Ohio’s most recent attempt to improve its criminal justice system started with lawmakers gathering a “wish list.”

Shortly after Sen. Nathan Manning was named chair of the Senate Judiciary Committee in 2021, he received marching orders from Senate President Matt Huffman to pass a good omnibus criminal justice bill.

From there, Manning and others met with multiple well-known stakeholders in the criminal justice policy realm to better understand what strategies could improve the justice system — be they new ideas, or ideas from older pieces of legislation that failed to pass.

“We didn’t really have an agenda except for the fact that we really wanted, at least to a certain extent, to focus on collateral sanctions [hurting] people who have turned their lives around,” he says.

“We want to help them become productive members of society and not have this necessarily hanging over their head and limit where they can get jobs.”

All of those talks eventually materialized into SB 288, a measure passed in December during Ohio’s lame-duck session. Although SB 288 incorporated several last-minute amendments, the core of the bill represented years of negotiations and work on its myriad provisions to reduce recidivism by easing the transition for people leaving prison.

Among the goals: increase opportunities for incarcerated individuals to earn time off from their sentences and ease the process for sealing or expunging criminal records.

Previously, the amount of time that an incarcerated offender could take off their sentence in exchange for obtaining earned credits could not exceed a length of days equivalent to 8 percent of their total sentence.

The ceiling is now 15 percent.

Credits can still be earned by participating in educational programs, vocational training and substance abuse therapy, as well as by securing a high school equivalency certificate.

“Ohio was either one of the lowest or possibly the lowest [in the country] in earned credit at 8 percent,” Manning says.

The law also allows more than one eligible felony criminal record to be sealed at a time and caps filing fees at $50. Fees are waived altogether if the applicant provides a poverty affidavit.

For those seeking to have their records expunged, the law creates an application process such as the one already used for record sealing. The chance to erase records, via expungement, can be a valuable alternative to sealing, Manning says.

“I’ve seen that as an attorney where we get a client’s record sealed, for somebody who is really turning their life around and even situations where maybe somebody wants to hire them, but for whatever reason they can’t because the sealed record still comes up,” Manning says.

Additionally, prosecutors now can personally apply to seal or expunge conviction records related to a low-level drug offense.

Reentry 2030: CSG part of new national initiative

Reducing recidivism also is the goal of Reentry 2030, a recently launched national initiative being co-led by the CSG Justice Center, the Correctional Leaders Association and JustLeadershipUSA.

“One of the challenges with reentry is that when people return, multiple systems touch them,” says Nicole Jarrett, director of the CSG Justice Center’s Corrections and Reentry Division.

“The way we typically think about reentry is that it’s a corrections challenge or issue,” she says. “But really, for successful reentry to happen, people need basics like housing. They need a job. If they have substance abuse needs, they need treatment.”

Reentry 2030 asks state leaders and stakeholders alike to think about the logistics of reintegration more broadly, and to let shared data drive policymaking, Jarrett says.

In part, this evidence-based approach involves identifying barriers to employment and other essentials of well-being that can make reintegration a self-defeating exercise.

And it also means listening.

“There’s been a growing movement around having people with lived experience share what the reentry process has looked like for them,” Jarrett says. “People who’ve gone through it will be the first ones to tell you all the inefficiencies. … They know because they’re the common element across all of these well-meaning systems, and programs, and organizations.”

The conversation on reentry and what it means for a former offender to find fulfillment needs to go beyond just reducing recidivism, she says, adding this means gaining a better understanding of existing racial and ethnic inequities in reentry success.

According to Jarrett, the new Ohio law’s emphasis on encouraging participation in pre-release programming is promising.

The challenge for Ohio and other states, she adds, is finding ways to scale up correctional programming, remove long waiting lists for services, expand participant eligibility, and then continue rehabilitation post-release through community programming and employer partnerships.

Strangulation now a felony under new Ohio law

SB 288 touches on many other aspects of Ohio’s criminal justice system. For instance, lawmakers revised their laws in response to the epidemic of drug overdoses and deaths.

First, the new law expands “Good Samaritan” protections for individuals who seek help when witnessing an overdose. These individuals will not be prosecuted if drug paraphernalia is found on them by police responding to the overdose. Second, legislators decriminalized the possession of fentanyl test strips, which can be used to detect the presence of fentanyl (tied to many overdose deaths) in drugs.

Another part of SB 288 marks a legislative victory for lawmakers such as Sens. Nickie Antonio and Stephanie Kunze, who had long sought a change in the state’s law on strangulation.

Now, strangulation in Ohio is considered a felony offense (it had not been prior to SB 288’s passage), much as it is in 48 other states.

The result is increased penalties for domestic abusers.

Antonio says some resistance over the years to a statutory change stemmed from concerns that increasing the criminal severity of strangulation would unintentionally harm “boys roughhousing.”

“This is so clearly not that,” she adds.

Antonio referenced testimony in multiple committee hearings about the physical damage of strangulation, as well as the potential for future violence by people who commit the crime.

A study by Johns Hopkins University, for example, found that a person who has been non-fatally strangled even once by his or her domestic partner is 750 percent more likely to later be murdered by that same partner.

Unlike previous bills where the focus was solely on domestic abuse cases, SB 288 includes tiered penalties based on whether the perpetrator is related to the victim or is a repeat offender for all instances of strangulation.

Antonio credits the provision’s inclusion in a larger omnibus bill as the reason it finally crossed the finish line:

“My hope is that with stopping it at the point of strangulation the very first time … there are a lot of lives to be saved. And maybe the perpetrator can get some help, too [while being incarcerated].”

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Schools across the region and nation are still reeling, to some degree, from the disruption that the COVID-19 pandemic had on students’ education.

On the 2022 National Assessment of Educational Progress, average student test scores in fourth- and eighth-grade math and reading fell in every Midwestern state — with one exception — compared to results from three years earlier. (Illinois’ fourth-grade math and reading scores were constant with 2019 averages.)

This decline in academic performance, combined with a mix of contentious issues and changing priorities in K-12 education, has led some lawmakers to take a closer look at how school systems are governed and policies are made.

Proposed Overhaul in Ohio

In the Midwest, several different education governance models are used.

Wisconsin and North Dakota have independently elected state superintendents, a position enshrined in each state’s constitution. Indiana also had an elected state superintendent until 2021, when a legislative change (HB 1005 of 2019) made the top school official a governor-appointed rather than elected position.

Governors also have considerable control of state-level education leadership in Illinois, Iowa, Minnesota and South Dakota. In those states, the governors appoint members of the state boards of education and/or the chief state school officer (see maps).

Ohio has a hybrid model of sorts, a 19-member State Board of Education with 11 members chosen by voters and eight appointed by the governor.

This board is constitutionally required to exist, but Ohio Sen. Bill Reineke believes many of its powers and responsibilities should be moved to the governor’s office.

For years, he has advocated for a cabinet-level administrator that would have jurisdiction over key policy areas, such as K-12 standards and assessments, school district report cards, teacher evaluation systems, and the distribution of state aid.

The State Board of Education would retain authority over certain administrative duties.

Last year, Reineke sought this kind of overhaul in governance with SB 178. At the time, Ohio had been without a full-time state superintendent for over a year, and Reineke and others felt a lack of leadership had contributed to lower test scores and an increased need for academic remediation.

He says the proposal is partly about improving accountability, by making the top school chief part of the governor’s cabinet, but also about modernizing the mission of Ohio’s K-12 education system.

The proposed cabinet-level position would oversee a “Department of Education and Workforce.” Along with adding “workforce” to the department’s title, Reineke envisions creating a new division focused entirely on career and technical education.

“Currently we have 700-plus employees at the Ohio Department of Education,” he says.

“When I started this quest five years ago, there were three [staffers] in career tech. Today, we’re all the way up to 37, and I just feel like we should have a larger percentage of people really focusing in on these programs.”

SB 178 passed the Senate in December 2022. Language from this legislation was ultimately included in a larger (and contentious) House bill (HB 151) that did not pass.

‘Sing out of same hymnal’

Paolo DeMaria, president and CEO of the National Association of State Boards of Education and a former Ohio state superintendent, says debates over education governance structures can sometimes be a manifestation of something else.

When SB 178 was debated on the Senate floor, for example, some proponents of the bill cited frustrations with unfunded state mandates and how a school-choice scholarship program was being carried out as justification for a new governance structure.

Twenty-five years ago, a high-profile debate over education policy in Minnesota led lawmakers to end their state’s structure and replace it with one unique in the Midwest — a governor-appointed, cabinet-level education commissioner, with no state board of education. Minnesota’s elimination of the governor-appointed board marked the first time any U.S. state had made such a move.

At the time, Education Week notes, one catalyst for this change was negative reaction to a board-approved policy known as the “diversity rule,” which required Minnesota districts to develop plans to address student achievement gaps along racial and ethnic lines.

Rep. Gene Pelowski — who voted for the bill at the time — says K-12 education policymaking in Minnesota today is dominated by the Legislature and the governor. He worries about the level of “meddling” that now comes from St. Paul.

“A one-size-fits-all [approach] on what is going to be done in the classroom has probably done more harm to education than anything else, coupled with statewide testing,” he believes.

Regardless of the governance model, DeMaria notes, legislatures have significant authority over education practices.

“The fundamental question is, Are there certain governance models that are better than others? And the answer to that is ‘no.’ ”

Instead, he says, the emphasis should be placed on an effective sharing of responsibilities and goals.

“When I go to a state and I see the board, and the superintendent, and the governor, and the legislature all singing out of the same hymnal and working collaboratively on a common agenda, that’s where you actually [move forward],” says DeMaria, who cites Mississippi’s successful efforts over the past decade to improve literacy scores as an example.

Controversy in Nebraska

DeMaria acknowledges because education has always been a political issue, politics undeniably plays a role in the few states that have elected state board of education positions.

“If I am running in a state and I know that to win I have to accumulate a certain number of votes, then that goes into the platform-setting and the representations that are made,” he said in an interview last year with Politico.

Three Midwestern states — Kansas, Michigan and Nebraska — have all members of their respective state boards of education publicly elected. During the 2022 elections in Nebraska, there was heightened interest in these races.

That’s in large part because of a controversy which arose one year prior, when the Nebraska State Board of Education released draft proposals for state health education standards. The first draft was met with heavy criticism due to the inclusion of learning goals centered around gender identity and descriptions of sexual acts starting in elementary grades. The second draft made significant
changes, but the board ultimately voted to postpone implementation indefinitely.

A significant legislative and political fallout ensued.

During Nebraska’s 2022 legislative session, an unsuccessful proposal (LB 768) sought to prevent the State Board of Education from adopting standards unrelated to reading, writing, math, science or social studies.

Meanwhile, a coalition of people opposing the 2021 sex education standards were able to transform a Facebook group into a political action committee that backed several candidates for the Nebraska State Board of Education. Most of those candidates won their election in November, resulting in a major change in the makeup of the board.

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One reality about serving in the nation’s laboratories of democracy: On some issues, the lab can get shut down at any time, if a federal measure passes and includes preemption language.

Consumer data privacy appears to be one of those issues.

Minus action by the U.S. Congress, state legislators across the country have been crafting bills to establish new privacy protections for their constituents amid growing concerns about how companies collect, use and sell consumer data. As of early 2023, five states (none in the Midwest) had consumer data privacy laws in place, often mirroring each other in many ways in order to avoid a “patchwork” of laws and definitions.

At the same time, these enacted measures have enough substantive differences to get the label of “business friendly” or “consumer friendly.”

Since 2021, legislation has been introduced in most Midwestern states, and last year, measures were approved in three legislative chambers (see map). Many proposals will be under consideration this year as well, all while lawmakers watch for a breakthrough in the nation’s capital, where congressional leaders came closer than ever in 2022 to agreeing on a comprehensive federal law.

“I expect that whatever I get passed here in Minnesota is eventually going to be preempted by federal legislation,” says Rep. Steve Elkins, whose long professional background in data management and information technology made him a natural fit to be a point person on the issue. “But I also expect the legislation that we’re passing in the states is going to have a heavy influence on what Congress eventually does.

“That’s what I view as the long-term legacy of the work that we’re doing now — identify the issues, flesh them out, and then write good legislation that Congress can use as a model.”

David Stauss, a leading national expert on states’ work on consumer data privacy, agrees that all of this work of states is shaping the direction of federal policy. He points to laws taking effect this year in the “3 C” states (California, Colorado and Connecticut) as examples.

“Everybody realizes that a 50-state approach to privacy law would be a mess,” says Stauss, a partner at Husch Blackwell LLP and co-leader of the firm’s privacy and data security practice group. “What I think the advantage of the state approach right now is it allows things to be tried, rules to be proposed and changed. Also, it ingrains certain concepts and sets floors [on privacy rights] for what will happen at the federal level.”

One state may lead to another

In the meantime, Elkins believes this year’s implementation of new privacy laws in a handful of states will give momentum to legislative proposals in other states, including his own.

He recounts a recent experience of logging into the site of a national hotel chain.

“I went to update my [membership] profile, and there was an option that says, If you’re a resident of California or a couple of other states, you have these additional rights. Click here,” Elkins says. Increasingly, he believes Minnesotans will be asking: Why don’t I have these same rights?

In his work on consumer data privacy, Elkins has used as a starting point the Washington Privacy Act. (As of early 2023, the state of Washington had not passed the measure, but other state laws, with the exception of California’s, were modeled after it.) Elkins expects his legislation this year to again rely on the Washington framework, while incorporating recent enhancements in other states as well as some of his own ideas in areas such as how “precise geolocation” is defined in statute.

What are Elkins’ “must haves” for laws on consumer data privacy?

“They need to have things like the right to have an opt-out of having your data sold,” he says. “The right to know what data a company has about you. The right to correct inaccuracies in that data. The right to question decisions that have been made about you based on that data.”

‘What are the rules?’

Like Elkins, Wisconsin Rep. Shannon Zimmerman came to the legislature as a “data guy.” He and his wife started and successfully built up a language-translation company. More generally, too, Zimmerman embraces the value of “big data,” as a means of improving the experience of consumers and the lives of people.

“As a guy who loves tech, I think we’re living in the best times, this convergence of big data, AI and quantum computing,” he says. “We’re going to see cures to cancer, I hope, in my lifetime as a result of all this. “But I think one of the things that has been overlooked is, what are the rules? What are the ethical considerations as it relates to personally identifiable information?”

That’s where he believes state government, especially minus action at the federal government, must step in, and Zimmerman lays out three pillars for how his state should set new rules in the area of consumer data privacy.

“Number one, I want a Wisconsin resident to be able to say to a data collector, what do you have on me? What have you collected? Number two, to whom have you shared or sold my private and personal information? And then, third, I, the consumer, should be able to say, ‘No, stop, delete it.’ ”

The International Association of Privacy Professionals tracks legislative activity in states, comparing the measures based on their inclusion or exclusion of eight specific “consumer rights” and five “obligations” put on business. The former category includes a consumer’s right to opt out of sales, a right not to have his or her sensitive data processed without first opting in, and a right not to have automated decisions made about him or her without human input.

Among the obligations on business: no discrimination against individuals who exercise their privacy rights and disclosure to consumers of data practices (see full list below).

New obligations on business

From the perspective of Caitriona Fitzgerald, for a law to be truly “consumer friendly,” it must uproot a model that she believes puts an unrealistic burden on consumers to secure privacy rights from each and every business with which they interact online.

“Instead, put an obligation on the companies that they can only collect what is reasonably necessary for what service they’re providing, and a few other limited services such as fraud prevention,” says Fitzgerald, deputy director of the Electronic Privacy Information Center. According to Fitzgerald, the five U.S. states with laws on the books have not met this “reasonably necessary” test; in contrast, the 2022 federal legislation did.

Minus this kind of blanket limit on data collection, Stauss says, some states have included statutory language that allows for a “universal opt-out mechanism.”

“There are emerging technologies, through browsers or browser conventions, that can send a signal to a website, ‘I want to opt out,’ “ he explains.

For consumers, this means not having to opt out every time, on every different company website.

Stauss notes, too, that some of the new state laws require businesses to obtain consent before collecting certain sensitive data. In its definition of “sensitive data,” for instance, Connecticut includes race and ethnicity, religious beliefs, health conditions, sexual orientation, biometric and genetic information, a child’s personal information, and the precise geolocation of an individual.

Another consideration for legislators: whether or not to require businesses to conduct data protection assessments.

“In a nutshell, the concept behind these provisions is that a business can be engaging in certain high-risk processing activities,” Stauss says. “So the states are saying you should conduct an analysis of your processing activity. You should consider factors to make sure that you’re only collecting the information that you need to collect. You’re getting rid of information after a certain time period. Those types of things.”

Private right of action?

Stauss adds that no states have yet to “ring the bell” on giving consumers a right to private action. Consumer advocates want individuals to be able to bring lawsuits for privacy violations, as opposed to relying on actions being initiated by state law enforcement.

Zimmerman balks at the idea of including such a private right of action in Wisconsin. “We already have a hyper-litigious society,” he says.

His measure from 2022 (AB 957) included a “30 day right to cure,” in which Wisconsin companies that violate the state law are given the opportunity to fix the violation. “If there is a second time, then the attorney general can say, ‘We’re going to now invoke action,’ ” he says.

The federal legislation from 2022 included a private right of action, Fitzgerald says, along with enforcement by federal and state authorities.

“There’s an Illinois biometric privacy law that has a private right of action,” she notes, “and that’s just proven to be a really, really valuable tool.”

The Illinois law dates back to 2008 and, among other provisions, requires entities to obtain written consent from an individual before collecting his or her biometric data. Individuals harmed by the violations have the right to pursue legal action. Last year, in a class-action lawsuit involving more than 45,000 truck drivers, an Illinois jury brought a $228 million judgment against BNSF Railway for violation of the biometrics statute, according to the Chicago Tribune. The suit centered on the railway’s collection of fingerprint data from the truck drivers.

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Who owns the farmland in America’s heartland?

Since 2015, foreign ownership of U.S. farmland has increased by an average of 2.2 million acres a year, a trend that is getting more scrutiny from the Midwest’s state legislators. “I believe we need to address this issue of foreign land ownership now, before it turns into a food security and national security issue,” South Dakota Rep. Gary Cammack says.

One idea under consideration in his home state: establish a board that would review proposed purchases of agricultural land and recommend whether the sales should be approved. In advance of introducing the bill for this year’s legislative session, Cammack worked on the proposal in late 2022 with other lawmakers and Gov. Kristi Noem.

It’s not a new issue for state legislatures.

Forty-four years ago, South Dakota banned foreign residents and governments from ownership of more than 160 acres of farmland. The law, though, did not include corporations, and several foreign corporations now control more than 480,000 acres of South Dakota farmland.

States such as Iowa, Kansas, Minnesota, Nebraska, North Dakota, South Dakota and Wisconsin also have restrictions of some kind that limit foreign ownership or investment in farmland. In Canada, too, Alberta, Saskatchewan and Manitoba limit foreign ownership of agriculture property to small acreage.

Statutory language varies from state to state — for example, how farmland is defined, the types of foreign investors who are restricted under the law (nonresident aliens, foreign corporations, foreign governments, etc.), and the acreage limit set for foreign owners or investors.

Iowa, Kansas and Wisconsin have among the strictest prohibitions on foreign ownership of agriculture land. (Iowa is widely considered to have the nation’s toughest ban.) But even in these states, a foreign investor can use a trust, create a tiered entity, or enter into a partnership with a U.S. business or investor and establish a domestic company that acts as the purchaser.

Indiana has new partial ban on foreign purchases

In 2022, legislation was introduced in several state legislatures to further restrict foreign ownership of land. Few of these measures became law, but Indiana’s SB 388 was an exception. The bill’s sponsor, Sen. Mark Messmer, worked closely with existing Indiana companies to revise the original proposal.

In its final, enacted form, SB 388 does not completely prohibit foreign business entities from owning all agricultural land, just that used for crop or timber production. Livestock, poultry and research facilities are exempted, thus ensuring the measure wouldn’t impact existing research and genetic seed stock investments.

“That crop ground should be used to supply food and food security to our country first,” says Messmer, who has expressed particular concern about land purchases being made by China. “With an adversary of our country buying and controlling more agricultural land every year, it would eventually also become a national security issue.”

Ultimately, SB 388 passed with only a single dissenting vote. Questions were raised, though, about the exemptions for livestock and research facilities.

“The intent of the bill was to make sure that folks who may not have our food security and best interest in mind are not able to buy and procure that property. If the goal is to ensure food security, we are all of a sudden carving out huge holes in that effort,” Rep. Justin Moed said during legislative hearings on the bill.

As of December 2021, foreign investors owned approximately 40 million acres of U.S. timberland and farmland, representing 3.1 percent of all U.S. agricultural land, according to a December 2022 study by the U.S. Department of Agriculture. That is a 60 percent increase from 2010.

Additionally, many of the largest agricultural companies in the United States are foreign-owned. JBS, the nation’s third-largest meat producer, is a Brazilian company. Smithfield, the fifth-largest meat processor, and Syngenta, the fifth-largest seed and chemical company, are Chinese state-owned. Bayer and BASF, also leading agrochemical and seed companies, are German-owned.

According to the USDA, Canadian investors own about one-third of the foreign-held agriculture land in the United States. “Foreign persons” from four other countries (the Netherlands, Italy, the United Kingdom and Germany) together hold another one-third.

In some cases, purchases have led to prime farmland not being used for food production. For example, driven in part by federal tax credits, foreign energy companies have purchased the land and then leased it for wind turbines.

Last year, a Chinese company purchased 370 acres of prime farmland just north of Grand Forks in North Dakota. The purchase was made to build a corn wet-milling plant. A Chinese real estate group also bought 130,000 acres in Texas to build a wind farm. These particular purchases raised alarm bells because of the locations, both of which are close to U.S. Air Force bases.

The Grand Forks base, for instance, is central to the Air Force’s drone technology, surveillance and reconnaissance research. The interagency federal Committee on Foreign Investment completed a 45-day review of the purchases in North Dakota and Texas, and did not block either of them. However, in January 2023, the Department of the Air Force said in a letter that the Grand Forks project “presents a significant threat to national security with both near- and long-term risks.” North Dakota’s two U.S. senators have asked the city to discontinue the project.

“We should work together to find an American company to develop the agriculture project and instead work with them to find an American company to develop the agriculture project,” Sens. John Hoeven and Kevin Cramer said.

With these purchases, China would own approximately 1 percent of the foreign-held land in the United States. According to the USDA, China has multiplied its agricultural land purchases around the world by more than 10 times since 2009.

Federal law requires reporting of land buys

Forty-five years ago, U.S. Sen. Chuck Grassley of Iowa helped write the Agricultural Foreign Investment Disclosure Act. Under this law, foreign entities are required to report agricultural land purchases to the USDA. The law calls for foreign entities to be fined for not complying with the reporting requirements. The last such fines were issued in 2014.

The USDA does not currently check for accuracy, and under-reporting is known to be an issue. Federal lawmakers have introduced additional legislation over the last few years requiring additional review of foreign investment. One of Grassley’s concerns is that foreign investors drive up land prices, making it harder for new and beginning farmers. However, the USDA has investigated the overall impact of foreign investment on the rural economy.

Looking at land and rental values in states with restrictions vs. those without foreign limitations, USDA researchers determined in the December 2022 study that there was no significant impact on agricultural land value as a result of foreign investments.

Note: All graphics come from the U.S. Department of Agriculture

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