Commission recommends sentencing reform for nonviolent drug crimes


In 1987, there were 192 drug offenders in Colorado prisons. Today, there are more than 4,000, with drug offenders making up more than a third of the state’s prison population.

Not only do their numbers contribute to the growth of the expensive prison industry, but experts have long questioned the efficacy of locking nonviolent drug users behind bars — a choice that too often adds substantial hardship to offenders’ lives without offering adequate treatment.

This summer, the Commission on Criminal and Juvenile Justice (CCJJ) created a drug policy task force that included representatives from throughout the judicial system, as well as inmate advocates, to re-examine the state’s drug sentencing laws. The task force brought a host of recommendations to the CCJJ, which has approved 29 separate recommendations. Those recommendations will take the form of legislation when the Colorado General Assembly convenes in January.

The bulk of the recommendations downgrade the severity of various drug crimes and increase the amount of controlled substances that can be considered as being for personal use. These changes result in substantial reductions to the time those convicted must spend behind bars and the length of time they serve on mandatory parole. One of the recommendations would set aside any money derived by the legislature from medical marijuana sales for drug treatment programs.

Among the major recommendations the commission hopes to see turned into law include the following:

Create a separate and distinct statute for possession of controlled substances. Under current law, drug possession as well as distribution offenses are included within a single statute.

Increase the threshold that defines possession for personal use from 1 gram to 4 grams for all schedule I and schedule II drugs, except methamphetamine, which would be increased to 2 grams. Personal possession up to those quantities would be lowered to a class 6 felony (sentence range 12 to 18 months). Under current law, possession of over 1 gram of a schedule I drug (like heroin) is a class 3 felony (sentence range four to 12 years) and possession of more than 1 gram of a schedule II drug (like cocaine or methamphetamine) is a class 4 felony (sentence range two to six years).

Repeal felony class aggravation for drug possession so that simple possession would always be a class 6 felony, rather than a higher felony class if the person has a prior drug conviction. For example, under current law, if someone is charged with possession of 1.1 grams of heroin, cocaine or methamphetamine and he has a prior drug conviction, the crime charged could be aggravated to a class 2 felony, which carries a potential sentence of eight to 24 years. Under the approved recommendation, this offense would be a class 6 felony which carries a potential sentence of 12 to 18 months.

Lower the felony classification for possession of more than 4 grams of a schedule I from a class 3 felony (sentence range four to 12 years) to a class 4 felony (sentence range two to six years).

Reduce possession of any quantity of schedule III-V drugs to a misdemeanor, except for flunitrazepam and ketamine, both of which are “date-rape drugs,” which would be treated as schedule I drugs for purposes of crime classification and sentencing.

Reduce the crime classification for drug use of any controlled substance (schedule I-V) to a misdemeanor. Currently, this crime is a class 6 felony.

Narrow the definition of a drug crime “involving a deadly weapon,” which triggers a sentence enhancement, to require that the weapon actually be used, displayed, or possessed on the defendant’s person or within the defendant’s immediate reach, or in a vehicle where the defendant had access in a manner that posed an immediate threat to others during the commission of a drug offense.

The commission also made a host of recommendations that specifically address the use and cultivation of marijuana. The commission recommends increasing the quantity threshold that defines possession for personal use of marijuana from 1 ounce to 4 ounces, reducing the crime classification to a petty offense, and increasing the quantity of marijuana possessed that is a misdemeanor offense from 4 ounces to 16 ounces. Under current law, possession of more than 4 ounces of marijuana is a class 5 felony on a first offense and a class 4 felony on a second or subsequent offense.

The commission recommends reducing the crime classification for possession of any quantity of marijuana concentrate from a class 5 felony to a misdemeanor and reducing the crime classification for cultivation (of up to six plants) from a class 4 felony on a first offense or class 3 felony on a second or subsequent offense to a misdemeanor. Under current law, any cultivation is a felony, even a seedling.

Other marijuana-related recommendations include: lowering the crime classification for distribution of up to 4 ounces of marijuana without remuneration (i.e., sharing) from a class 4 felony to a class 2 petty offense; repealing the felony class aggravation for second and subsequent marijuana convictions for marijuana offenses; reducing the crime classification for distribution of up to five pounds of marijuana from a class 4 felony to a class 5 felony; and setting aside revenues from medical marijuana earned by the legislature to fund drug treatment.

Some of the commission’s recommendations specifically addressed the freedom a judge has to make decisions from the bench, including restoring a judge’s ability to give a probation sentence to someone convicted of a nonviolent offense, even if they have a prior felony conviction. Right now, a judge must order a prison sentence for someone with two prior convictions unless the district attorney agrees to a probation sentence.

The commission also hopes to give judges the freedom to decide whether certain drug offenders will face an additional sentence for walking away from treatment programs or for absconding while on parole. Currently, such sentences are mandatory.

The Independence Institute, the national office of Drug Endangered Children and Colorado Attorney General John Suthers have already indicated their support for these proposed reforms.