DRAFT 4/2/2012 7:33 AM For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

Office of Sen. Mike Johnston Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864

FACT SHEET MEMORANDUM SB 12-163

Reduction in Penalties for Those Convicted of Possession of Controlled Substances Sens. Mitchell, Steadman & Reps. Beezley, Levy

Staff Name: Ashley Boothby

What the Bill Does: S.B. 12-163 changes the criminal penalties for possession of small amounts of schedule I or II controlled substances, as summarized in the table below. Schedule I controlled substances include heroin, LSD and MDMA; schedule II controlled substances include cocaine, oxycodone and methamphetamine (though Colorado classifies methamphetamine separately both under current law and S.B. 12-163, and marijuana penalties would not be affected).1 The bill attempts to better differentiate between those who are addicted to drugs and more serious offenders, and does not change drug distribution offenses; accordingly, if there is evidence that an individual had intent to distribute even a small quantity of drugs, prosecutors can file a felony charge for drug distribution.

OFFENSE CURRENT CLASSIFICATION & PENALTY PROPOSED CLASSIFICATION & PENALTY UNDER S.B. 12-163

Unlawful possession of 4 grams or less of any schedule I or II controlled substance

2

“Class 6” felony

1 year to 18 months in prison

And/or a fine of $1,000 to $100,000

“Class 1” misdemeanor

6 months to 1.5 years in county jail

And/or a fine of $500 to $5,000

Unlawful possession of more than 4 grams of any schedule I or II controlled substance

3

“Class 4” felony

2 to 6 years in prison

And/or a fine of $2,000 to $500,000

“Class 6” felony

1 year to 1.5 years in prison

And/or a fine of $1,000 to $100,000

Unlawful possession of 2 grams or less of methamphetamine

“Class 6” felony

1 year to 18 months in prison

And/or a fine of $1,000 to $100,000

“Class 1” misdemeanor

6 months to 1.5 years in county jail

And/or a fine of $500 to $5,000

Unlawful possession of more than 2 grams of methamphetamine

“Class 4” felony

2 to 6 years in prison

And/or a fine of $2,000 to $500,000

“Class 6” felony

1 year to 1.5 years in prison

And/or a fine of $1,000 to $100,000

Savings in state expenditures on incarceration costs will be reallocated to substance abuse treatment. Additionally, the state is required to develop a training program for trauma-informed substance abuse treatment, which will then be made available to licensed substance abuse treatment programs; such treatment attempts to directly address and treat trauma in substance abuse programs because trauma and substance abuse so often go hand-in-hand.

1 Colo. Rev. Stat. §§ 18-18-203 (Schedule I); 18-18-204 (Schedule II); 18-18-206 (separate marijuana offenses).

2 Ketamine (a schedule III drug), and flunitrazepam (“Rohypnol” – a schedule IV drug) are also penalized under this provision.

3 Id.

DRAFT 4/2/2012 7:33 AM For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

Colorado Context: Data from the Colorado Division of Criminal Justice indicates that, of drug offenders sentenced to prison between 2010 and 2011, 60% (310 people) were convicted of possession charges; imprisoning these individuals costs the state roughly $10 million per year ($32,000 per person).4 National Context: In the past decade, numerous states, including Washington5 and Kansas,6 have been revising drug laws to lessen sentences and provide additional substance abuse treatment. In 2010, Kentucky reduced penalties for “simple possession” of controlled substances.7 Georgia’s house and senate recently passed legislation that would reduce prison sentences for drug possession and increase funding allocated to substance abuse treatment programs.8 California is currently considering almost identical legislation to S.B. 12-163, making possession of a controlled substance a misdemeanor, rather than a felony.9 Bill Provisions: S.B. 12-163 would:

Reduce, from a class 6 felony to a class 1 misdemeanor, the crime of possession of less than 4 grams of a schedule I or II controlled substance, or possession of less than 2 grams of methamphetamine;

Reduce, from a class 4 felony to a class 6 felony, the crime of possession of over 4 grams of a schedule I or II controlled substance or more than 2 grams of methamphetamine;

Require the resulting correctional savings to be reinvested into one of two drug treatment funds (depending on the passage of S.B. 12-104), and that monies fund substance abuse treatment programs for individuals on probation, parole, or in correctional institutions;

Develop a training program for trauma-informed substance abuse treatment in the Department of Human Services (DHS), and make the program available to licensed substance abuse treatment programs, and,

Conduct a review, two years after enactment, regarding the act’s impact on jail populations. Fiscal Impact: In FY 2012-13, S.B. 12-163 will require an additional one-time expenditure of $17,500 by DHS on the trauma-informed substance abuse training program. However, it is estimated that the Judicial Branch and the Office of the State Public Defender will save approximately $1 million due to reduced numbers of prisoners, and $990,818 of this savings will be appropriated to substance abuse treatment programs. Additionally, state revenue is expected to increase by about $20,000 due to increased drug penalty collection rates, and this money will also be put towards substance abuse programs. Greater cost savings and revenues are expected in future years, because of the lag time for crimes to be committed, investigated, and charged, and defendants to be tried, convicted and sentenced. For example, an estimated additional $2.2 million will be saved by the state in FY 2013-14 (and much of this will be transferred to substance abuse treatment programs).10 4 Ivan Moreno, Colorado lawmakers Seeking to Reduce Drug Possession Penalties, THE DAILY CAMERA (March 20, 2012),

http://www.dailycamera.com/state-west-news/ci_20219226/colorado-lawmakers-seeking-reduce-drug-posssession-penalties. 5 Allison Colker, Sentencing Reform and Diversion: A Combined Approach, THE NAT’L CONFERENCE ON STATE LEGISLATURES (Dec. 31,

2004), http://www.ncsl.org/issues-research/health/sentencing-reform-and-diversion-a-combined-approa.aspx. 6 Id.

7 2011 Kentucky Reforms Cut Recidivism, Costs: Issue Brief, PEW CENTER ON THE STATES (July 2011),

http://www.pewcenteronthestates.org/uploadedFiles/2011_Kentucky_Reforms_Cut_Recidivism.pdf, at 4. 8 § 3-7A; http://www.legis.ga.gov/Legislation/20112012/125680.pdf (bill passed both House and Senate in March of 2012).

9 http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_1501-1550/sb_1506_bill_20120224_introduced.pdf (bill referred to

committee in March of 2012). 10

Jessika Shipley, Fiscal Note: S.B. 12-163 (March 27, 2012), http://www.statebillinfo.com/bills/fiscal/12/SB163_00.pdf