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May 24, 2010

Colorado reducing penalties for certain drug possession crimes

Providing an interesting sign of somewhat different sentencing times, this AP story reports on a new Colorado law that reduces some sentencing terms. The piece is headlined "CO Penalties For Some Drug Possession To Decrease," and here are the basics:

Penalties for some illegal drug use and possession will decrease in Colorado, with more focus placed on treatment and rehabilitation under a bill expected to be signed by Gov. Bill Ritter.

Under the bill, testing positive for drugs drops from a felony to a misdemeanor, while possessing drugs such as heroin, cocaine and Ecstasy for personal use would carry a maximum sentence of 18 months in prison instead of six years....

The bill also increases penalties for drug dealers and manufacturers. Ritter was expected to sign the bill Tuesday at a Lakewood law enforcement training center.

"It makes a distinction that there are those individuals that prey on the addictions of others — the distributors, the sellers, the makers — versus those who are addicts who are being driven by their addiction," said Department of Public Safety Executive Director Peter Weir.

The bill commits $1.5 million of expected savings in incarceration costs to treatment and rehabilitation. In coming years, the changes in sentencing, probation and parole were expected to save the state $3.6 million a year.

Under the bill, dealers and manufacturers of illegal drugs face a felony charge carrying a prison term of up to 12 years. Those who import drugs into the state or use guns face up to 48 years in prison.

The bill also increases penalties for dealing to minors and adds a minimum four-year prison sentence for adults who give any amount of marijuana to a child under the age of 15.

Ritter was also expected to sign legislation giving judges greater discretion in allowing nonviolent offenders to be put on probation; require minimum jail time for repeat drunken driving offenders; and create guidelines to determine which prisoners are eligible for parole.

Colorado Attorney General John Suthers called the changes "pragmatic."

May 24, 2010 at 09:53 PM | Permalink

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Selected bills (per the Colorado Criminal Justice Reform Coalition):

HB 1023: Concerning Clarifying Civil Liability Regarding Negligent Hiring Practices for an Employer That Hires a Person with a Criminal Record
This law limits the admissibility of evidence of an employee’s criminal history in a civil action against an employer where: (1) the criminal history did not have a direct relationship to the underlying cause of action in the civil case, (2) the criminal record was sealed prior to the acts underlying the cause of action, (3) the criminal history consists of an arrest that did not lead to a criminal conviction, (4) the conviction received a pardon, or (5) the defendant successfully completed a deferred judgment.

HB 1112: Concerning the “Correctional Education Program Act of 1990”
This law sets performance objectives for vocational programs in the Department of Corrections to include that vocational programming be more market-relevant, that participation in programs be considered prior to an inmate’s transfer to another facility, and that DOC include information about vocational programs in its annual report to include vocational programs offered, program enrollment, and completion rates.

HB 1352: Drug Sentencing Reform
This bill reduces penalties for the crime of drug use or possession and redirects cost savings in corrections to substance abuse and mental health treatment. The bill also creates enhanced penalties for adults convicted of selling drugs to a minor. The bill also makes two changes to the special drug offender statute (which has an increased sentence range) to exclude “simple possession” from the crime of drug importation and requires a closer nexus to prove that a weapon was used during a drug offense. The bill appropriated the anticipated first year cost savings in averted incarceration costs (approximately $1.5 million) to expand funding for substance abuse treatment for people in the criminal justice system.

HB 1360: Reducing Revocations for Technical Violations
The bill requires the parole board to consider the treatment needs (substance abuse and/or mental health) prior to revoking parole for a technical violation. If the parolee is amenable to treatment and if it is consistent with public safety, the parole board may modify the conditions of parole (in lieu of revocation) and require participation in a residential or outpatient treatment program. The bill reduces the maximum time a revoked parolee can be re-incarcerated in prison for a technical parole violation to 90 days (from the current statutory cap of 180 days) if the parolee was assessed as lower than high risk using a research-based risk assessment instrument and the parolee’s underlying conviction was not for a crime of violence, menacing, or stalking. The current 180-day statutory limit on the period of re-incarceration will be retained when the parolee is assessed as high risk or is revoked to a community return to custody facility or community corrections facility. The bill also expands eligibility for placement in a community return to custody facility for a parolee revoked for a technical violation if the underlying conviction was for a class 4 felony, excluding crimes of violence and stalking. First year cost savings from this bill in averted incarceration costs (approximately $4.5 million) was allocated for re-entry support and treatment services for parolees as part of the 2010-11 state budget.

HB 1374: Changes to Parole
This bill: (1) changes the statutory parole guidelines and requires the parole board to use structured decision-making in both release and revocation hearings; (2) requires the parole board to make an annual presentation before the House and Senate judiciary committees; (4) clarifies eligibility for the enhanced earned time that was created last year in HB 09-1351; and (5) repeals some archaic language in statute that mandates the arrest of a parolee under certain circumstances (e.g., if the parolee is in a county where there is a correctional facility without permission of the parole officer).

SB 06: Concerning Reductions in Barriers to Obtaining Identity-Related Documents
SB 6 waives the payment of the fee to obtain an identification card for those referred by a county department of social services or those referred by a county jail, the Department of Corrections, or the Division of Youth Corrections. The bill also restores the authority of a district court to allow a person with a criminal record to legally change their name if such name change is necessary to obtain an identification card. Prior to ordering the name change, the petitioner must meet multiple requirements and interested parties must be notified.

SB 159: Concerning Defendant Statements at a Community Corrections Hearing
SB 159 makes it mandatory that a community corrections board accept a written statement from an inmate if it is timely submitted by the inmate to the DOC case manager so that it can be included in the initial electronic referral made by DOC to a community corrections board. Community corrections boards will have the discretion whether to accept a written or oral statement by a third party on behalf of an inmate. Community corrections boards will be required to develop written policies that are publicly accessible regarding written statements or oral presentations by victims or inmate representatives regarding an inmate’s transitional referral to community corrections.

HB 1090: Concerning the Punishment for a Person Who Is Convicted of Driving a Motor Vehicle with Knowledge That His or Her Driver’s License Is Under Restraint
This bill eliminates the mandatory 5-day jail sentence for a person who is convicted of driving a motor vehicle or off-highway vehicle upon any highway of the state with knowledge that his license or privilege to drive is under restraint for any reason other than conviction of driving under the influence (DUI), driving while ability impaired (DWAI), or underage drinking and driving.

HB 1201: Concerning Duties Related to Peace Officer Contacts
This new law requires that, prior to conducting a consensual search of a person, personal effects, or vehicle, a peace officer shall first advise the person that they are being asked to voluntarily give consent to search and may refuse the request. After such advisement, a peace office may only conduct the search if the person subject to the search gives either oral or written consent. This new law does not apply to a valid search incident to a lawful arrest or to a search for which there is a legal basis which includes, but is not limited to, searches in correctional facilities, jails, community corrections facilities, mental health facilities or searches of a person on probation or parole by a probation or parole officer when such searches are a condition of supervision.

HB 1338: Concerning the Eligibility for Probation of a Person Who Has Two or More Prior Convictions
This legislation changes the two-prior felony statute that makes a defendant with two prior felonies ineligible for probation without the district attorney’s consent. This bill requires district attorney consent only if the current charge or one (or more) of the prior convictions was for a specific offense including: first or second degree murder, manslaughter, first or second degree assault, first or second degree kidnapping, sexual offense, first degree arson, first or second degree burglary, robbery, aggravated robbery, or a felony offense against a child.

HB 1373: Sentencing Changes For Escape Crime
Under current law, a broad range of scenarios can be considered escape which requires the court to impose a mandatory consecutive sentence. HB 1373 excludes diversion clients in community corrections and parolees on intensive supervision from the mandatory consecutive sentencing requirement if convicted of escape, although judges retain the authority to impose a consecutive sentence in any given case. People on “inmate status” will still face the mandatory consecutive sentence, which includes people in secured correctional facilities, work release, and transition clients in community corrections.

HB 1413: Concerning Juveniles Who Are Tried as Adults, and Making an Appropriation in Connection Therewith.
For purposes of direct file, the bill increases the minimum age of the defendant from 14 to 16 years, except in those cases where the defendant is charged with first degree murder, second degree murder or a sex offense. At least 14 days prior to filing the charges in district court, the district attorney must file the charges in juvenile court with a notice of decision on direct file. The bill lists the criteria that the district attorney must consider in determining whether to file charges in adult court against a juvenile. The district attorney must submit a written statement listing the criteria relied upon in deciding to direct file. The bill also permits a juvenile convicted in district court of a class 2 felony (non sex offense) to be eligible for sentencing to the youthful offender system.

SB 189: Concerning Authorization for Government Agencies to Approve Clean Syringe Exchange Programs to Reduce the Spread of Blood-Borne Disease
The bill gives authority to a county board of health or district board of heath to approve a clean syringe program proposed by county or district public health agency provided that certain procedures are followed and community stakeholders are consulted. One or more counties represented on a district board of health may at any time opt out of a proposed or approved program. An employee or volunteer of such program will be exempt from drug paraphernalia laws.

SB 193: Concerning the Safe Treatment of Pregnant Persons in Custody
The bill limits the use of restraints on pregnant women in custody or confined in prisons, city/county jails, juvenile detention, or department of human services facilities. Corrections staff will not be permitted to use restraints of any kind on a pregnant woman during labor and delivery unless exceptional circumstances exist. Correctional staff is required to use the least restrictive measures of restraint during postpartum recovery and transport to/from the medical facility.
Other criminal justice reform bills

HB 1065: Concerning a Prohibition Against Counting Any Time a Juvenile Spends on Escape Status Toward Completion of the Juvenile’s Commitment
If a juvenile committed to the Department of Human Services escapes from a facility, the time the juvenile is on escape status will not be counted toward service of the term of the commitment.

HB 1081: Concerning Money Laundering
Under current law, the crime of money laundering is limited to the Controlled Substances Act. The bill relocates the money laundering statute from the Controlled Substance Act to the fraud statute and includes money laundering in the definition of racketeering activity for purposes of prosecution under the Colorado Organized Crime Act.

HB 1089: Concerning Placement After a Parole Revocation of a Parolee Who Is A Sexually Violent Predator
Under current law, a parolee who is revoked from parole for a technical violation and who is under sentence for a conviction of a nonviolent class 5 or class 6 felony must be placed in a community return to custody facility (CRCF), which are DOC contract beds in community corrections facilities. This law authorizes the parole board to send an otherwise CRCF eligible parole violator to prison for a technical parole violation if s/he was designated a sexually violent predator.

HB 1104: Veterans’ Treatment Court
The bill authorizes the state court administrator to apply for federal grant funds on behalf of the state for the establishment, maintenance or expansion of veterans’ treatment courts. The bill also authorizes the chief judge in the judicial district to establish a program for the treatment of veterans and members of the military.

HB 1109: Concerning the Availability of Workers’ Compensation to Jail Inmates Who Are Working For a Program That Has Been Certified By the Federal Prison Industry Enhancement Certification Program
Federal law requires that in order to participate in the federal prison industry enhancement certification program (PIECP), inmates in the program must have workers’ compensation benefits available to them. HB 1109 complies with this federal law by requiring PIECP to carry workers’ compensation insurance and defining a jail or department of corrections inmate participating in a PIECP as an employee of that program for purposes of workers’ compensation eligibility. Public entities are permitted to select more than one method of workers’ compensation insurance.

HB 1215: Concerning the Use of Cash Bond Deposits After the Discharge of the Bond To Satisfy Outstanding Court-Ordered Debts
When a defendant deposits funds with the court for purposes of making bond, HB 1215 allows a court to apply these funds toward the payment of fines, fees, costs, and surcharges assessed against the defendant. If the depositor is someone other than the defendant, the law would allow the court to apply the funds toward payment of court-ordered debt with written consent of the depositor. If the amount of the deposit is greater than the amount owed, any balance will be returned to the depositor.

HB 1277: Concerning An Extension of the Prohibition Against Sexual Conduct in Correctional Institutions
Current law prohibits and makes it a crime for an employee or volunteer of a correctional facility to have sexual activity with an inmate. HB 1277 extends that prohibition to any detention facility, commitment facility, or community corrections program housing juveniles.

HB 1347: Concerning Misdemeanor Penalties for Persons Who Are Convicted of Multiple Traffic Offenses Involving Alcohol or Drugs
It adjusts the penalties for a second offense of DUI, DWAI, and driving as a habitual user of a controlled substance and creates a new set of penalties for a third or subsequent offense. On a second offense, the minimum jail term is set at 10 consecutive days (up to 1 year). If the second offense is within five years of the first offense, the defendant is not eligible for home detention in service of the 10-day mandatory jail term but is eligible for work release or treatment release if he or she was already employed or engaged in treatment prior to incarceration and if the jail allows work/treatment release. For a third or subsequent conviction (in lifetime), the minimum jail term is set at 60 consecutive days (up to 1 year). Home detention is not a sentencing option. All repeat DUI offenders must complete at least two years of probation and as a condition the court must impose a suspended one-year jail sentence, all or part of which may be imposed if the offender violates a condition of probation. Increases the persistent drunk driver surcharge from $50 to $100- half of the revenues will be deposited into the persistent drunk driver fund and the other half into the newly created court-ordered alcohol treatment fund. A first-time DUI offender with a blood-alcohol level of .20 or higher will also be subject to the mandatory 10-day sentence.

SB 54: Concerning the Provision of Educational Services For Juveniles Against Whom Charges Have Been Filed in District Court.
The bill requires a school district to provide educational services during the school year to a juvenile being held, pending charges as an adult, in a jail within the school district. The school district is also required to comply with the “Individuals with Disabilities Education Act” if the juvenile has a disability. There are a number of exceptions to this requirement.

Posted by: ohwilleke | May 25, 2010 6:01:16 PM

The state of Colorado should not lessen the penalties on illegal drugs. The cause of it will create more related drug crimes as well as addictions. The abundance of drug related crimes can not be stop unless there are punishments that are intensive. In this case, Colorado shouldn't decrease penalties on illegal drugs.

Posted by: William A. Kennedy | Jun 16, 2010 3:51:33 AM

My friend has been an active active for years. He first began shooting up heroin in prison. I agree that the sentencing shouldn't be reduced but believe that it is not such a black and white issue. We need to treat the problem and locking them up isn't the soltuion. Alternatives such Drug Court or Treatment should be the first option. With stiff penalties for failure.

Example: You are looking at a 6 year sentence. You can go to treatment (less expensive to the community resources than prison) and do 2 years plus a 2 year follow up. If you complete the program then you're done. If you fail the program you will do the original 6 years plus the time that you spent in the treatement center.

I have had so many friends that were given an option such as the above. Many picked jail, but the judge picked treatment for them instead. The average sober time for them now has been 10 years. My friend who has been sentenced to prison has 30 days in 10 years.

Posted by: Cris | Dec 1, 2010 5:48:33 PM

My son was sentenced in colorado to 8 years for possion of drugs (sm amount). He has a sm record of petty crimes. He has served 5 of his 8 years and just had his first parole hearing which he was turned down flat. He was told he was a carrer criminal and a drug user! I am not sure how he can be a drug user if he has not used in over 5 years!(he has not used in prison) Now he is told he can not have another hearing until 4/12. A full year. Anything I can do? I thought non violent offenders got a hearing every six mos? Can this hearing be overturned? We ask for parole to the state I live in but that fell on deaf ears.

Posted by: P Hackbarth | Apr 22, 2011 11:16:30 PM

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