On May 1st, Senate Bill 250 passed out of the Colorado Senate with an overwhelming 34-1 vote. At more than 70 pages, the bill is a re-write of much of the Colorado Uniform Controlled Substances Act (UCSA), which is the legal framework for the contemporary drug war in Colorado. The senate sponsors of the bill are Pat Steadman, a Denver Democrat and Steve King, a Western Slope Republican. The House sponsor is Claire Levy, a Boulder Democrat.
SB 250 is without question the most significant attempt to reform Colorado’s intrusive, expensive and counter-productive drug law regime in decades. The following is my analysis of the major reforms that make SB 250 a positive step in drug law reform, along with a few minor criticisms.
Pushing back against the federal drug war bureaucracy: The UCSA was enacted in 1992 to “complement” the federal Controlled Substances Act, and bring state drug laws in to conformity with federal drug laws. The act dramatically expanded Colorado’s criminal code, creating numerous new drug-related crimes (and thus numerous new drug criminals) and sentencing enhancements for those crimes.
In our Constitutional Republic, the authority and responsibility to write the state’s criminal law lies with the legislature. In other words, the 1992 General Assembly willingly subjugated its prerogative to write Colorado’s criminal law to the dictates of federal drug war bureaucrats.
In a 1992 issue paper, published before the UCSA was enacted, Independence Institute research director Dave Kopel laid out the dangers in allowing unelected and unaccountable federal employees to dictate Colorado law:
Is an increment of presumed advantage in the drug war worth the price of warrantless searches, extreme and irrational punishments, pointless additional prison crowding, expansion of prosecutors’ power to take away property from people never found guilty of a crime, and further abdication of state powers to federal bureaucrats?
The answer from the legislature back in 1992 was yes. As I have previously written here, here and here, the drug war has been an ongoing policy disaster in Colorado, jamming prisons and jails full and forcing taxpayers to prop up an ever-growing and intrusive drug war apparatus. All the while, illegal drugs remain relatively cheap and readily available in Colorado. So while there is still a long way to go, Senate Bill 250 is a modest opportunity for the Colorado legislature to take back some of the state powers it has abdicated to the federal government in the name of the drug war.
A new drug offense sentencing grid: SB 250 creates new felony and misdemeanor sentencing grids for controlled substance offenses, separate and distinct from Colorado’s existing presumptive sentencing scheme. In other words, drug offenses would have their own sentences, rather than being part of the same sentencing structure as violent and property crimes. This is a positive policy change that the Independence Institute suggested in the 2005 Issue Paper, “Getting Smart on Crime: Time to Reform Colorado’s Drug Offense Sentencing Policies.”
In 1985, the Colorado legislature doubled the maximum penalty across the board for felony crimes. The Department of Corrections (DOC) describes the result: “The average length of stay projected for new commitments (to DOC) nearly tripled as a result, from 20 months in 1980, to a high of 57 months in 1989.” The prison population more than doubled in the five years following HB 1320.” The inmate population more than doubled again over the next couple decades.
Longer sentences for certain classes of crime are fine as a tool of incarceration and separation. But placing drug offenses, including sale and manufacture, in the same sentencing scheme as violent and property crimes is counter-productive, since incarceration does not affect the use or availability of drugs outside of prison. For example, imprison one serial burglar and there is one less burglar committing burglaries. There is not another burglar waiting to take over the newly vacant burglary territory. The same holds true for other predatory criminals. But the imprisonment of one drug dealer (or even an entire drug network) only temporarily disrupts the flow of illegal drugs. As soon as one supplier is gone, another quickly moves in to take his place.
It also consumes the criminal justice system’s most valuable resource; prison beds, distracting prisons from their primary mission of incapacitating violent and predatory criminals.
Ending “extraordinary risk” sentencing enhancements for drug offenses: One of the most irrational theories propping up the failed war on drugs is that illegal drug sales and use are inherently violent and constitute a threat to public safety, this despite the fact that the DOC lists all drug offenses as “non-violent.” Under current law, most manufacturing and sales drug offenses in Colorado are labeled as “extraordinary risk of harm to society” crimes, which automatically increase sentences in Colorado’s presumptive sentencing scheme. But in reality, much of the violence related to illegal drugs is due mostly to drug laws themselves. Violence from disputes between dealers (turf wars) is engendered by prohibition, just as alcohol prohibition caused violence in another era. Robberies and other crimes committed by drug users to support a drug habit are caused in part by the “risk premium” charged by drug dealers as part of their risk of going to prison.
The SB 250 drug offense sentencing scheme doesn’t include automatic “extraordinary risk” sentencing enhancements except for the highest-level drug crime sentence (DF-1 felony) and instead requires legitimate aggravating factors as sentencing enhancements for drug offenses.
Ending “extraordinary risk” was also an Independence Institute recommendation from 2005.
Almost getting it right on drug possession: Until a couple of years ago, simply being in possession of one gram or more of a controlled substance was a felony crime in Colorado (to put that in to some perspective, an American nickel weighs five grams). 2010’s House Bill 1352 tweaked drug possession in Colorado, redefining the quantity of drugs that is considered “simple possession” from 1 gram or less to 4 grams or less of a schedule I or II drug and 2 grams or less of methamphetamine. Simple possession became a class 6 felony, the lowest felony designation.
SB 250 goes a step further on drug possession, just not far enough. The bill would create a “wobbler” statute. Possession will remain a felony, but those convicted of felony drug possession can have that conviction changed to a class 1 misdemeanor, the highest-level misdemeanor crime, upon successful completion of a sentence. You only get two shots at this deal, and on a third felony drug conviction, the felony record cannot be changed. Like three strikes, only in reverse.
A better reform would be to completely move simple drug possession from a felony to misdemeanor, a reform recommended by the Independence Institute in its 2005 study.
Carrying a felony conviction extracts a heavy toll, drastically reducing one’s ability to pursue the basics of a productive life; credit, housing and employment. By destroying job opportunities for drug users, the state helps to ensure these people never have the chance to be accountable to anyone other than to the state.
Another problem with possession as a felony is that it can lead to unjust and questionable practices by both police and prosecutors. Unlike other types of (actual) crime, drug possession has no victim and therefore no complainant. The only evidence is often just some drugs and police testimony. According to Joseph McNamara, an ex-New York City Police Officer and ex-Kansas City Police Chief: “[M]illions of times a year in the name of the war against drugs, police officers do illegally search people and, when they discover drugs, perjure themselves themselves so that the evidence is admissible.” According to McNamara, this practice has even become part of police jargon; in New York, it is “testilying” and in Los Angeles it is “joining the liars club.”
Drug possession can also be used by by prosecutors to obtain a relatively easy conviction when they cannot prove another, actual crime–such as one with a victim–but believe that person indeed committed the crime and deserves to be convicted of something. The integrity of our criminal justice system demands–regardless of intentions– that people only be convicted of crimes they actually committed and which can be proven.
A bill to make drug possession a misdemeanor was introduced in the 2012 Colorado General Assembly and was well on its way through the legislature when it was derailed by a cynical scare campaign.
While the wobbler is fine as a temporary reform, the legislature hopefully will re-visit drug possession as a felony in the near future.
Empowers unaccountable bureaucracy for no apparent reason: SB 250 states:
The statewide organization representing district attorneys or any other organization established pursuant to this article, may receive, manage, and expend state funds in the manner prescribed by the general Assembly on behalf of the district attorneys who are members of the organization.
The statewide organization representing district attorneys is the Colorado District Attorneys’ Council (CDAC), which engages in taxpayer funded lobbying at the legislature.
It is an utter mystery why a bill ostensibly about re-writing drug laws also makes the lobbying wing of elected prosecutors eligible for a state tax-dollar appropriation. It is inappropriate and unnecessary, and weakens an otherwise solid bill. The saving grace is that the bill does not attempt to actually make an appropriation for this purpose.
Abuse of the safety clause: The sponsors of SB 250 abuse the legislative “safety clause,” which improperly gets slapped onto the end of far too many bills. The safety clause states, “The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health and safety.”
Adding the safety clause to a bill means that citizens cannot use the petition process against “all or any part of the bill.” It is also supposed to be used for a bill that “addresses a matter that constitutes an emergency, that requires an immediate change in the law, or that must take effect prior to or on the first day of a fiscal year (July 1).”
Colorado’s current, albeit hugely flawed, drug law regime has been in place for decades. The sponsors of the bill might do well to explain to potential supporters of drug law reform exactly what calamity will befall the state should this bill not become law.
Those rather modest quibbles aside, SB 250 makes a strong effort to differentiate between drug users, those who peddle or otherwise share small amounts of drugs to support their own habits, and higher-level drug dealers. The bill also seeks to make a meaningful distinction between drug offenses and crimes against people and property.
In other words, SB 250 represents a net decrease in the stupidity of the drug war, and that is worthy of the broad support the bill is receiving.
Mike Krause is director of the Justice Policy Initiative at the Independence Institute, a free market think tank in Denver.
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