Opinion Editorial
March 25, 2005

Author: Mike Krause

In 2003, the Colorado Legislature took a tentative step towards sentencing reform for small time drug offenses by passing Senate Bill 03-318 (SB-318), which lowered the penalty for simple use and possession (one gram or less) of most illegal drugs to the class-6 felony sentencing range, the lowest felony class in Colorado’s presumptive sentencing structure, carrying between one to one and a half years in prison. The law ties the changes to corrections cost savings, which must be realized and transferred to a drug offender treatment fund by 2007.

A February 2005 status report concludes, among other things, that the cumulative projected savings should exceed the floor of $2.2 million cited in the statute.

The legislature should move to make drug offense sentencing reform meaningful rather than experimental by lowering those offenses covered by SB-318 from felonies to misdemeanors. Here is why:

In the eighteen months before the sentencing changes went into effect, 3.5 percent of drug use and possession convictions were in the class-6 felony range. In the eighteen months following, class-6 felony drug convictions increased 30 percent, while the more serious class-4 and class-5 felony drug convictions dropped a combined 29 percent. In other words, small time use and possession offenses are significant number of felony drug convictions in Colorado.

The report claims cost savings of $28.8 million in an if SB-318 had not passed comparison, and after including variables such as an increase in average length of prison stay, puts the overall projected savings from this scenario at $8.5 million.

It’s a start, but there is more savings to be had. Colorado spends around $100 million a year to imprison its drug offenders, who make up 20 percent of the total prison population. The Independence Institute study Priority Colorado: Balancing the Budget While Preserving TABOR and Colorado’s Quality of Life estimates between $28.25 and $41.6 million in savings from, among other things, downgrading simple use and possession to misdemeanors and expanding the use of parole and community supervision for non-violent drug offenders.

In a February 2005 response to Priority Colorado, the Joint Budget Committee wrote, “Criminal sentencing reform could generate significant General Fund savings. Savings would not occur in the short term. The level of savings would depend on the scope of any statutory changes.”

There is also room for savings in terms of wrecked lives and lost opportunities. While SB-318 may result in shorter sentences, it does nothing to address why simple use and possession are felony crimes to begin with.

Law Professor Glenn Reynolds notes that felonies were once a fairly rare class of crime, and a felon was, by virtue of his heinous acts, an outcast from society. “Even if permitted to live, he was expected to bear the mark of his iniquity for life, in the form of lost civil rights like the right to vote and the right to bear arms.”

Drug use and Possesion is a felony not because of any inherent criminality–indeed, using or possessing some small amount of a currently illicit drug is wholly consensual–but rather an act prohibited by legislative declaration in pursuit of a perceived public good (malum prohibitum).

Far from serving the public good, having small time drug offenses as felonies has simply helped to fill up Colorado’s prisons, with no significant corresponding reduction in the availability of illegal drugs.

According to the SB-318 legislative intent, “The General Assembly finds that Colorado will benefit from reducing the number of drug dependent Coloradoans through a resulting reduction in the burden on the state’s criminal justice system, penal system, and health care system.”

Yet carrying a felony conviction drastically reduces one’s ability to obtain credit, or seek housing and employment; the basic elements of a productive life. Law Professor Robert Lawson, who helped author Kentucky’s penal code, explains that lawmakers, having lost sight of the importance of distinguishing between dangerous and non-dangerous offenders, “have laid a foundation for a new citizen underclass made up of parolees, ex-convicts and their families.”

If fewer drug dependent Coloradoans’ are good for Colorado’s criminal justice system, then surely fewer Coloradoans’ carrying felony convictions for small time drug offenses and the accompanying destroyed job opportunities are good for all Colorado taxpayers.

Taking SB 03-318 to the next level will be a good step towards returning some common sense to drug policy. Returning a needed sense of seriousness about what is, and what is not a felony, also deserves our utmost attention. And the savings will come, in more than just dollars and cents.