine recently signed into law a major criminal justice reform bill, a testament to the work of activists who have proposed legislation since the Black Lives Matter movement. Not included in that reform package, however, was the repeal of a law that imprisons hundreds of people: Weapons Under Disability.
This law criminalizes the possession of a weapon while charged with violent crimes and/or drug offenses. Even if a defendant is found not guilty of the original charge, they may be imprisoned for possession of an otherwise lawful firearm pending trial. Weapons Under Disability deprives the right to legally obtain a firearm without due process: that right is stolen the moment a prosecutor files charges.
Due process is the precept of our criminal justice system. When someone is accused of a crime, he is presumed innocent until proven guilty. This presumption of innocence protects the freedom of defendants until a jury determines that freedom is a security risk – until due process has been followed. But what happens if due process is not respected? What happens when that constitutional disrespect crosses racial boundaries? Our prisons are growing needlessly and our communities are left broken.
No one understood the unconstitutionality of Weapons Under Disability better than Delvonte Philpotts, a Cleveland man who retained an otherwise legal weapon while facing charges. The state dropped the underlying charges against Philpotts, but pursued a gun under disability charge – a misdemeanor three that carries up to three years in prison. After Philpotts was convicted, he appealed, claiming that Weapons Under Disability violates the due process clause of the 14th Amendment and has only contributed to further racial disparities in the justice system. The court ruled against Philpotts, concluding that there is a government interest in enforcing the law for public safety concerns.
Of course, on the face of the law, it seems to protect us from violent offenders. In practice, however, the law falls short. Passed in 2014, Weapons Under Disability aimed to combat the rising number of gun deaths. According to the CDC, Ohio’s 2014 firearm death rate was 10 per 100,000 people. Since then, Ohio’s gun violence has skyrocketed: Gun homicides have risen 34% over the past 10 years, and gun homicides have nearly doubled—by 43%.
In 2021, Hamilton County set a record for gun deaths. Fourteen out of 100,000 people died from a bullet. Yet that same year of record-breaking deaths, more than 330 charges were filed under ORC 2923.13 A(3) — the code that prohibits possession of a firearm while indicted — in Hamilton County. The vast majority of those charged were black, despite making up only a quarter of the county’s population. It is clear that the law has not reduced gun deaths in Hamilton County or in the state, evidenced by the growing number of gun deaths despite vigorous prosecution of the law.
The law’s vigorous prosecution has a dual impact on our community: misspending to enforce a failing law and the over-incarceration of Black Ohioans. The incarceration rate of Black Hamilton County residents is 990 per 100,000 residents; conversely, the incarceration rate of white residents is 176 per 100,000 residents. The black incarceration rate is 86% higher in a predominantly white county. Statewide, Black Ohioans make up 34% of prison populations and 45% of prison populations while making up only 13% of the state’s population. Guns under disability — a law that incarcerates the majority of black defendants — has failed to reduce gun violence in Ohio; instead, the law is kerosene to the wildfire of mass incarceration, burning lives, careers and families in its wake.
A law that has failed to achieve its goal, instead imprisoning hundreds of Ohio residents—the majority of whom are black—is a law that should be repealed. Effective gun control would be regulating the gun lobby, ensuring robust application processes, and minimizing the accessibility of automatic weapons. What gun control shouldn’t be, however, are criminal laws that overly incarcerate people of color.
Connor Marrott is studying American Studies at the University of Notre Dame. His work has previously appeared in the Cleveland Plain Dealer.
This article originally appeared on Cincinnati Enquirer: Opinion: Mass incarceration is masquerading as gun control in Ohio