13 May 2010

Colorado Adopts Sensible Sentencing Reforms

Colorado's legislature adopted several criminal justice reforms this year. Two are particularly notable.

H.B. 10-1360, limits the amount of reincarceration for non-high risk parolees who have committed only technical violations of their parole (i.e. violations that are not crimes) to 180 days. Under prior law, a minor technical violation of parole, like missing an appointment with a parole officer (even if the parolee calls to explain later the same day), could result in years of additional incarceration at great expense to the state. Similar changes in states like Texas have greatly reduced prison populations without increasing crime rates.

H.B. 10-1352 is even more notable. It lowers incarceration terms for low level drug offenses, particularly simple possession, narrows the definition of aggravating circumstances like using weapons while drug dealing, and also increases the sentence for a narrow range of offenses like selling drugs to elementary and middle school aged children. Equally important, many minor drug offenses which were previously minor felonies are now misdemeanors, so individuals with those kinds of convictions will no longer face the many collateral consequences of a felony conviction. The formidable corrections budget savings that result are partially ear marked for substance abuse funding.

Colorado's drug laws were not the toughest in the nation in the first place. The state's major push to enact very long sentences has largely been confined to violent offenses and sex offenses, with sentences for non-violent felonies not singled out for special treatment remaining at pre-"tough on crime" levels. And, at least towards marijuana offenses, which have always been the least serious under the state's criminal code, there has been a particular trend towards moderation, which is reflected in H.B. 10-1352.

The reforms to state drug laws are not the entire picture, however. While the Obama administration has pledged not to prosecute medical marijuana cases where the activity is legal under state law, and the City and County of Denver has decriminalized possession of small amounts of marijuana and made marijuana prosecutions the state's lowest priority, stiff federal drug laws remain on the books. Many of those federal drug laws carry mandatory minimum sentences, so once there is a conviction, even the federal sentencing judge is often not at liberty to offer mercy.

All law enforcement has to in order to make use of much longer drug sentences under federal law is to refer the case to federal prosecutors. Defendants can't appeal the choice of venue, and "task forces" of state and federal law enforcement officials in the state exist more or less expressly for the purpose of diverting offenders to the federal system in selected cases.

From the point of view of the state budget, this is all fine and good. When a drug offense case is diverted to federal court, the costs of the prosecution of the case and the subsequent incarceration come out of the federal rather than the state budget. The state gets the deterrent effect of tough sentences for drug violations without having to pay for or administer them.

But, from the point of view of fairness and justice, the determination of how long someone caught committing a drug crime will spend in prison (and the cases are often open and shut ones, in terms of likelihood of conviction), rests largely in the hands of the federally appointed U.S. Attorney for the District of Colorado, and this decision is not subject to any meaningful form of judicial review or any guiding principles with any binding effect.

A limited number of federal prosecutors in the state, Justice Department policies that strongly discourage prosecution of crimes in federal court when they are already being prosecuted in state court (something that is not constitutionally prohibited), and limited federal access to information about drug offenses encountered by state law enforcement put practical limits on how many cases will be prosecuted in federal court, however. So, in most drug cases, the possibility of long federal sentences will be only an empty threat.

If Colorado's reforms show success, and a wealth of research evidence shows that they will, they could encourage other states and the federal government to follow suit.

Both bills were passed this week and could still face a veto by Governor Ritter. But, because each of the bills provide major cost savings that are important to the state budget that he has already signed, and because Governor Ritter does not have to worry about running for re-election, there is a strong likelihood that these bills will not be vetoed.

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