Colorado lawmakers are considering a controversial new bill that would make drug possession a misdemeanor crime instead of a felony. The proposed HB19-1263 would include both Schedule I and Schedule II substances, such as cocaine, heroin, and fentanyl.

The idea is that the fifty-year-old so-called “War on Drugs” isn’t working as it is currently being fought. For almost two decades, every passing year has set a tragic new record, in terms of the total number of overdose deaths in America. Last year, over 70,000 people were killed due to a fatal drug overdose.

Currently, the maximum penalty for drug possession in Colorado is 18 months in prison.  Under this new proposal, the maximum penalty for possessing drugs for personal use would be six months in prison and two years of probation.

The bill would also eliminate the felony charge for possessing more than 12 ounces of marijuana.  Finally, it would reduce the penalties for other drug-related misdemeanors. Importantly, this bill does not change the penalties for other drug felonies, such as manufacturing or distribution.

Let’s see what both supporters and critics of the proposed bill have to say.

Drug Crimes on Colorado: An Overwhelming Problem

“Our state cannot afford to continue doling out felony convictions and sending people to prison for drug possession.”

~ Colorado State Representative Leslie Herod

Did you know that 30% of all felony charges in the state are for drug offenses?

This creates a logistical nightmare for law enforcement, the judicial system, and state prisons. Just this past December, the Colorado Department of Corrections asked for $40 million to expand the state’s prisons. According to a Colorado Division of Criminal Justice study, the inmate population is expected to increase by over 38% between  2017 and 2024.

Take a look at these other statistics related to drug charges in Colorado:

  • Between 2012 and 2018, the number of felony drug filings in the state jumped by 123%.
  • In Denver, drug offenses make up 41% of all felony filings.
  • Statewide in 2017, 75% of felony drug cases in Colorado were for possession, instead of more serious crimes such as distribution.
  • 84% of people being sentenced to prison for possession had that charge as their original offense. This means that the sentence wasn’t due to a plea bargain.
  • In 2012, there were less than 8000 drug felony case filings in the state of Colorado, and the Department of Corrections budget was just over $700 million.
  • But by 2018, there were well over 16,000 filings, with an annual budget that had ballooned to more than $900 million.

“We have relied on jails for decades to deal with people who are addicted, and it’s appalling – and it doesn’t work. These institutions were never designed to be treatment centers, and they can’t be relied upon to do that,” says Christy Garner, the Executive Director of the Colorado Criminal Justice Reform Coalition.

Support for the New Bill

“Most importantly, this bill doesn’t eliminate the opportunity for a judge to sentence jail time. We’re not saying it’s no longer a crime; we’re not saying that simple possession is something you’re going to get a slap on the wrist for – 180 days is still 180 days in jail.”

~ Representative Herod

This proposal is expected to save Colorado up to $13.7 million over the next five years. And there are other benefits that go beyond simply saving money.

First, it would end the ineffective practice of arresting the drug problem away.

Second, it would stop putting newly-released felons in desperate situations where they can’t find a job or housing.

Third, it frees up the logjam in the criminal justice system. More felony drug offenses mean more judges, more prosecutors, more public defenders, and more court staff.

Fourth, it would shift the focus away from punishment to where it needs to be – treatment.

Fifth, this proposal would establish a grant program aimed at funding Colorado county drug courts.

Representative Herod says, “Most Coloradans agree we should focus more on treatment and prevention instead of punishment and incarceration, and that is exactly what this legislation does.”

She’s right – in a recent poll, 63% of respondents believe that the penalty for drug possession should be lowered.

What Do Critics Have to Say?

They’ve experienced explosive growth in the homeless population, and they blame it on exactly this moment in time. Violent criminal activity has increased dramatically in Seattle in the year since making Schedule I and Schedule II drugs misdemeanors… I urge you to heed the warnings from other communities. I agree with many in my line of work who see what you’re about to do as a slap in the face to every single one of us.”

Sheriff Bill Elder, El Paso County, talking about similar laws passed in the State of Washington

The biggest concern from people who oppose this bill is that it reduces the penalty for possession of deadly drugs to a simple misdemeanor. They argue that, in a way, this proposal would grant tacit approval to drug addicts throughout the state. The proposed maximum penalty would not be an effective deterrent, they argue.

Sheriff Elder is correct in his claims. In 2017, there were close to 12,000 homeless people in King County. In fact, the Seattle area spends over $1 billion annually fighting homelessness. That works out to almost $100,000 for every homeless woman, man, and child living in King County.

In 2016, the violent crime rate increased by 7.4% across Washington State, compared to 2015. For example, in Seattle, the violent crime rate jumped by 4.9%, after a 2.4% increase the year before. And when you consider Seattle, Tacoma, Bellevue, and Everett as a whole, the increase was 8.2%, following a 4.4% percent increase between 2014 and 2015.

And while the murder rate was down, the number of rapes is skyrocketing. Between 2015 and 2016, the number of rapes in Seattle increased by 76%.

Scott Lindsay, formerly the top crime advisor in Seattle, reported recently, “The increase in street disorder is largely a function of the fact that heroin, crack, and meth possession has been largely legalized in the city over the past several years. The unintended consequence of that social policy effort has been to make Seattle a much more attractive place to buy and sell hardcore drugs.

Looking again at Seattle as an example, the property crime rate there is two-and-a-half times higher than that of Los Angeles and four times higher than that of New York City. Dirty needles are a public health crisis.

Critics also believe that this proposal would shift the burden from the state prisons to local county jails, which are also already at capacity or overcrowded. While a felony is typically served in state prison, misdemeanor offenders usually serve out their sentence in city jail or county facilities.

Finally, some worry that “defelonizing” drug possession will take away law enforcement’s bargaining power to convince arrested drug users to accept a plea bargain deal in exchange for helping arrest higher-up dealers and manufacturers.

If possession of Schedule I and Schedule II drugs is no longer a felony, will Colorado experience some of the same negative consequences as Washington State?

What Does All of This Mean to You?

The War on Drugs has completely failed.  The system is broken, and this is a way to fix it.”

~ State Representative Herod

This proposal, which has bipartisan support, for walks a fine line between attempting to shake up the ineffective status quo and potentially opening up the door for the even more drug-related problems in Colorado.

But one thing IS fairly certain, however.  The old ways of doing things simply aren’t working.  Drug deaths continue to rise, and new, scarier, and even deadlier synthetic drugs have arrived on the streets.  Maybe arrests and incarceration aren’t the answer, after all.

Because medical science now tells us that addiction is a disease, perhaps it is time to actually focus public resources and efforts on education, prevention, and evidence-based treatment, rather than punishment.  If those measures are the result of these proposed changes, then this will be a positive step in the right direction.

But lawmakers cannot lose focus on the real reason why this bill is so necessary.  While reducing prison overcrowding and saving money are both necessary, the primary goal needs to be the expansion of drug prevention and treatment services throughout the state of Colorado.

As maligned as Seattle’s example has been, consider this:  several years ago, the city introduced the Law Enforcement Assisted Diversion (LEAD) program.  The goal of LEAD was to get low-level drug users out of the criminal justice and penal systems and into treatment services within the community.

As a result, recidivism rates have dropped by almost 60%

Earlier this year, the Denver Police Department established their own version of the program.

The bill has already made it through both the House Judiciary Committee and the Finance Committee and will now head to the Appropriations Committee.