March 14, 2018 — Felony drug filings are up dramatically across the state, contributing to an increase in demand for prison space, a March 12 report from the Colorado Criminal Justice Reform Coalition indicated.
According to the coalition’s data, the local 7th Judicial District is no exception. The data show a 165-percent increase in felony drug case filings between 2012 and 2017. All 22 judicial districts show an increase, as small as 1 percent in the 5th Judicial District, and as high as 256 percent in the 15th, per the report.
“I’ve never seen an increase like this,” Christie Donner, the coalition’s executive director, said March 13.
When the coalition looked deeper, it found an increase across all judicial districts, irrespective of whether the districts were rural or urban.
“Holy cow, what’s going on? I’m shocked,” said Donner, referring to what the reform coalition began finding.
The report states Colorado’s “war on drugs is a major driver of the ‘need’ for more prison beds and it is having a particularly dramatic impact on women.”
But the report may have oversimplified the situation, with respect to what could be driving the prison population, District Attorney Dan Hotsenpiller said.
“The truth is it is a false question to ask whether the war on drugs has failed. The criminal justice system is far more complicated than the report assumes when it incorrectly implies that it is always wrong when a person convicted of drug possession is sentenced to prison,” said Hotsenpiller, who was still reviewing the report.
“There are many reasons why such sentences are imposed, including because the person committed numerous other crimes.”
The increase in filings doesn’t reflect a change in law enforcement focus or his own filing standards, he said. Rather, the increase reflects a rise in drug felonies being committed in the judicial district.
“For us in the 7th, methamphetamine continues to be the primary drug we see that results in contact with police,” Hotsenpiller said.
The coalition’s report indicates most filings have been for simple possession charges.
“Reopening prisons to, in part, accommodate an influx of low-level drug offenders, is the opposite of what the General Assembly envisioned when it enacted SB 250 in 2013,” the report states.
That legislation was intended to reform drug laws, in part to reserve prison space for high-level dealers while prioritizing treatment and community corrections-type options for those charged with possession, according to the coalition.
“Five years later, it is clear it did not go far enough,” the report says, taking particular note of the Colorado Department of Corrections’ soaring budget, which is closing in on $1 billion for the first time.
The 2013 legislation reclassified drug offenses into drug misdemeanors and drug felonies.
The report explains each classification was further split into levels to reflect the severity of offense: A drug misdemeanor 1 charge is more serious than a drug misdemeanor 2. The drug felony range is from 1 to 4, with 1 being the most serious.
Per the coalition report, in the 7th Judicial District, 84 percent of drug cases in 2017 were at the drug felony 4 level; both drug felony 3 and drug felony 2 crimes accounted for 5 percent of the filings and 6 percent were filed as a drug felony 1 offense.
“Of the drug felony cases filed in the district in 2017, about five out of six were for possession or sharing,” the report found.
Hotsenpiller explained sentencing takes into account more than the charge on which a person was convicted.
“Since 2012, no person, male or female, has been sentenced to prison on a DF4, a simple drug possession charge, without the court finding that all other sentencing options have been exhausted, or have not worked,” he said, citing state law that requires the court to find all other reasonable and appropriate sanctions have been attempted, or have failed to work.
This requirement applies even when a defendant takes a plea deal.
“Therefore, any increase in prison sentences for drug possession charges reflects an increase in drug crime and an increase in offenders who have not been rehabilitated, despite being placed on probation or in community corrections,” Hotsenpiller said.
Speaking of the overall report, Donner said she was especially struck by the 29-percent increase in the number of women sentenced to prison.
“I never in a million years would’ve been able to predict that we would see the women’s prison population spiking,” she said.
“ … We just don’t know why this (overall increase) is happening. We just wanted to elevate awareness that it is happening. It is not a monolithic story. We didn’t see any clear pattern.”
Among factors driving the report was the DOC’s request for 1,000 more prison beds, in part because of an increase in the drug filings. When the coalition looked at the matter, its analysts found such filings “going through the roof,” per Donner, who also said it’s not the case that simply more people are using drugs in the 7th and other jurisdictions.
“It’s not all crimes seeing this kind of increase. We’re not trying to say we have all the answers,” she said.
“ … There’s a lot that’s happening right now and nobody has their hands on it.”
Treatment alone will not combat the scourge of drugs, Hotsenpiller said.
“The reality is, we need both an effective and flexible criminal justice response to drugs and a robust public health system that provides long-term, sustained treatment for addictions,” he said.
“Colorado chose to lessen our drug laws without first building the health and human services needed to avoid and treat serious drug abuse. This report shows the price we are paying for this mistake.”
Donner agreed there should be more investment in treatment, but said steps were taken in that regard both prior to and after the 2013 reforms.
Among those she cited were a 2010 measure that reformed drug possession laws and reinvested the savings in prison costs into treatment and a 2011 law that consolidated resources for treating offenders.
Donner reiterated Monday’s report is not intended to provide definitive answers.
“We’re hoping this report will generate conversations locally and statewide about what’s going on in our communities,” Donner said.
The report drew on information from the Colorado General Assembly’s appropriations reports, the state budget, analyses of felony drug filings as prepared by the Office of the Colorado State Public Defender; felony drug filings as recorded by the Colorado Division of Criminal Justice, and “Factors Influencing the Increase in Prison Population,” also by the division of criminal justice.