Columbus, OH – On Wednesday, The Buckeye Institute testified (see full text below or download a PDF) before the Ohio House Judiciary Committee on the policies in Ohio House Bill 88, urging lawmakers to protect The Buckeye Institute-championed mens rea reforms, which were “the first and best of their kind in the country.”

In his testimony, Alex M. Certo, a legal fellow at The Buckeye Institute, noted that “[f]or more than a decade, Ohio has demonstrated its commitment to prudent, commonsense criminal justice policies and reforms,” but that “House Bill 88 retreats from those reforms” by removing the mens rea requirement—the requirement that an offender knows they are committing a crime—in drug possession cases where a fentanyl-related compound is mixed with other drugs.

By removing the mens rea element, Certo pointed out “the offense will trap unsuspecting users—not traffickers—unaware that their drugs have been laced with fentanyl.” Once trapped, Certo observed, “such users will then face stiffer penalties for a crime they never intended to commit.”

Citing data that has “long shown that incarceration does not reduce drug use, recidivism, or overdose deaths but [] can create unintended collateral consequences,” Certo urged lawmakers to “focus on prosecuting mal-intentioned criminals, not unsuspecting victims who need rehabilitation and reintegration.”

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Protecting Mens Rea

Interested Party Testimony
Ohio House Judiciary Committee
Ohio House Bill 88

Alex M. Certo
Legal Fellow
The Buckeye Institute
November 12, 2025

As Prepared for Delivery

Chair Thomas, Vice Chair Swearingen, Ranking Member Synenberg, and members of the Committee, thank you for the opportunity to testify regarding Ohio House Bill 88.

My name is Alex M. Certo, and I am a legal fellow at The Buckeye Institute, an independent research and educational institution—a think tank—whose mission is to advance free-market public policy in the states.

Drug addiction and dependency have tragic consequences. And drug traffickers—especially those peddling dangerous and highly addictive fentanyl—must be held accountable and punished for the loss and pain they inflict on our communities. But addressing the problem fairly requires carefully distinguishing between predatory perpetrators and unsuspecting victims, and criminal laws should be written accordingly. 

For more than a decade, Ohio has demonstrated its commitment to prudent, commonsense criminal justice policies and reforms. The state’s mens rea reforms in 2014 were the first and best of their kind in the country, helping police and prosecutors protect neighborhoods from those truly intending harm. 

House Bill 88 retreats from those reforms by removing the mens rea requirement that an offender know or have reason to know that the drugs they possess contain fentanyl or a fentanyl-related compound. Removing that element of the offense will trap unsuspecting users—not traffickers—unaware that their drugs have been laced with fentanyl. Once trapped, such users will then face stiffer penalties for a crime they never intended to commit. 

The state should not punish inadvertence as harshly as it punishes intention. Empirical data has long shown that incarceration does not reduce drug use, recidivism, or overdose deaths, but it can create unintended collateral consequences that might otherwise be avoided. House Bill 88 risks those consequences by making it easier for some unwitting users to be charged with and convicted of a higher degree felony. 

Ohio must address fentanyl and drug trafficking. But the General Assembly should ensure that it targets the cause, not the consequence of the crime. State law should focus on prosecuting mal-intentioned criminals, not unsuspecting victims who need rehabilitation and reintegration. 

Thank you for your time and attention. I would be happy to answer any questions that the Committee might have. 

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