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Criminal sentencing bill is flawed, but debate over sentencing is long overdue

Opinion Editorial
April 21, 2009

By Mike Krause

Few issues in Colorado state government generate as much fear-driven acrimony or panic-tinged opposition as criminal sentencing reform. This helps explain why even modest sentencing reforms, which could potentially save million of dollars in prison spending, have been off the table during the last few big budget battles.

On April 15, State Senator John Morse introduced Senate Bill 286, a sweeping piece of criminal sentencing reform legislation that—at least in its current form—is too flawed to be allowed to become law. But despite the shortcomings of the bill, kudos to Senator Morse. It’s about time someone in the legislature had the guts to kick-start sentencing reform as part of the broader budget debate.

In 2005, during the Referendum C debate, the Independence Institute offered several very modest sentencing reform proposals as part of the much broader budget study, Priority Colorado. Despite Ref C being one the most significant budget debates in the state’s history, even those modest reforms were met with a combination of bi-partisan opposition and silence by lawmakers, and with open hostility by sheriffs, prosecutors and police chiefs. At the time, the Independence Institute took Governor Owens to task for taking sentencing reform (and thus prison spending) off the table as part of the budget debate. We said then that you simply cannot ignore the fourth largest, and fastest growing spending item in the state budget because sentencing reform is scary to talk about, and that still goes today.

In 1985, the legislature passed the “Mielke-Arnold” bill, which simply doubled the maximum penalties in Colorado’s presumptive sentencing range for all levels of felony crimes (note that in Colorado, simply being in possession of an amount of illegal drugs weighing less than an American nickel is a felony crime). The average sentence length quickly increased by two-thirds, and Colorado’s inmate population more than doubled in the next five years. It has more than doubled again since then.

Since then, successive legislatures and governors have taken Colorado taxpayers on what can only be described as an unprecedented, and irresponsible, prison spending spree that has pushed corrections spending from less than 3 percent to nearly 9 percent of general fund spending..

It is a fairly simple formula, but an increase in spending for one item as a percentage of the state’s general fund necessarily means that other spending items have to decrease as a percentage of the general fund.

In an often desperate effort to keep pace with the capacity demands of unprecedented growth in the state’s prison population, lawmakers have routinely busted Colorado’s statutory spending limitations. This year’s Joint Budget Committee budget briefing notes that in the sixteen years since Colorado lawmakers implemented the state’s 6 percent annual spending limit (the Bird-Arveschoug act), prison spending has grown “at a compound annual rate of 9.5 percent.” If prison spending had been held to the 6 percent growth limit, then last year’s Department of Corrections operating budget would have been around $430 million, instead it was nearly $677 million.

At the same time that lawmakers have routinely ignored spending limitations, they have continued to enact numerous new laws which have created yet more sentencing enhancements, and even new crimes, thus perpetuating the need to spend yet more and more money, often with less than clear public safety benefit. In 1992, for one example, Colorado lawmakers surrendered their prerogative to write the state’s criminal law and enacted the Uniform Controlled Substances Act, written by drug war bureaucrats in Washington, D.C., and which created both numerous new drug offenses, and sentencing enhancements for those offenses. According to the Department of Corrections, some 18 percent of Colorado’s prison population now has a drug offense as their “most serious offense.” There are as many drug offenders in prison today than the entire prison population twenty five years ago when the population was around 3,500 inmates.

While extreme prison spending, and the sentencing policies that drive the spending, clearly need to be addressed, SB 286 is no magic bullet. Cost savings from sentencing reform may take years to realize and should not be seen as a short-term fix to current budget problems. If lawmakers want to realize quick corrections savings, they are better off concentrating on cost drivers at the back end of the prison system such as technical parole revocations, which eat up thousands of valuable prison beds every year.

In other words, sentencing reform is a marathon and not a sprint.

While some aspects of SB 286 are a step in the right direction, the forty plus page bill is seriously flawed in that it seeks to do too much. For instance SB 286 would lower the penalty for simple drug possession from a felony to a misdemeanor, a fairly inoffensive but hugely significant change from the current irrational drug sentencing scheme and a reform that, on its own, might find bi-partisan support. But at the same time, among many other things, the bill affects offense levels and sentencing options for a range of property crimes and “non-violent” felonies. The bill also amends Colorado’s habitual offender statutes, a significant enough reform in and of itself that it should not be part of a larger effort. There is more, and there lies the problem.

While sentencing reform has the potential for significant long term cost savings to taxpayers, there can also be unintended consequences to doing too much at once (the enactment of “Mielke-Arnold” in 1985 is proof enough of that). This demands that specific sentencing reforms be debated on their own merits and SB 286 simply doesn’t allow for this.

Colorado lawmakers have ignored out of control prison spending for far too long. So while SB 286 is in need of some serious amending, the debate that the current bill is sure to spark is one we have needed to have for a long time.

Mike Krause directs the Justice Policy Initiative at the Independence Institute.