HB 1283: Prescription drug monitoring bill does more harm than good

March 19, 2014 by jlongo · Leave a Comment
Filed under: Drug Policy, Opinion Editorials, Publications 

by Ari Armstrong

Prescription drug abuse is a serious problem, sometimes a fatal one. But the answer is not for the government to monitor and harass people who suffer from devastating pain — and make it harder for them to manage their pain — in a misguided attempt to save drug abusers from themselves. Unfortunately, that is precisely the effect of House Bill 1283, sponsored by Rep. Beth McCann of Denver.

At issue is the Colorado Prescription Monitoring Program, operated by a private corporation, Health Information Designs. According to HID, “The program allows practitioners and pharmacists to gather information about the patients they serve and to ensure that their prescribing and dispensing is appropriate for the circumstances presented.”

In other words, doctors and pharmacies record a patient’s prescription information in the database, and then these records are available to numerous health professionals, as well as to government agents by warrant.

The Legislature originally established the program in 2005, mostly using funds from the Justice Department. The Legislature reauthorized the program in 2011, when it received a $60,000 grant for it from Purdue Pharm, maker of OxyContin, The Denver Post reports. And as The Post reports, the program also allows the government to charge registered prescribers $25 per year.

McCann’s bill seeks to expand the registry to, among other things, allow government officials to access some of the information in the database “for public health purposes;” allow law enforcement to use the database to investigate individual pharmacies; expand the number of people with access to a patient’s personal files; and force “prescribing practitioners and pharmacists to register and create user accounts with the program.”

True, prescription drug deaths are a problem — the Centers for Disease Control and Prevention reports that, in 2008, more than 20,000 people died from prescription drug overdoses, nearly 15,000 of which involved pain medications. (In speaking to 9News, McCann overstated the magnitude of the problem, apparently botching the findings of a first and second report.) But the registry has little effect on the problem.

For starters, these drug-related deaths include those who commit suicide, obtain their prescription drugs legally and mix their prescription drugs with other drugs such as alcohol.

Moreover, drug abusers who have trouble getting one type of drug often switch to another type. Finally, some drug abusers steal their drugs, often from relatives — the registry would not fix that problem.

Even if and to the degree the registry curbs drug abuse, it is not the government’s proper role to save people from their own irresponsible decisions (or to relieve parents of the responsibility of monitoring their own children) — particularly when doing so causes enormous suffering among those with serious injuries and diseases (such as terminal cancer). Undoubtedly, clamping down on prescription drugs makes it harder for those who truly need pain medications to get them.

McCann told 9News she thinks it’s “suspicious behavior” when people “show up in an emergency room and talk about how much pain they’re having.” News flash: Usually when people go to the emergency room complaining of serious pain, it’s because they have serious pain. They should not be presumed guilty of drug abuse by doctors fearing government reprisals.

In a 2012 Denver Post story, Michael Booth wrote about Drug Enforcement Administration complaints of low registry use. No doubt the DEA wants to access the registry to pursue criminal prosecutions. Even assuming the most humanitarian motives on the part of the DEA, the agent quoted by Booth grants that a big reason doctors and pharmacies don’t participate is they don’t have the time. “Encouraging” them to use the registry will increase their costs and, on balance, incentivize doctors to err on the side of not prescribing pain drugs — even if a patient truly needs them.

Drug abuse is a tragedy, but one caused by the people abusing the drugs. Drug abuse should be addressed by the abusers and by caring friends and counselors, not by politicians, bureaucrats and law enforcement agents. Another tragedy is letting people suffer in severe pain because the government is cracking down on drug prescriptions.

It is immoral for the government to punish the responsible for the sake of the irresponsible.

Colorado author and blogger Ari Armstrong wrote this for the Independence Institute, a free market think tank in Denver. He writes at ariarmstrong.com.

Don’t let Clements tragedy derail Colorado’s criminal justice reform efforts

April 10, 2013 by mkrause · Leave a Comment
Filed under: Blog, Opinion Editorials, Prison Spending and Sentencing 

By Christie Donner and Mike Krause

The horrific murder of Colorado’s corrections chief, Tom Clements, has raised questions about recent criminal justice reform efforts, and specifically 2011′s Senate Bill 176. However, the great, untold legislative success story of the last five years is the steady, measured and bipartisan progression of criminal justice reforms aimed at having effective and cost-efficient public safety policies.

Let’s not allow a tragedy to undo years of careful work toward sound policy reforms.

For decades, the Colorado Department of Corrections housed a far greater percentage of inmates in “administrative segregation,” or solitary confinement, than the national average. A large and growing percentage of inmates in administrative segregation have a serious mental illness, which raised the question of whether these inmates needed mental health treatment or medication in response to disruptive behavior, not long-term solitary confinement.

Finally, a DOC report indicated that 47 percent of inmates in administrative segregation were released straight to the community onto parole without any “step-down” to help them adjust to society after release. Legislators introduced SB 176 in 2011 to address these issues.

Clements came onto the job about the same time the bill was introduced. He helped create the bill that ultimately became law. As amended, the bill required the DOC to evaluate its use of administrative segregation and submit a report to the legislature the following year. It also allowed inmates in administrative segregation to be eligible for earned time.

Effective prison management and changing inmate behavior requires both consequences for rules violations and incentives for positive behavior and progress. There were no mandates in SB 176, and the DOC has the sole power to determine whether an individual inmate will be awarded earned time or not.

As a respected corrections professional with over 30 years of experience, Clements was well aware of the complexity of running both safe prisons and preparing people for release. He supported SB 176, and it received significant bipartisan support in the legislature.

Colorado adopted a get-tough sentencing approach in the 1980s. The prison population and budget exploded as a result. But simply incarcerating more people is not the only, or always most effective use of public funds to prevent crime, promote public safety, and re-integrate offenders.

Achieving these goals requires much more complicated and sophisticated strategies both within the criminal justice system and beyond. The recent legislative efforts to reform criminal justice practices and sentencing laws have been based on data and research on how best to promote public safety and what has proven to work to prevent crime and reduce recidivism.

Clearly, there are people for whom a lengthy prison sentence is appropriate and deserved. There is also a clear recognition that some failed policies that have been major drivers of the growth in the prison population, like the war on drugs, need to be substantially redesigned.

We also need to remember that almost every person in prison will eventually be released back into society.

The desire for effective criminal justice policy has driven bipartisan support for reforms both in Colorado and across the country, including the conservative Right on Crime project. To be sure, budget considerations have brought the need for criminal justice reform to the forefront and provided motivation to look at an issue many felt was too controversial to touch.

But in the eight years our organizations have been working on criminal justice issues, we have never seen saving money for its own sake as the driving force behind reform. Cost savings to the taxpayers is rather a beneficial byproduct of sound policy changes.

The murder of Tom Clements is a great tragedy. But just as we shouldn’t let tragedies panic us to rush through bad laws and policies, neither should we allow this great tragedy to derail the ongoing efforts towards a more effective and just system.

Christie Donner is executive director of the Colorado Criminal Justice Reform Coalition. Mike Krause is director of the Justice Policy Initiative at the Independence Institute, a free-market think tank in Denver.  A version of this op-ed originally appeared in the Denver Post.

Legislature Has the Chance to Set a Standard on 64

December 26, 2012 by jlongo · Leave a Comment
Filed under: Drug Policy, Opinion Editorials, Publications 

by Harris Kenny and Leonard Gilroy

Last month Colorado voters resoundingly passed Amendment 64 into the state constitution, legalizing both recreational marijuana and industrial hemp. So far, realizing the will of the voters is on track, but implementation risks threaten to undermine the intentions behind Amendment 64. Policy makers are contending with thriving black markets and gray markets (goods or services that while legal, are still traded outside of any tax or regulatory regime), so it is in their best interests to get this right–even if they didn’t support the initiative in the first place.

The most glaring opposition comes from President Barack Obama, despite his recent opaque comments in an interview with Barbara Walters about how enforcing marijuana prohibition is not a “top priority.” He has tragically escalated the policies of his like-minded predecessor, George W. Bush, for four years by taking hostile actions against legal, legitimate medicinal marijuana businesses in direct contradiction to his campaign promises. Continued hostility should be expected from the Obama administration until proven otherwise. Fortunately, Colorado voters aren’t doing this alone. Gov. John Hickenlooper recently announced a 24-member task force assigned with recommending needed legislative actions. Congresswoman Diana DeGette is sponsoring a bill (HR 6606) with bipartisan support that would prevent federal statutes from pre-empting state laws on marijuana. Voters in Washington State passed a similar marijuana legalization initiative; meaning two states are waging this fight–for now. Correspondingly, major national pollsters, including Gallup, Angus Reid and Public Policy Polling, have found a majority of Americans support legalizing recreational marijuana.

Amendment 64 allows possession and transfer without remuneration of up to one ounce of marijuana, and home cultivation of up to six marijuana plants for adults over 21. It also calls for Colorado policy makers to adopt laws taxing and regulating marijuana, a critical step towards creating a legal, commercial market. But a failure of the legislature to follow through could work to perpetuate prohibition-enabled black and gray market operations.

The best way for policy makers to avoid this scenario would be to swiftly establish the tax and regulatory components of the new system, so marijuana is regulated akin to alcohol. Unlike alcohol, though, the policies must be clear and effective on both sides of the cash register. Colorado’s regulations on alcohol are no model. The state has anachronistic regulations on alcohol, such as forbidding franchising for liquor store owners, preventing direct sale from wholesalers to consumers, and forcing grocers to sell lower concentration alcohol. Sensible regulations on both sides of the cash register terrify black market operators (like drug cartels and gangs), because it means competition from legitimate businesses. For consumers, the biggest issue will likely be additional legislation on driving under the influence of marijuana, even though it is already illegal. A bill is being written to prohibit driving with five nanograms of tetrahydrocannabinol (THC)–the main psychoactive ingredient in marijuana–per milliliter of blood. This proposal is problematic. Inactive THC can stay in one’s system for days or weeks, so the test can’t differentiate past use from present intoxication. As the bill is still being written, new language reportedly would allow drivers to prove their sobriety. Nonetheless, many remain justifiably wary.

Predictably, many are salivating at the thought of new tax revenue that hasn’t even been collected. Besides new state and local sales tax revenue, the legislature is tasked with selecting an excise tax rate of up to 15 percent. However, the Taxpayer’s Bill of Rights (TABOR) amendment to the state constitution requires voters to approve all tax increases. The attorney general has indicated the language in Amendment 64 “did not comply” with TABOR. Hence, separate voter approval of the excise tax is expected. Colorado imposes relatively low excise taxes on alcoholic spirits and beer (44th and 46th respectively, among all states, according to the Tax Foundation). Low excise taxes would be prudent for marijuana, too. The higher the excise taxes, the greater incentive black and gray market operators have to stay in business. Black and gray market operators have proven resilient throughout the so-called “War on Drugs,” while policy makers obstinately continue ineffective prohibition that squanders countless dollars and ruins lives. Instead, the people of Colorado tasked policy makers with adopting more sophisticated drug policy by legalizing recreational marijuana and industrial hemp. While early signals are encouraging, implementation risk looms large, and voters are watching.

This article was originally published in the Colorado Springs Gazette, December 21, 2012.

High Rate of Colorado Pleas Undermines Right to Trial by Jury

June 25, 2012 by jlongo · 2 Comments
Filed under: Opinion Editorials, Publications 

by Ari Armstrong

Californian Brian Banks wanted to pursue a professional football career. Instead he spent six years in prison for a crime he did not commit. After he was accused of rape and kidnapping in 2002, reports ABC News, “his attorneys encouraged him to plead no contest instead of going to trial before a jury and risking 41 years in prison.” This year, his accuser recanted.

Banks’ case points to a broader concern. True, often those guilty of crimes plead guilty, thereby saving taxpayers the expense of a trial. But, by threatening the accused with drastically more severe potential penalties if they exercise their right to a trial by jury, prosecutors undermine that right and sometimes compel the innocent to plead guilty.

Colorado criminal statistics for the years 2006 through 2011 show that Colorado prosecutors rely on plea bargains to reach convictions an overwhelming 97.6 percent of the time, according to documents obtained by the Independence Institute through a Colorado Open Records Act request.

According to those documents, only 4,241 felony convictions resulted from a jury trial, or 2.4 percent of the total of 175,015 felony convictions. A total of 6,101 felony cases went to trial, so the conviction rate at trial was 70 percent.

Drug cases accounted for 54,321 felony filings (23 percent) of 238,987 total filings. In terms of convictions, drug cases accounted for 43,034 (25 percent) of the total. Of the 790 drug cases that went to trial, 611 resulted in a conviction, meaning that only 1.4 percent of drug convictions resulted from a jury trial.

The national trend is away from jury trials to plea bargains. The New York Times reported last year that, within nine states that kept statistics, the number of felony cases going to trial has fallen dramatically since the 1970s, when the figure was over 8 percent.

State Public Defender Douglas Wilson sees this is a problem. “Those accused of crimes have had their right to jury trial limited by the Draconian sentencing laws,” he said.

During the past legislative session, Sen. Pat Steadman sponsored an unsuccessful bill that might have influenced some to go to trial rather than plead guilty. Among other things, SB105 would have required courts to notify the accused of the “collateral consequences” of a conviction, such as the rigors of parole and the effects on potential employment.

Steadman said, “I was a big proponent of the fact that people should be on notice of what are the consequences and make a knowing plea agreement if that’s what they’re doing.”

Steadman’s bill, however, would have done nothing to reduce the power of prosecutors to threaten the accused with severe sentences for daring to take their case before a jury. Steadman said of the bill’s language, “I don’t know that it really cuts a great deal in the opposite direction from the heavy-handed pressure of the district attorney.”

A possible broader reform is to limit the difference between the punishments resulting from a plea bargain versus a jury conviction. Yes, this likely would lead to more jury trials and drive up court costs, at least in the short run. It might also cause prosecutors to re-examine weak cases before pushing for a conviction. And it might encourage legislators to rethink some of the activities they criminalize and some of the sentences they allow for various crimes. So be it.

The right to trial by jury is a central feature of Western justice. Following a long tradition of jury trials going back to ancient Greece, the Magna Carta, and of course the U.S. Bill of Rights, Colorado’s Bill of Rights states, “The right of trial by jury shall remain inviolate in criminal cases” (Article II, Section 23).

By giving prosecutors such overwhelming power to pressure the accused into pleading guilty without a trial, the Legislature fails to live up to the spirit, if not the letter, of this provision.

This article originally appeared in the Colorado Springs Gazette, June 23, 2012.

Are the opponents of drug law reform dishonest, ignorant or both?

April 17, 2012 by mkrause · Leave a Comment
Filed under: Blog, Drug Policy, Opinion Editorials 

By Mike Krause

Senate Bill 163 is a modest but important next step in scaling back the worst excesses of the expensive, intrusive and counter-productive War on Drugs in Colorado.  The bill would lower the penalty for simple drug possession from a Class 6 Felony to a Class 1 Misdemeanor.  In other words, possessing small amounts of currently illegal drugs would still be illegal, but without the lifetime punishment a felony drug conviction carries in lost opportunity.  This is a long overdue reform that has some opponents making such hysterical and blatantly false claims about SB 163 that they must be dishonest, ignorant, or maybe a little of both.

An online petition against SB 163, addressed to Governor Hickenlooper and members of both the Colorado house and senate, has been started at the change.org website with the hysterically inaccurate title:  “Stop Senate Bill 12-163 which Decriminalizes hard drugs.”  The petition continues its fabrications:  “Senate Bill 163 will make possession of up to two ounces of hard drugs such as Cocaine, Ecstasy and Methamphetamine a misdemeanor to possess in this state.”  What a pack of nonsense.

To begin, moving simple drug possession from a felony to a misdemeanor is not even close to the same as decriminalization.  A Class 1 Misdemeanor is a serious criminal offense in Colorado.  One for which the penalty could actually result as much time in a jail as you might spend in a prison for a Class 6 Felony.

Moreover, two ounces of Cocaine, Ecstasy or Methamphetamine is a significant amount of drugs that might cost thousands of dollars.  SB 163 addresses possession of small amounts of drugs, two to four grams (depending on type of drug), which is less than the weight of an American nickel.  Possession of two ounces of illegal drugs would obviously remain a serious felony crime.

So it’s not entirely clear if those responsible for the petition are simply lying about what SB 163 does, or if they are just not bright enough to know the difference between a misdemeanor crime and decriminalization, or the difference between ounces and grams.  And as of this writing they have managed to fool nearly thirty people, apparently none willing to do a little basic research on their own, into signing the petition.

Whatever the case, hopefully the lawmakers who receive the petition won’t be fooled by either ignorance or lies about SB 163.

Trust Judges with Juvenile Placements

April 16, 2012 by jlongo · Leave a Comment
Filed under: Opinion Editorials, Prison Spending and Sentencing, Publications 

by Mike Krause and Marc Levin

Juvenile offenders in Colorado are usually tried as juveniles in juvenile courts. But a small portion are transferred to adult courts for trial, as either recognition of the more serious nature of their crimes or due to risk factors suggesting the adult system is better equipped to handle these juveniles.

This divided system is not up for debate — all agree that the criminal justice system is sometimes the best place for a juvenile offender. But Right on Crime’s research indicates that judges are the best public officials to make the determination of which system should handle a juvenile offender, as opposed to the current system where a prosecutor can directly transfer a juvenile to the adult system under the direct-file system.

Judges, as neutral arbiters, are entrusted with many serious decisions in courtrooms across Colorado. Judges are deemed logical, objective overseers of trial determinations in almost every other stage of a criminal case — and juvenile placement should be included in the ambit of judicial trust.

Recently collected data shows that youths who have been transferred to the adult system without judicial consideration are not the most serious offenders. In fact, a 2012 Colorado Juvenile Defender Coalition study found more youths have been sent to adult court through direct file for drugs and other nonviolent crimes than for homicide. Further, some 80 percent of youths transferred without a judge’s oversight had never been placed in a state youth lockup prior to their transfer.

The divided system — with some juveniles eligible for placement in the adult system — works best when adult lockups are reserved for the most serious juvenile offenders, truly the most heinous cases. Further, given the myriad of ways the juvenile justice system can rehabilitate juvenile offenders and turn them from a life of crime, youths should generally be allowed to exhaust their options in the juvenile justice system before being placed in the adult system.

This is because the juvenile justice system is uniquely adapted to the various needs and risk factors involved in a juvenile delinquent’s life. From education to specific treatment and family-oriented interventions aimed at youths, the juvenile justice system has been more successful at rehabilitating juvenile offenders in Colorado and every other state in the nation. And that is the goal in every justice system interaction with a juvenile — rehabilitation to produce a law-abiding citizen, rather than a career criminal. Moreover, Bureau of Justice Statistics data has found youths are far more likely to be sexually and physically abused when placed in adult prisons.

In addition, under Colorado’s blended sentencing scheme, serious juvenile offenders sentenced in juvenile courts can begin their term in a juvenile facility and be transferred to adult prisons to carry out the rest of their sentence. This permits serious juvenile offenders to still receive long terms to fit their criminal actions while not being shut out of the age-appropriate system created for them. Pending legislation this session would allow even longer blended sentences.

When Colorado lawmakers created the direct-file option, the expectation was that it would be used primarily for homicide cases. However, less serious offenders and juveniles who never spent time in a juvenile facility being sent to the adult system indicate the current system has gone too far and, like other governmental functions, needs appropriate checks and balances.

Accordingly, we believe that Colorado’s judges should be given the ability to determine the most appropriate placement for a juvenile offender. Judges are trusted to make similarly serious determinations in Colorado’s justice system, and this trust should be extended to juvenile placement.

This article originally appeared in the Denver Post, April 6, 2012.

Judicial review of direct file in Colorado good for juvenile justice

March 10, 2012 by mkrause · Leave a Comment
Filed under: Opinion Editorials, Prison Spending and Sentencing 

By Mike Krause

On March 7, House Bill 1271 passed out of the Colorado House Judiciary Committee by a 9-2 vote.  The bill would allow, with certain exceptions, judicial review of district attorneys’ decisions to charge juveniles as adults in criminal cases.  Currently, DAs have unlimited discretion to “direct file” against juveniles without review by a judge.  The bill now heads to the appropriations committee.

The following is a letter sent in February to Colorado lawmakers on the need for judicial oversight of direct file by myself and Marc Levin from our sister think tank, the Texas Public Policy Foundation (TPPF). The letter is on behalf of the Independence Institute, TPPF and Right on Crime:

Dear Colorado Policymakers,

We are writing to share our perspective on modifications to Colorado’s direct file
policy, which would ensure judicial review of juvenile cases transferred to criminal court.

As you know, the Independence Institute is a free market think tank that has been
providing research and analysis to Colorado’s policymakers for almost thirty years. The
Independence Institute seeks to empower individuals and enhance personal and economic
freedom. The Institute’s Justice Policy Initiative researches the impact of criminal justice
policies and practices on prison spending, law enforcement priorities and the lives and
liberties of Coloradans.

In that same vein, Right on Crime works to advance conservative, principled solutions that are proven to reduce crime, lower costs and restore victims. Right on Crime is a national initiative led by the Center for Effective Justice at the Texas Public Policy Foundation, one of the nation’s leading state-based conservative think tanks. The Texas Public Policy Foundation’s mission is to promote and defend liberty, personal responsibility, and free -enterprise by educating policymakers with academically sound research and outreach.

Through TPPF’s Center for Effective Justice, which researches policies that cost effectively
protect public safety, restore victims, and reform offenders, we have been at the
forefront of criminal justice initiatives in Texas that have gained national attention by
reducing both the incarceration rate and, most importantly, the crime rate. These principles
are anchored by our Statement of Principles, signed by some of the nation’s most respected
conservative leaders.

The Independence Institute, TPPF, and Right on Crime do not endorse specific
legislation, but we would like to briefly provide our perspective on reformation of
Colorado’s direct file policy.

Under current law, prosecutors have the legal authority to unilaterally transfer a
juvenile delinquency case to criminal court without judicial review. Such a decision cannot
be appealed by the juvenile.

The unique circumstances surrounding juvenile delinquency require care on the part of criminal justice system. Research has found juvenile offenders are especially capable of reform and rehabilitation, and the juvenile justice system is uniquely positioned to both hold youths accountable and change their ways.

Further, even serious juvenile offenders often benefit from the programming and
services available only in juvenile detention facilities. Facilities tailored to juveniles are
typically more effective and safe for these offenders, and the decision to transfer a juvenile to criminal court forecloses these opportunities.

For these reasons, we believe that judges should have a role from the outset in
determining the proper venue for the adjudication of a juvenile. Certainly, taking advantage
of judicial expertise in making such difficult decisions does not preclude prosecutors from
obtaining a judicial determination that some youths’ criminal actions warrant transfer.
However, judges as neutral arbiters are best situated to objectively consider the facts and
circumstances of each case.

This is the procedure in Texas, where the process of trying a juvenile’s crimes in
criminal court, called certification, must be judicially directed. The judge is required to find
both probable cause the offense was committed, but also that the welfare of the community
demands criminal proceedings, based on the seriousness of the offense or the background of the youth.

Based on a totality of the factors, we believe that judicial review must be an integral
part of transferring a juvenile to criminal court, given both the rehabilitative aspects of
juvenile offending and the specialized programing offered in the juvenile justice system. We
would encourage you to consider these factors in your deliberations regarding Colorado’s
direct file policy.

In conclusion, we wish to thank you for your public service and your consideration of
our perspective on this topic.

2011 Drug Law Reform in Colorado a Mixed Bag

December 2, 2011 by mkrause · Leave a Comment
Filed under: Drug Policy, Opinion Editorials, Prison Spending and Sentencing 

Opinion Editorial

By Mike Krause

In 2010, Colorado lawmakers took a meaningful step towards drug law reform by passing House Bill 1352, which nibbles at the edges of the disastrous War on Drugs by amending some of Colorado’s controlled substance statutes (See my HuffPost Denver piece on HB 1352 here).

And while lawmakers continued that reform momentum in 2011, those efforts were tempered by other bills that expanded an already intrusive and expensive drug law regime that returns questionable public safety value.

For instance, the 2011 Colorado Legislature voted overwhelmingly to create new drug felonies (and thus new drug felons) by passing Senate Bill 134 which added synthetic cannabinoids and the naturally occurring Salvia Divinorum as Schedule I illicit drugs under Colorado’s Uniform Controlled Substances Act.

The Legislature in 2011 also involved itself in human resource decision making by local school districts by passing House Bill 1121, which among other things bars those convicted of a drug felony from employment with a school for five years from the time of conviction.  This despite a lack of any evidence that the hiring of drug felons by school districts is a problem in Colorado.

But in the same session where Colorado lawmakers expanded the scope and reach of Colorado’s drug laws, they also passed several drug law reforms.

In this ivoices.org podcast, I interview Christie Donner about these reforms, and what they are meant to accomplish.  Besides being the Executive Director of the Colorado Criminal Justice Reform Coalition, Christie is also on the Drug Policy Task Force of the Colorado Commission on Criminal and Juvenile Justice (CCJJ).  The three bills were generated out of recommendations of the CCJJ and all have been signed into law by Governor Hickenlooper.

The bills are:

Senate Bill 96, which excludes Class 6 felony drug possession convictions as a qualifying offense to be convicted under Colorado’s habitual offender statute.

House Bill 1064, which establishes a presumption in favor of granting parole to an inmate who is parole eligible and serving a sentence for a drug use or possession felony that was committed before August 11, 2011 (inmates must meet other criteria related to their behavior in prison and criminal history to be eligible for the presumption).

House Bill 1167, which shortens the time frame people convicted of certain drug crimes (schedule is staggered based on the seriousness of the offense) must wait before petitioning the court to seal that criminal record.

For a more thorough explanation of these reforms give a listen here.

Legislature Restrains Its Compulsion to Overcriminalize Colorado

June 7, 2011 by mkrause · Leave a Comment
Filed under: Opinion Editorials, Overcriminalization 
The Colorado legislature this year took a modest, but welcome step towards restraining its own penchant for overcriminalizing the economic and personal lives of Coloradans.  Let’s hope it makes us all a little bit freer from an often overweening state.
House Bill 11-1239 came out of recommendations by the <a href=”http://cdpsweb.state.co.us/cccjj/” target=”_hplink”>Commission on Criminal and Juvenile Justice</a> (CCJJ), passed 64-1 in the Colorado House of Representatives and unanimously in the Colorado Senate, and has been signed into law by Governor Hickenlooper.
A meatier bill might require that every time a legislator seeks to create or expand a punishable offense, they would have to recommend an existing law to pare back or repeal, but it is hard to imagine that actually passing.  As it is, <a href=”http://www.leg.state.co.us/CLICS/CLICS2011A/csl.nsf/fsbillcont3/19FDBF6E4676263187257818007B81BA?Open&file=1239_enr.pdf” target=”_hplink”>HB 1239</a> requires that the fiscal note for any piece of legislation that creates a new crime, or makes changes to the punishment or elements of an existing offense, must include additional information, including:
<blockquote>a) A description of the elements of the proposed new crime, or a description of the new, amended, or additional elements of an existing crime;
(b) an analysis of whether the new crime, or changes to an existing crime, may be charged under current Colorado law;
(c) a comparison of the proposed crime classification to similar types of offenses; and
(d) an analysis of the current and anticipated future prevalence of the behavior that the proposed new crime, or changes to an existing crime, intends to address.
</blockquote>
In this <a href=”http://audio.ivoices.org/mp3/iipodcast481.mp3″ target=”_hplink”>podcast interview</a>, Colorado State Public Defender and CCJJ voting member Doug Wilson notes that in Colorado there are numerous “boutique” crimes (where legislators passed criminal offenses already covered by other criminal offenses) that “really complicated the criminal code.”  Wilson continues that the idea behind HB 1239 is that when a legislator introduces a bill, there will be information provided that shows whether that bill is necessary, what it would cost to enact the new crime, and if not necessary, what other criminal offenses already cover that conduct.
Such “boutique” crimes complicating the criminal code is an excellent example of overcriminalization.
According to the Heritage Foundation’s <a href=”http://Overcriminalized.com” target=”_hplink”>Overcriminalized.com</a> website:
<blockquote>”Overcriminalization” describes the trend in America — and particularly in Congress — to use the criminal law to “solve” every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives.</blockquote>
Overcriminalization is also a trend at the state level.  As I wrote in a 2005 Independence Institute issue paper on <a href=”http://justice.i2i.org/files/2011/02/IP_9_2005_print.pdf” target=”_hplink”>overcriminalization in Colorado</a>:
<blockquote>Colorado currently has some 30,000 laws filling more than 50 volumes of the Colorado Revised Statutes, both criminal and regulatory. Every session, the Colorado General
Assembly passes hundreds of new laws for government to enforce and citizens to both understand and obey.  Aside from the sheer number of laws, the definition of what constitutes a criminal act has changed; often the legislature actually creates new crimes, and thus, new criminals, where no inherent criminality exists. Overcriminalization detracts from the seriousness of the law. This in turn breeds a lack of respect for the law.
Overcriminalization is also a step backwards from the concept of clear and simple rules — essential for dynamic and vibrant economic activity — so that both individuals and businesses can be reasonably sure as to the legality of activity in which they are engaging.</blockquote>
To be sure, the legislature is still free to pass redundant, convoluted and even unnecessary laws that we are all obligated to both understand and follow, but hopefully HB 1239 will provide the information needed to at least slow the growth of overcriminalization in Colorado.
(Originally published in the <em><a href=”http://www.huffingtonpost.com/mike-krause/colorado-restrains-overcriminalization_b_857771.html”>Huffpost Denver</a></em>)

Opinion Editorial

By Mike Krause

The 2011 Colorado legislature took a modest, but welcome step towards restraining its own penchant for overcriminalizing the economic and personal lives of Coloradans.  Let’s hope it makes us all a little bit freer from an often overweening state.

House Bill 11-1239 came out of recommendations by the Commission on Criminal and Juvenile Justice (CCJJ), passed 64-1 in the Colorado House of Representatives and unanimously in the Colorado Senate, and has been signed into law by Governor Hickenlooper.

A meatier bill might require that every time a legislator seeks to create or expand a punishable offense, they would have to recommend an existing law to pare back or repeal, but it is hard to imagine that actually passing.  As it is, HB 1239 requires that the fiscal note for any piece of legislation that creates a new crime, or makes changes to the punishment or elements of an existing offense, must include additional information, including:

a) A description of the elements of the proposed new crime, or a description of the new, amended, or additional elements of an existing crime;

(b) an analysis of whether the new crime, or changes to an existing crime, may be charged under current Colorado law;

(c) a comparison of the proposed crime classification to similar types of offenses; and

(d) an analysis of the current and anticipated future prevalence of the behavior that the proposed new crime, or changes to an existing crime, intends to address.

In this ivoices.org podcast interview, Colorado State Public Defender and CCJJ voting member Doug Wilson notes that in Colorado there are numerous “boutique” crimes (where legislators passed criminal offenses already covered by other criminal offenses) that “really complicated the criminal code.”  Wilson continues that the idea behind HB 1239 is that when a legislator introduces a bill, there will be information provided that shows whether that bill is necessary, what it would cost to enact the new crime, and if not necessary, what other criminal offenses already cover that conduct.

Such “boutique” crimes complicating the criminal code is an excellent example of overcriminalization.

According to the Heritage Foundation’s Overcriminalized.com website:

“Overcriminalization” describes the trend in America — and particularly in Congress — to use the criminal law to “solve” every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives.

Overcriminalization is also a trend at the state level.  As I wrote in a 2005 Independence Institute issue paper on overcriminalization in Colorado:

Colorado currently has some 30,000 laws filling more than 50 volumes of the Colorado Revised Statutes, both criminal and regulatory. Every session, the Colorado General Assembly passes hundreds of new laws for government to enforce and citizens to both understand and obey.  Aside from the sheer number of laws, the definition of what constitutes a criminal act has changed; often the legislature actually creates new crimes, and thus new criminals, where no inherent criminality exists.

Overcriminalization detracts from the seriousness of the law. This in turn breeds a lack of respect for the law. Overcriminalization is also a step backwards from the concept of clear and simple rules — essential for dynamic and vibrant economic activity — so that both individuals and businesses can be reasonably sure as to the legality of activity in which they are engaging.

To be sure, the legislature is still free to pass redundant, convoluted and even unnecessary laws that we are all obligated to both understand a nd follow, but hopefully HB 1239 will provide the information needed to at least slow the growth of overcriminalization in Colorado.

A version of this article originally appeared in the HuffPost Denver

Fiscal Conservatives Should Want Colorado Parolees To Succeed

May 10, 2011 by mkrause · Leave a Comment
Filed under: Opinion Editorials, Prison Spending and Sentencing 

Opinion Editorial

Author:  Mike Krause

In Colorado, recidivism is defined as a return to prison “for either new criminal activity or a technical violation of parole, probation or non-departmental community placement within three years of release.” Colorado’s recidivism rate is fairly high compared to other states, at around 53 percent.

To be sure, when offenders released to parole then re-offend (commit crimes), a revocation of parole (or a new prosecution) and a return to prison is a necessary part of the price we pay for separating criminals from the public.  But technical parole revocations back to prison (where there is not a new crime, but rather some violation of the terms of parole) is an available area for lawmakers to seek out reforms for both cost savings and more efficient use of existing criminal justice resources.

According to the Joint Budget Committee’s FY 2009-10 Staff Budget Briefing for the Department of Corrections:

Technical parole violations (without a new crime) account for almost 30 percent of the prison admissions to Department of Corrections.  These admissions will cost the State at least $42.1 million during FY 2008-09.  Although the costs associated with these technical parole violators is high, there are few guidelines provided to parole officers to determining when an individual’s parole should be revoked for a technical violation.

In other words, members of the parole board, and individual parole officers, have significant, and mostly unchecked power to drive costs and expenditure of state funds.

In 2010, the General Assembly passed House Bill 1360,  which is intended to reduce revocations for technical violations of parole.  According to an analysis of HB 1360 by the Colorado Criminal Justice Reform Coalition:

In lieu of revocation for a technical violation, the parole board may modify the conditions of parole and require the parolee to participate in a residential or outpatient treatment program.  If parolee is revoked for a technical violation, the maximum time of re-incarceration in prison is 90 days if the parolee was assessed as a lower than high risk and the parolees underlying conviction was not for a crime of violence, menacing or stalking.  A parolee can be re-incarcerated up to 180 days if s/he is assessed as high risk or is revoked to a community return to custody facility or community corrections facility and the underlying conviction was not for a crime of violence, menacing or stalking.

The 2010 Colorado legislature also unanimously passed House Bill 1023 in an effort to start removing barriers to parolees and those with criminal backgrounds in obtaining and keeping employment, a key element both to successful completion of parole and to avoiding re-incarceration for technical revocations due to unemployment.  This law, among other things limits the admissibility of evidence of an employee’s criminal history in a civil action against an employer where “the criminal history did not have a direct relationship to the underlying cause of action in the civil case.”

The 2011 General Assembly passed and Governor Hickenlooper signed into law House Bill 1167, generated out of the recommendations of the Colorado Commission on Criminal and Juvenile Justice (CCJJ). This bill shortens the time frame people convicted of certain drug offenses (schedule is staggered based on seriousness of the offense) must wait before petitioning the court to seal that criminal record.

With HB 1360 and HB 1023 last year, and HB 1167 this year, Colorado lawmakers made very careful steps towards both slowing admissions to prison for technical revocations and lowering barriers to employment for parolees.  The legislature also allowed broader authority to use coerced treatment instead of incarceration when appropriate in an effort to avoid using valuable prison beds unnecessarily.

Future General Assemblies should take advantage of these steps, and continue to take advantage of the expertise and vetting process of the CCJJ, to continue pursuing reforms designed to both increase the ability of parolees to get and keep employment, and decrease technical parole revocations to prison.

This article has been adapted from the Independence Institute Issue Paper, “The Case for Further Sentencing Reform in Colorado.”

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