Bill Summary for Bill Number SB12-163

Date: 03/28/2012

Final
BILL SUMMARY for SB12-163

SENATE COMMITTEE ON JUDICIARY

Votes: View-->	Action Taken:
Adopt prepared Amendment L.002 (Attachment C). The Adopt prepared Amendment L.004 (Attachment D). The Refer Senate Bill 12-163, as amended, to the Commi	Pass Without Objection Pass Without Objection PASS

01:30 PM -- Senate Bill 12-163

Senator Carroll, chair, called the meeting to order.

Senator Mitchell and Senator Steadman, co-sponsors, presented Senate Bill 12-163. The bill reduces the crime classification and penalties for certain drug-related offenses, as shown in Table 1:

Table 1. Changes in Crime Classification and Penalties for Drug Offenses Under SB 12-163
Offense	Current Classification and Penalty	Proposed Classification and Penalty
Unlawful possession of 4 grams or less of flunitrazepam, ketamine, or any schedule I or II substance	Class 6 felony 1 year to 18 months in prison, a fine of $1,000 to $100,000, or both	Class 1 misdemeanor 6 to 18 months in a county jail, a fine of $500 to $5,000, or both
Unlawful possession of more than 4 grams of flunitrazepam, ketamine, or any schedule I or II substance	Class 4 felony 2 to 6 years in prison, a fine of $2,000 to $500,000, or both	Class 6 felony 1 year to 18 months in prison, a fine of $1,000 to $100,000, or both
Unlawful possession of 2 grams or less of methamphetamine	Class 6 felony 1 year to 18 months in prison, a fine of $1,000 to $100,000, or both	Class 1 misdemeanor 6 to 18 months in a county jail, a fine of $500 to $5,000, or both
Unlawful possession of more than 2 grams of methamphetamine	Class 4 felony 2 to 6 years in prison, a fine of $2,000 to $500,000, or both	Class 6 felony 1 year to 18 months in prison, a fine of $1,000 to $100,000, or both

*Note that attempt or conspiracy to commit a class 4 felony is a class 5 felony; attempt or conspiracy to commit a class 6 felony is a class 6 felony; and attempt or conspiracy to commit a class 1 misdemeanor is a class 2 misdemeanor.

The savings generated by the bill are to be appropriated to the Drug Offender Surcharge Fund (if Senate Bill 12-104 does not pass) or the Correctional Treatment Cash Fund (if Senate Bill 12-104 does pass), and are to be used for substance abuse assessment, testing, education, and treatment. The bill requires a post-enactment review by legislative service agencies after two years that considers the impact of the bill on jail populations and the amount of funding for jail-based treatment programs attributable to the savings.

Finally, the Department of Human Services is required to develop a training program for trauma-informed substance abuse treatment and best practices by June 30, 2013. The training program will be made available to licensed substance abuse treatment programs.

01:32 PM

Senator Steadman spoke about his work with Senator Mitchell on this topic. He referred to House Bill 10-1352, concerning controlled substance crime changes. Senator Steadman noted that Senate Bill 12-163 deals with quantities of drugs that have been found to be involved in personal use. He asked whether prison or intervention is the correct response to someone who is struggling with drug addiction. He spoke about the fiscal note for the bill. He discussed the relationship between this bill and Senate Bill 12-104, concerning drug treatment fund consolidation.

01:37 PM

Senator Mitchell shared additional opening remarks. He said that the bill does not legalize or decriminalize drugs. He spoke about the need to fight drug addiction effectively. He discussed the consequences of a felony conviction. Senator Mitchell noted that over 20 states have some version of a misdemeanor approach to drug restriction. He pointed out that Portugal has experimented with decriminalization and aggressive treatment and has seen some success. He referred to the legislative declaration for the bill.

The following individuals testified regarding the bill:

01:41 PM -- Ms. Christie Donner, representing the Colorado Criminal Justice Reform Coalition, testified in support of the bill. She spoke about her work on this issue. She described various pathways to drug addiction, such as untreated trauma. She expressed concerns with the current response to people who are addicted to drugs. Ms. Donner discussed the lifetime consequences of a felony conviction.

01:47 PM

Senator S. King asked for background concerning previous legislation that has addressed this issue. Ms. Donner spoke about the passage of HB 10-1352 and House Bill 10-1360, concerning parole placement for technical violations. Senator S. King asked if any legislation has addressed the long-term effects of a felony conviction. Ms. Donner described past legislation concerning the sealing of criminal records. She said that the process of sealing criminal records is burdensome. Senator Mitchell noted that his younger brother struggles with addiction to methamphetamines. He said that many people become addicted to drugs not because of trauma but because of foolishness. He said that the response to such people should still be responsible, sane, and constructive.

01:52 PM -- Mr. Mike Krause, representing the Independence Institute, testified in support of the bill. He distributed a packet of information to the committee, but copies were not available for the archives. He congratulated the legislature on its steps towards drug law reform. Senator S. King asked if Mr. Krause has concerns that this legislation did not come from the Colorado Commission on Criminal and Juvenile Justice (CCJJ).

01:57 PM -- Mr. Roger Przybylski, representing himself, testified in support of the bill. He spoke about his research work in the criminal justice community. He said that many current criminal justice programs are not based on evidence. He spoke about the importance of evidence-based practices. Mr. Przybylski briefly discussed the nature of addiction, the value of treatment over incarceration, deterrence, and desistance. He said that the risk-level of an offender is an important factor when determining his or her sentence. He spoke about the consequences of incarceration and a felony conviction, both for offenders and for their families.

02:06 PM

Mr. Przybylski responded to questions from Senator Carroll concerning the costs and benefits of treatment. Senator Roberts spoke about incarceration as a deterrent effect on drug use. She asked whether incarceration has a deterrent effect on drug distribution. Mr. Przybylski discussed his review of research on this issue. Senator Roberts then spoke about funding for mental health services in Colorado. She expressed the view that such funding is not adequate, and asked what will happen to individuals who are addicted to drugs who are only provided with short-term treatment. Discussion ensued between Mr. Przybylski and Senator Roberts. Senator Roberts asked if there will be any sort of limit for how many times an offender can receive state-funded treatment.

02:15 PM

Senator Mitchell commented on Senator Roberts' conversation with Mr. Przybylski. He spoke about the relationship between demand and supply for drugs. He drew a distinction between crimes such as robbery and assault and the crime of drug use. Senator S. King asked how much treatment for relapses should be paid for with state funds. Senator Roberts spoke about children whose parents use drugs. She questioned whether significant criminal sanctions for drug use offer no deterrent effect.

02:21 PM

Senator Carroll spoke about research concerning the deterrent effect of felony criminal sanctions for drug use. She asked for information concerning how deterrent effects are measured. Discussion ensued between Mr. Przybylski and Senator Carroll, with Senator S. King weighing in as well. Mr. Przybylski spoke about treatment that is "coerced" by the criminal justice system compared to voluntary treatment.

02:28 PM -- Dr. M. Kay Teel, representing herself, testified in support of the bill. She distributed two handouts to the committee (Attachments A and B). She discussed her research on the subject of substance use by women who are pregnant. She spoke about the consequences of a felony conviction. She provided statistics concerning the relationship between addiction and various forms of mental illness.

02:38 PM

Dr. Teel continued her remarks by speaking about addiction as a type of disease. She spoke about methadone treatment. She provided statistics concerning the relationship between addiction and post-traumatic stress disorder. Dr. Teel said that treatment for trauma is an important aspect of treatment for addiction. She spoke about the effects of federal heath care reform on treatment for mental illness and substance abuse. She discussed the correlation between adverse childhood experiences and addiction.

02:48 PM

Senator Nicholson spoke about her experience in maternal health. Senator Carroll commented on Dr. Teel's testimony.

02:49 PM -- Ms. Carmelita Muniz, representing the Colorado Association of Alcohol and Drug Service Providers, testified in support of the bill. She spoke about the consequences of a felony conviction. She discussed studies indicating that 10 percent of Americans are recovering from alcohol or drug abuse. Senator S. King asked whether the threat of a felony conviction is a motivating factor to comply with treatment. Ms. Muniz responded to his question and to further questions from Senator Guzman. Senator Mitchell weighed in on Senator S. King's question as well. He said that someone addicted to drugs is not capable of weighing consequences in a rational manner. He spoke about the importance of just consequences and commensurate responses.

02:59 PM

Senator Guzman sought information concerning the training program that the Department of Human Services is required to develop under the bill. Senator Mitchell offered clarification on this point. Senator Carroll asked Ms. Muniz to comment on treatment for co-occurring disorders. Senator Nicholson spoke about the possibility that some individuals may be more susceptible to drug addiction than others.

03:03 PM -- Ms. Terri Hurst, representing the Colorado Behavioral Healthcare Council, testified in support of the bill. She provided statistics indicating that 22 percent of offenders incarcerated in the Colorado Department of Corrections in 2010 were incarcerated for non-violent drug offenses. She said that some studies estimate that up to 80 percent of incarcerated offenders have a substance abuse disorder. She spoke about factors that affect whether a person will succeed at treatment. Ms. Hurst expressed the view that the bill will help treat individuals who are addicted to drugs or who are at risk for addiction.

03:08 PM -- Ms. Pamela Clifton, representing the Colorado Criminal Justice Reform Coalition, testified in support of the bill. She said that after her husband died, she self-medicated, and was later arrested for possessing a small amount of drugs. She said it was very difficult to get treatment because she had no insurance, and was instead given a six-year prison sentence. Ms. Clifton discussed the effect of this conviction on her life, noting that her children were put into foster care and were then put up for adoption. She said that the real victims of the "war on drugs" are the children of those who are addicted to drugs. She said that two thirds of those who go to prison have a child.

03:13 PM -- Ms. Denise Maes, representing the American Civil Liberties Union - Colorado, testified in support of the bill. She spoke about laws in other states addressing possession of small amounts of drugs.

03:17 PM -- Ms. Maureen Cain, representing the Colorado Criminal Defense Bar, testified in support of the bill. She spoke about other states' laws concerning this topic. She also discussed federal law. She described the Drug Policy Task Force of the CCJJ's work on this topic. She discussed a possible amendment to the bill. Ms. Cain spoke about the research of the Treatment Funding Group of the CCJJ concerning drug use in Colorado. She noted that the bill requires a post-enactment review. She noted that sheriffs have concerns about the bill's impact on jails. She spoke about the effects of HB 10-1352. She referred to previous questions concerning the CCJJ's work on this issue.

03:26 PM

Senator Mitchell distributed prepared Amendments L.002 and L.004 (Attachments C and D, respectively). Senator Carroll asked for more information concerning the CCJJ's efforts to address this topic. Senator Roberts spoke about the importance of personal motivation to addressing addiction. She expressed concerns with providing treatment to a repeat offender, thereby using funds that could otherwise help an offender who is committed to changing. Ms. Cain discussed how the current system operates. Conversation ensued, with Senator Mitchell weighing in as well.

03:36 PM

Senator S. King expressed his concerns with the approach taken by the bill. Ms. Cain responded to his remarks. Senator Mitchell weighed in as well. Senator Roberts spoke about individuals who, by being incarcerated, were able to overcome their addictions. She expressed concerns that the bill does not attempt to distinguish between those who would benefit from treatment and those who would not. Ms. Cain responded to her remarks, noting that many offenders spend so much time in jail or in the Denver Reception and Diagnostic Center prior to being placed in prison that they may never receive treatment within the Department of Corrections. Senator Roberts expressed concerns that sheriffs will be asked to run mental health and substance abuse programs under the bill.

03:46 PM

Discussion continued concerning the effect of the bill on jails.

03:50 PM -- Mr. Jeff Orrok, representing the Colorado Libertarian Party, testified in support of the bill. He asked the committee to consider the message that current law sends concerning individual rights and liberty.

03:56 PM -- Mr. James Reed, representing himself, testified in support of the bill. He said that he is a recovering addict, and he owes his life to the treatment that he received. He said that the disease of addiction can be managed with appropriate treatment. He provided details concerning his history of drug addiction. Mr. Reed noted that even though he has recovered, the felony conviction on his record makes it difficult to find employment and housing. Senator Carroll spoke about research indicating that the possibility of a felony conviction does not offer a deterrent effect. She asked for Mr. Reed's perspective on this research. Mr. Reed said that he was an addict living day to day, and was not concerned with long-term consequences. In response to further questions, Mr. Reed described the experience of addiction and discussed why treatment was successful for him. He noted that long-term treatment was very effective for him, and posited that short-term treatment may not have been as successful.

04:05 PM

Senator Carroll asked for Mr. Reed to comment on the consequences of a misdemeanor on a criminal record compared the consequences of a felony on a criminal record. Mr. Reed spoke about laws concerning sealing criminal records related to misdemeanor convictions. Senator Guzman asked Mr. Reed if he would be willing to discuss why he may have become addicted to drugs. Senator Nicholson spoke about Mr. Reed's use of the word "disease" to refer to his addiction. She asked for Mr. Reed's thoughts on why the criminal justice system does not respond to addiction as if it is a disease.

04:11 PM

Senator Roberts commented on Mr. Reed's testimony. She asked if he had concerns that, under the bill, offenders may not be separated from the friends or environment that support their addiction. Mr. Reed said that while incarcerated, he was not free from a bad environment or from drugs. He views his experience in treatment as his time in a safe environment.

04:13 PM -- Ms. Peg Ackerman, representing the County Sheriffs of Colorado, testified in opposition to the bill. She distributed a handout to the committee (Attachment E). She said that sheriffs generally support the goals of the bill, but oppose it due to the impact of the bill on local governments. She noted that the bill is not recommended by the CCJJ. She spoke about the "cost-shift" created by the bill. Ms. Ackerman responded to follow-up questions from Senator Carroll.

04:16 PM

Senator Mitchell noted that his brother went through treatment twice before entering the criminal justice system. He said that people confronting their second or third felony conviction may be more ready to change than people confronting their first.

04:17 PM -- Mr. Dan Rubinstein, representing district attorneys, testified in opposition to the bill. He described his work with the 21st Judicial District Attorney's Office, the Drug Policy Task Force of the CCJJ, and the Colorado Methamphetamine Task Force. He spoke about the various populations affected by the bill. He spoke about the difference between people who are addicted to drugs and people who like to use drugs. Mr. Rubinstein discussed HB 10-1352 and the work of the CCJJ on this issue. He noted that the Colorado Methamphetamine Task Force voted to oppose the bill. He expressed his opinion that the bill will not change the ultimate destination for most of the individuals affected by the bill. He indicated that most of those people will still end up in prison eventually and that many people are successful in court-mandated treatment programs only because they are facing a felony conviction. He provided statistics about drug overdose deaths. He stated that the bill sends a message to society that the possession offenses in the bill are not very serious.

04:27 PM

Mr. Rubinstein responded to questions from the committee about drug offender sentencing policies in Colorado. He spoke about a program in Mesa County, entirely funded by the county, that is a substance abuse treatment program and a community corrections program. He provided statistics about the success rates of the program. He stated that forced treatment works. He discussed a New York study, called Predictors of Engagement in Court-mandated Treatment. Senator Carroll and Mr. Rubinstein discussed the conclusions in the study. Mr. Rubinstein responded to additional questions from the committee.

04:40 PM

Mr. Rubinstein spoke about negotiations concerning this issue and previous legislation. He said the CCJJ needs time to study this issue. Senator Roberts asked for additional detail concerning the CCJJ's history of discussing this issue.

04:46 PM

Senator Mitchell commented on Mr. Rubinstein's testimony. He provided additional details concerning the vote taken against the bill by the Colorado Methamphetamine Task Force. He discussed conversations concerning sealing felony records. Senator Mitchell spoke about the importance of just consequences. Senator S. King asked Mr. Rubinstein to respond to Senator Mitchell's comments. Mr. Rubinstein agreed that change is needed, but he said that those changes were enacted two years ago and have not yet played out. He spoke about a judge's discretion in this matter. He noted that if drug offenses become misdemeanors, parole will no longer be an option for offenders. He spoke about potential unintended consequences of the bill.

04:55 PM

Senator Carroll spoke about research indicating that a felony conviction does not serve as a deterrent. She asked Mr. Rubinstein to comment on the fairness of the collateral consequences of a felony conviction, such as difficulty finding employment or housing. Mr. Rubinstein discussed his office's philosophy on this matter. He noted that district attorneys are not the ones who determine whether someone is disqualified from housing or employment due to a felony conviction. Senator Mitchell contrasted the role of policy-makers with the role of prosecutors.

05:00 PM

Senator S. King discussed a letter he received from the Mesa County Sheriff concerning the local fiscal impact of the bill. He asked Mr. Rubinstein for an estimate of the average cost of the bill to each county sheriff. Mr. Rubinstein discussed various ways to estimate the impact. Senator Mitchell weighed in as well. He provided statistics from the Division of Criminal Justice within the Department of Public Safety indicating that five offenders in Mesa County were sentenced to the Department of Corrections and would, under the bill, be sentenced to jail. Mr. Rubinstein noted that community corrections is not available for misdemeanor convictions.

05:07 PM -- Mr. Michael Dougherty, representing the Office of the Attorney General, testified in opposition to the bill. He said that Attorney General John Suthers strongly opposes the bill. He said that opponents and proponents of the bill likely agree that drug addicts should not be "warehoused." He spoke about how drug possession impacts society. He provided statistics concerning the relationship between drug or alcohol use and crimes. He spoke about the effect of HB 10-1352. He noted that the bill also reduces the crime classification for some class 4 felonies to class 6 felonies. He discussed the successes of drug courts, community corrections, and parole at providing drug treatment.

05:12 PM

Senator Carroll spoke about correlations between alcohol and drug use and other crimes. Discussion ensued between Senator Carroll and Mr. Dougherty, with Senator Mitchell weighing in as well. Discussion turned to whether drug use could lead to further criminal activity.

05:20 PM

Senator Carroll spoke about other factors that could lead individuals to commit crimes. Mr. Dougherty clarified his position on the issue. He referred to the fiscal note for the bill.

05:24 PM

Mr. Dougherty responded to follow-up questions from Senator Lundberg. Mr. Dougherty discussed negotiations concerning a possible compromise on the bill.

05:30 PM

Senator Mitchell explained prepared Amendments L.002 and L.004.


BILL:	SB12-163
TIME:	05:31:35 PM
MOVED:	Carroll
MOTION:	Adopt prepared Amendment L.002 (Attachment C). The motion passed without objection.
SECONDED:
		VOTE
	Giron
	King S.
	Lundberg
	Nicholson
	Roberts
	Guzman
	Carroll

YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection


BILL:	SB12-163
TIME:	05:32:13 PM
MOVED:	Carroll
MOTION:	Adopt prepared Amendment L.004 (Attachment D). The motion passed without objection.
SECONDED:
		VOTE
	Giron
	King S.
	Lundberg
	Nicholson
	Roberts
	Guzman
	Carroll

YES: 0 NO: 0 EXC: 0 ABS: 0 FINAL ACTION: Pass Without Objection

05:32 PM

Senator Guzman expressed her position on the bill. She said that the bill is about people who have made mistakes. Senator Lundberg explained his position on the bill. Senator S. King discussed his concerns with the bill, specifically with regards to methamphetamine. He also expressed concerns about the shift of costs from the state to counties. Senator Roberts explained her position on the bill. She spoke about her work on CCJJ. She discussed recent legislation enacted in Colorado. She discussed various consequences of the bill. Senator Giron expressed her position on the bill. She spoke about the large amount of money that the state spends on the Department of Corrections. Senator Carroll commented on the bill. She shared her experience interning in a drug court. She noted that a person convicted of a felony loses the right to vote. She listed other possible consequences of a felony conviction.


BILL:	SB12-163
TIME:	05:45:34 PM
MOVED:	Carroll
MOTION:	Refer Senate Bill 12-163, as amended, to the Committee on Finance. The motion passed on a vote of 5-2.
SECONDED:
		VOTE
	Giron	Yes
	King S.	No
	Lundberg	Yes
	Nicholson	Yes
	Roberts	No
	Guzman	Yes
	Carroll	Yes

Final YES: 5 NO: 2 EXC: 0 ABS: 0 FINAL ACTION: PASS