Ohio Governor Mike DeWine recently signed a massive criminal justice reform bill into law, a testament to the work of activists proposing legislation from the Black Lives Matter Movement. However, the repeal of a law that incarcerates hundreds of people was not included in this reform package: Weapons Under Disability.
This law criminalizes possession of a firearm while charged with violent crimes and/or drug offences. Even if a defendant is found innocent of the original felony charge, they could be incarcerated for possession of an otherwise legal firearm pending trial. Weapons Under Disability denies the right to legally obtain a firearm without due process: that right is stolen as soon as a prosecutor files a charge.
Due process is the tenet of our criminal justice system. When a person is accused of a crime, they are presumed innocent until proven guilty. This presumption of innocence protects the liberty of defendants until a jury determines that liberty is a security risk – until due process is followed. But what happens when due process is not followed? What happens when this lack of constitutional respect crosses racial lines? Our prisons are growing needlessly and our communities are broken apart.
No one understood the unconstitutionality of disabled guns better than Delvonte Philpotts, a Cleveland man who retained an otherwise legal gun while under arraignment. The state dropped the underlying charges against Philpotts, but pursued an incapacitated weapons charge — a felony three that carries up to three years in prison. After Philpotts’ conviction, he appealed, claiming that Weapons Under Disability violates the Due Process Clause of the 14th Amendment and has only served to deepen racial disparities in the justice system. The court ruled against Philpotts, finding there was a government interest in enforcing the law for reasons of public safety.
Of course, at first glance, the law seems to protect us from violent offenders. In practice, however, the law is lacking. Passed in 2014, Weapons Under Disability was intended to address rising gun death rates. According to the CDC, the gun death rate in Ohio was 10 deaths per 100,000 population in 2014. Since then, gun violence in Ohio has skyrocketed: gun deaths have increased by 34% over the past 10 years, with firearm homicides nearly doubling – increasing by 43%.
In 2021, Hamilton County set a record for gun deaths. Fourteen people out of 100,000 died from gunshot wounds. Yet in that same record-breaking death year, more than 330 charges were filed under ORC 2923.13 A(3) – the code that prohibits possession of a firearm while charged – in the Hamilton County. The overwhelming majority of those charged were black, despite making up only a quarter of the county’s population. The law, clearly, has not curbed gun death rates in Hamilton County or the state, as evidenced by the rising rate of gun death despite a vigorous pursuit of the law.
Vigorous pursuit of the law has a dual impact on our community: misdirected spending to enforce a failing law and the excessive incarceration of black people in Ohio. The incarceration rate for Black Hamilton County residents is 990 per 100,000 population; conversely, the incarceration rate for white residents is 176 per 100,000 population. The black incarceration rate is 86% higher in a majority white county. Statewide, black people in Ohio make up 34% of prison populations and 45% of prison populations, while making up only 13% of the state’s population. Weapons Under Disability — a law that incarcerates the majority of black defendants — has failed to mitigate gun violence in Ohio; instead, the law is the kerosene of the wildfire of mass incarceration, burning lives, careers and families in its wake.
A law that failed to achieve its goal, instead incarcerating hundreds of — mostly black — Ohioans is a law that must be repealed. Effective gun control would consist of regulating the gun lobby, ensuring robust application processes, and minimizing accessibility to automatic weapons. What gun control shouldn’t be, however, are punitive laws that over-incarcerate people of color.
Connor Marrott is a student at the University of Notre Dame studying American Studies. His work has previously been published in the Cleveland Plain Dealer.
This article originally appeared on the Cincinnati Enquirer: Opinion: Mass incarceration disguised as gun control in Ohio