After Getting Busted For Drug Possession: Do Defendants Need a Carrot Or A Stick?

April 1, 2019
Photo: Civic Center Park State Capitol Statehouse Winter HV 20190319
The Colorado state Capitol from Civic Center Park on a March morning 2019. 

Public defenders are urging state lawmakers to consider legislation that would shift all drug possession charges from felonies to misdemeanors — a move that could reduce the state’s prison population.

The bill, getting its first airing this week in the state House of Representatives, lowers sentences to probation and up to 120 days in jail as a condition of — or a violation of — probation. It also allows counties to create drug courts.

At issue is the spike in drug felony case filings in the state. The Colorado Criminal Justice Reform Coalition found filings have more than doubled since 2012. Depending on who is asked, it’s either an indicator of a spiking statewide addiction crisis or a prosecutorial crackdown on non-marijuana drug charges, including possession.

Tom Raynes, president of the Colorado District Attorneys Association, said he has no problem moving drug possession from a felony to a misdemeanor, but he will fight to enable judges to push people toward treatment programs rather than jail.

“The way drug courts work and the reason they work is the court can say to a defendant, look there is a possibility of a year in jail here or you can enter treatment and go through the drug court program,” Raynes said. “That's an incentive for that individual to get treatment.”

Raynes called addiction a major health concern that should be treated appropriately -- he worries this bill gives people with drug problems a reverse incentive.

“As drafted, the only thing a court can do is say, ‘I'm going to give you probation and if you blow it then I'll put you in jail,’” he said. “Well that's backwards, and to me, that's only going to increase the number of people going to jail instead of treatment.”

Public defenders and criminal justice reform advocates take a different view. They say drug possession isn’t a crime that warrants a felony charge, which can yield prison time. They say prisons are overcrowded and that the carrot-and-stick approach to the state’s drug problems hasn’t worked.

“If that felony stick worked, we wouldn’t be having these drug problems,” said Maureen Cain, policy director for the Colorado State Public Defender. “Obviously there is still potential jail time. We want to put people on a treatment path. What the DAs are saying is that the stick isn’t big enough … But the stick doesn’t need to necessarily be big.”

The bill has been introduced at the same time Gov. Jared Polis is grappling with how to lower the population of Colorado’s prisons — which have a very low vacancy rate and cost taxpayers upward of $900 million a year.

The number of people in state prison on possession convictions is low — around 200 or so — but criminal justice reform advocates say downshifting all possessions from felonies to misdemeanors is a step in the right direction.

Prosecutors say those in prison on possession were likely charged with bigger crimes, like distribution, and pleaded down.

“It’s not about the big picture item, which is making them misdemeanors, that’s not the big flaw in the bill,” Raynes said. “It’s the limitation on judicial discretion.”