Colorado Legislative Council Staff

STATE and LOCAL

REVISED FISCAL NOTE

(replaces Fiscal Note dated March 26, 1998)

TABOR Refund Impact

State General Fund Revenue and Expenditure Impact

Local Revenue and Expenditure Impact

 

Drafting Number:

Prime Sponsor(s):

LLS 98-257

Rep. Adkins

Sen. Wham

Date:

Bill Status:

Fiscal Analyst:

April 28, 1998

Passed Third Reading

Susan Colling (866-4784)

 

TITLE:            CONCERNING SUBSTANTIVE CHANGES FOR THE STRENGTHENING OF THE CRIMINAL LAWS.



Summary of Legislation


STATE FISCAL IMPACT SUMMARY

FY 1998/99

FY 1999/2000

State Revenues

General Fund


HUTF Cash Fund


Fine Revenue

(less than $10,000)

$1,870


Fine Revenue

(less than $10,000)

$1,870

State Expenditures*

General Fund

Other Fund


 


($24,706)

FTE Position Change

None

None

Local Government Impact — See Local Government Section below.


*In addition to the impact indicated for FY 1998-99 and FY 1999-00, the Department of Corrections would require a five year appropriation pursuant to Section 2-2-703, C.R.S.


            The bill, as amended in the Senate on Second Reading, April 28, 1998, would make substantive changes to criminal laws as described below.


            The floor amendment added a section to the bill that would require completion of 12 months of supervision by any offender who is convicted of a class 2, 3, 4, or 5 felony, or convicted of a class 6 felony and the offender had a prior felony conviction. The provisions apply to offenders incarcerated for an offense committed on or after July 1, 1998, whose parole is revoked and returned to prison to serve a period of incarceration. The floor amendment allows the State Parole Board to revoke an offender’s supervision and reincarcerate the offender for up to 12 months. Additionally, the State Parole Board may discharge an offender from supervision prior to completion of 12 months if it is determined that the offender has been reintegrated into society. It further clarifies that the an offender who is revoked from mandatory parole or supervision and has less than 12 months remaining on parole or supervision may be placed in intermediate sanctions, where facilities are available.


            The floor amendment clarifies that an offender is not fully discharged from their sentence until they have completed or been discharged from mandatory parole or their 12 month period of supervision.

 

Section 1:        Clarifies that after an official proceeding or investigation, the witness protection board may authorize funds to protect a threatened victim.



Section 3

through 5:       Requires the revocation of a minor’s or provisional driver’s license for any person convicted of a misdemeanor offense involving marijuana or controlled substances.

Section 6

through 8:       Clarifies when the court is required to report a conviction or adjudication that involves revocation of a minor or provisional driver's license, when the driver's license must be surrendered, and the proof that a person must show when renewing the revoked license.


Section 9

and 10:            Increases the dollar amount that distinguishes between a felony and a misdemeanor for theft laws when multiple incidents of theft are committed over a period of 6 months. Makes a conforming amendment with regards to probation.

 

Section 11:      Increases the dollar amount that distinguishes between a misdemeanor and a felony for theft of rental property laws.

 

Section 12:      Increases the dollar amount that distinguishes between a misdemeanor and a felony for theft by receiving laws. Allows multiple incidents of theft by receiving to be aggregated to constitute a class 3 felony if committed over a period of 6 months.

 

Section 13-22:            Increases the dollar amount that distinguishes between a felony and misdemeanor for the laws of criminal mischief, fraud by check, defrauding a secured creditor or debtor, unauthorized use of a financial transaction device, computer crime, theft against at-risk adult or an at-risk juvenile, trafficking in food stamps, unlawful use of personal needs funds, tampering with a motor vehicle and theft of motor vehicle parts.

 

Section 23:      Includes attempt, solicitation, and conspiracy in the commission of crimes against at-risk adults and at-risk juveniles.

 

Section 24:      Adds assault in the first degree to the crimes specified as crimes of violence when the defendant intends to disfigure or disable another person.

 

Section 25:      Clarifies that enhanced sentencing provisions, but not those applicable to crimes of violence, may be applied to a defendant convicted of second degree assault, where the injury occurred during the commission or flight from commission of first degree assault.

 

Section 26:      Makes it a class 4 felony if a person commits violation of custody by removing the child from this country.

 

Section 27:      Extends the term of an automatic restraining order until the defendant is acquitted or completes their sentence. With regard to the automatic restraining order, the bill specifies a designee may be appointed by the court to meet the order duties.

 

Section 28:      Expands criminal solicitation to include offering one’s services or the services of another to commit a felony.

 

Section 29:      Lowers the aggregate amount of cocaine required to subject a person to mandatory sentencing if that person unlawfully manufactures, dispenses, sells, or distributes twice or more in 6 months.

 

Section 30:      Deletes from the elements describing first degree criminal trespass the redundant phrase “with intent to steal anything of value.”

 

Section 31:      Increases the penalty for a hit-and-run accident that results in serious bodily injury to a class 5 felony.

 

Section 32:      Makes sexual assault on a child by one in a position of trust a class 3 felony where the act is part of a pattern of sexual abuse and is subject to enhanced sentencing under the crime of violence provisions.

 

Section 33:      Makes it an aggravating factor in considering a death penalty sentence if the defendant chose the victim because of the victim’s race, color, ancestry, religion, or national origin.

 

Section 34:      Makes it a class 1 misdemeanor for any person who intentionally blocks, obstructs, or closes any public highway that extends to any public land, thereby closing public access to public lands.

 

Section 35:      Places the drug Butorphanol onto Schedule IV for purposes of the “Uniform Controlled Substances Act of 1992”.


 

            The bill would take effect July 1, 1998 and would apply to offenses committed on or after that date.



State Revenues


            This bill would have a fiscal impact on General Fund revenue as a result of more misdemeanor convictions. The bill lowers the penalty for many theft crimes from a felony to a misdemeanor. The proposed changes to certain offenses would decrease the penalty from a class 4, 5, or 6 felony to a class 2 misdemeanor, which carries a fine between $250 to $1,000. The potential amount that could be generated from this change cannot be estimated at this time.


            Additionally, Sections 3, 4, and 5 of the bill would require the revocation of a minor’s or provisional driver’s license if a person is convicted of a misdemeanor that involved marijuana or controlled substances. These sections would increase fees payable to the Department of Revenue for persons renewing their driver’s license as a result of a revocation. The amount of fees that would be collected would be $55; $40 for reinstatement of a drivers’s license and $15 for reissuing a driver’s license. Based on information from the Judicial Department, in FY 1997, there were 45 misdemeanor convictions for offenses that involved a juvenile and controlled substances. This fiscal note assumes that two thirds (or 34) of these offenders possess a minor or provisional driver’s license that would be subject to revocation. Therefore, the bill would have an impact on the HUTF cash fund and would generate approximately $1,870 annually.


            Further, Section 34 increases the penalty and fine for obstructing access to public lands from $50-$500 for a class 3 misdemeanor to $500-$5,000 for a class 1 misdemeanor. This change increases the potential amount of fines collected and deposited in the General Fund, however, this amount cannot be estimated at this time.


            Although an estimate is not provided for the individual sections above, this fiscal note assumes the aggregate amount of fines that would be collected and deposited in the General Fund would be less than $10,000.



TABOR Refund Impact


            Section 20 of Article X of the Colorado Constitution, limits the maximum annual percentage increase in state fiscal year spending. Once total state revenue from all sources that are not specifically excluded from fiscal year spending exceeds these limits for the fiscal year, the state constitution requires that the excess shall be refunded in the next fiscal year unless voters approve a revenue change as an offset. Based on the current Legislative Council economic forecast, it is projected that the state will be in a TABOR refund position during each of the next five fiscal years. Any increase or decrease in state revenue from changes in fees, fines, licenses, or other revenue sources will affect the amount of the state revenue to be refunded.



State Expenditures


            The bill would impact General Fund expenditures to the Department of Revenue (DOR) and the Department of Corrections (DOC). Each section of the bill that has a fiscal impact is explained below. Admission data from the DOC were used to estimate the bill’s fiscal impact, as well as the court databases from the Division of Criminal Justice (DCJ), and the Colorado District Attorney’s Council (CDAC). The overall bed impact this bill would have on the Department of Corrections is identified in the five-year table on page 9 of this fiscal note.


            The floor amendment passed on Second Reading would have a fiscal impact on expenditures of the Department of Corrections (DOC). The provisions of the amendment would prohibit an offender from discharging their sentence or any portion of their mandatory parole period in a state prison. An offender who violates conditions of mandatory parole and subsequently returned to prison, would be required to serve a 12 month supervision period upon release from incarceration. The amendment would affect offenders who are returned to prison on technical violations, offenders convicted of a new crime would be incarcerated for that offense, not for a parole revocation. If an offender is released on supervision and violates any conditions, the State Parole Board may return the offender to prison. Should this occur, the offender would then be re-released into the community for a 12 month supervision period. An offender would be required to successfully complete 12 months or an amount of time that the State Parole Board determines to be sufficient and it is decided that the offender has been integrated into society.


            Based on data from the DOC and Legislative Council, it is estimated that the impact of this amendment would begin in FY 2001-02 and will have an affect on the number of offenders released and placed under the supervision of a parole officer. Additionally, impact on prison bed space at the DOC will begin in FY 2001-02 with the first group of offenders failing the required 12 month supervision period and being returned to prison. Therefore, there would be an impact on parole services and prison beds and each of these areas are discussed below. The provisions of this section would continue to have an impact on the Division of Parole Services and bed space at the DOC in subsequent years. This would occur because of the expanded pool of offenders required to have community supervision, which would also expand the number of offenders likely to fail during their supervision period and returning to prison. Additionally, there are those offenders who will continuously impact the system by not successfully completing the supervision period and being released by the State Parole Board who will keep being admitted to prison. However, the total amount of time spent by an offender in incarceration as a result of revocation of supervision shall not exceed the length of the offender's orginal sentence to incarceration plus the length of the offender's orginal sentence to mandaotry parole plus twelve months. Additionally, the offender receives credit for all time spent in incarceration, the original sentence and the revocation sentence.


            The floor amendment states that any offender revoked for a technical violation and has less than 12 months remaining on their mandatory period of parole would be subject to placement in intermdiate sanctions. Although this is current practice, most parole violators are refused by the community corrections boards and are subsequently returned to prison.


Division of Adult Parole Services: This fiscal note assumes that offenders convicted of a class 6 felony will be the first offenders to decay through the system and have an impact as a result of this bill. However, only class 6 felony offenders with a prior felony conviction would be subject to the provisions of the bill. According to FY 1996-97 data from the Colorado District Attorney's Council (CDAC) database, 65.6 percent of class 6 felony offenders sentenced to the DOC have a prior felony conviction. Of the class 6 offenders, 87.3 percent currently discharge the remainder of their sentence while incarcerated. Since the proposed legislation prohibits offenders from discharging their sentence in prison and requires a period of community supervision, those offenders who would have discharged their sentence in prison would now be required to serve a 12 month supervision period, thus increasing the population under the supervision of the Division of Adult Parole Services. This fiscal note estimates that a class 6 felony offender would serve 11.9 months (average length of stay for a class 6 felony) in DOC, would be released to mandatory parole for an average of 6 months, would be returned to prison for a technical violation for an average of 12 months, and would be released again into the community for their remaining period of parole or a minimum of 12 months of supervision.


            According to Legislative Council Staff, in FY 2000-01, 99.8 class 6 felony offenders will be admitted to prison on a technical violation and will have an average length of stay of 12 months. These offenders do not impact bed space because they would already have returned to prison under current law. However, 65.6 percent of these offenders will have an impact on the parole population as they would not be allowed to discharge their sentence in prison, but instead would be required to serve a 12 month period of supervision in the community. Of the 99.8 offenders revoked to prison, 12.6 offenders would have been released to parole and 87.2 offenders (or 87.3 percent) would have discharged their sentence in prison. The 12.6 offenders released to parole would currently serve six months, however, the floor amendment would require them to serve an additional six months, resulting in 6.3 additional parolees. Overall, this would result in an ADA (Average Daily Attendance) increase on parole services of 93.5 offenders in FY 2001-02 (87.2 offenders + 6.3 offenders = 93.5 ADA).


            The number of offenders released on a 12 month supervision period will increase significantly in FY 2002-03, since class 5 felony offenders would have decayed through the system and would be added to the population supervised under parole services. According to Legislative Council Staff’s December 1997 Prison Forecast, there will be 1,695 technical revocations in FY 2001-02, of these only class 5 and class 6 offenders will be affected by this amendment. Data indicate that 33.9 percent of technical revocations are class 5 felony offenders, therefore, 574.6 class 5 felony offenders will be revoked for a technical violation and 105.6 class 6 felony offenders will be revoked for a technical violation. Additionally, 65.2 percent of class 5 felony offenders currently discharge their sentence after being revoked in prison. Again, the amendment would prohibit the possibility of discharge, thus, additional offenders would be released to supervision, increasing the parole ADA in FY 2002-03 to 513.5 offenders (414.6 class 5 + 98.9 class 6 = 513.5). It is important to note that although only class 6 felony offenders with a prior felony conviction are affected by this amendment, some first time class 6 offenders will be required to complete the remaining portion of their original mandatory parole period. As a result it is anticipated that the number of offenders placed in the community on supervision will continue to increase each year.


            Although it is not indicated in this fiscal note, it should be noted that the impact on parole, in addition to the ADA increase, would also be reflected in the number of FTE (approximately 60 offenders for each parole officer) and program and treatment costs. Offenders under the supervision of parole services may be subject to various program requirements; electronic monitoring, participation in the drug and alcohol treatment program called “Treatment Alternative to Street Crime” (TASC), drug screens, and mental health treatment. The cost of these subprograms per parolee are:

 

                      electronic monitoring is approximately $4.10 per day (or $1,497 per year);

                      the TASC program cost $600 annually (78 percent of regular parolees);

                      drug screens average three at $12.50 per week (or $37.50 annually); and

                      specific mental health treatment averages $250 per parolee (52 percent of parolees).



DOC Bed Impact: The amendment would have an impact on DOC bed space in FY 2001-02, as offenders fail the supervision period and are returned to prison for technical violations. It is assumed that class 6 felony offenders will again be the first to impact bed space as 10 percent of offenders placed on supervision will be revoked for a technical violation. Therefore, in FY 2001-02, 9.4 (93.5 X 10 percent) offenders released to supervision will be reincarcerated prior to completing the 12 month supervision period and will serve time in prison for 12 months (as is consistent with current practice by the State Parole Board). Additionally, there will be an impact on bed space at the DOC in FY 2002-03 at the same rate (10 percent) for both class 5 and class 6 felony offenders being revoked for a technical violation. However, while class 6 felony offenders will have a 9.9 ADA impact, class 5 felony offenders will have a 41.5 ADA impact, resulting in an increase in the overall ADA of 51.4 in FY 2002-03. It should be noted that in future years impact will increase for all felony classes.


            Section 3, 4, and 5: Minimal Impact


            These sections would require a minor or provisional driver’s license to be revoked from any person convicted of a misdemeanor that involved marijuana or controlled substances. There would be an impact to the Department of Revenue (DOR) from person’s renewing their driver’s license after revocation. It is assumed that any increase in workload would be minimal and could be absorbed within existing resources.


            Section 5 through 23: Fiscal Impact - (4.13 bed savings).


            Sections 5 through 23 change various crimes of theft by raising the dollar amount from $400 to $500, distinguishing between a felony and a misdemeanor. Data do not indicate the dollar amount for these crimes, however, this fiscal note assumes two percent of offenders convicted of a felony would now be convicted of a misdemeanor. Crimes included in these section are: theft, theft of rental property, theft by receiving, criminal mischief, fraud by check, defrauding a secured creditor or debtor, unauthorized use of a financial transaction device, computer crime, theft against at-risk adults and at-risk juveniles, trafficking in food stamps, theft of personal needs benefits, tampering with a motor vehicle, and theft of motor vehicle parts. Section 23 includes attempt, solicitation, and conspiracy to crimes committed against at-risk adults and at-risk juveniles, which would impact offenders who would have been sentenced as a class 5 felony.


            Specifically, sections 9, 12, 19, and 20 decrease the offense from a class 4 felony to a class 2 misdemeanor, which would have a savings impact of 3.27 beds and $246,683. For sections 11, 15, 16, 21, 22, and 23 whereby the offense is decreased from a class 5 felony to a class 2 misdemeanor, there would be a bed savings of .62 and $54,363. Finally, section 14 decreases the offense from a class 6 felony to a class 2 misdemeanor, resulting in a bed savings of .24 and $22,231.


            Section 24: Fiscal Impact - (7.71 beds).


            This section adds assault in the first degree to the crimes specified as crimes of violence when the defendant intends to disfigure or disable another person. This statutory change would require the courts to sentence all offenders convicted of first degree assault, felony class 3, to at least the midpoint of the presumptive range of 10 years. According to the DOC, 50 offenders were sentenced for class 3 first degree assault in FY 1996-97. These five offenders were estimated to have a length of stay of 29.5 months, which is 55.8% of the average sentence. It is assumed, under this section of the bill, that offenders would be sentenced to 120 months (midpoint of the presumptive range) and would serve 67.0 months. This section would have an impact of 7.71 beds and $1,130,431 General Fund expenditure. However, the bed impact would not be evident until FY2001-02 and there would not be an impact to General Fund expenditures until FY 2000-01.


            Section 26: Fiscal Impact - (1.16 beds).

 

            This section makes it a class 4 felony if a person commits violation of custody by removing a child from this country. According to the District Attorney’s database, there were five admissions to the DOC for custody violations in FY 1996-97. This fiscal note assumes one person will remove a child from this country and be convicted of a class 4 felony, instead of a class 5 felony. An offender convicted of a class 4 felony will stay longer than the current class 5 offender, 29.3 months compared to 15.4 months. This section would have a fiscal impact of 1.16 beds and $151,698 General Fund expenditure.


            Section 31: Fiscal Impact - (1.28 beds).


            This section increases the penalty for a hit-and-run accident from a class 1 misdemeanor to a class 5 felony. The District Attorney’s database indicates that in FY 1996-97, seven people were convicted of this crime as a class 1 misdemeanor. Four of these offenders were sentenced to the county jail and three were sentenced to useful public service. It is assumed that four offenders will be sentenced to the DOC as a class 5 felony and have an average length of stay of 15.4 months. This increase in penalty would have a bed impact of 1.28 and $202,848 General Fund expenditure.


            Section 32: Fiscal Impact - (.7 beds).


            This section makes it a class 3 felony if a person commits sexual assault on a child by one in a position of trust and the sexual assault shows a pattern of abuse. In FY 1996-97, there were four admissions to the DOC for sexual assault on a child by one in a position of trust. It is assumed that one of these admissions would have included a pattern of abuse and would now be convicted of a class 3 felony instead of a class 4 felony. The difference in length of stay would be six years, resulting in an impact of .7 and $48,868 General Fund expenditure, however, this impact would not be evident until FY 2002-03.


Five-Year Fiscal Impact on Correctional Facilities


            Pursuant to Section 2-2-703, C.R.S., which requires that bills which would result in a net increase in periods of imprisonment not be passed without five years of appropriations for prison bed construction and operating costs, the following analysis is provided. Construction costs are estimated to be $69,811 per bed and operating costs of $23,352 per bed. It should be noted that the construction costs reflect the funding needed to construct the beds in the fiscal year prior to when the additional offenders would enter the system.


FIVE-YEAR FISCAL IMPACT ON CORRECTIONAL FACILITIES

Fiscal Year

ADA Impact

Construction Cost

Operating Cost

Total Cost

FY 98-99

0.00

$0

$0

$0

FY 99-2000

(1.06)

0

(24,706)

(24,706)

FY 2000-2001

(1.53)

727,721

(35,822)

691,899

FY 2001-2002

10.42

3,281,117

243,425

3,524,542

FY 2002-2003

57.42

349,055

1,340,969

1,690,024

TOTAL

 

$4,357,893

$1,523,866

$5,881,759



Local Government Impact


            The bill would have a fiscal impact on local government as the increase in misdemeanor offenses would impact county jail space. The bill changes certain offenses that are currently a class 4, 5, or 6 felony and proposes those crimes to be classified as a class 2 misdemeanor. According to Section 18-1-106, C.R.S., a class 2 misdemeanor carries a possible jail sentence between three months and 12 months. A misdemeanor conviction may also carry a fine, in lieu of or in addition to a term of imprisonment. Since the sentencing court has the discretion of whether to impose a fine, a jail sentence or both, the impact on county jail space is unknown.






Spending Authority


                        This fiscal note indicates that the Department of Corrections would not require General Fund appropriation in FY 1998-99. However, the Department of Corrections would require a five-year appropriation (pursuant to Section 2-2-703, C.R.S) of $5,881,759.


            Since the bill contains an exception to the requirements of Section 2-2-703, C.R.S, and a no appropriation clause, the bill assumes that the fiscal impact from the floor amendment would be implemented within existing resources. However, this amendment would have an ADA impact to the DOC and would require appropriation pursuant to Section 2-2-703, C.R.S.



Departments Contacted 

 

            Department of Corrections 

            Department of Public Safety 

            Department of Revenue 

            Judicial

            State Public Defender




FACTS AND ASSUMPTIONS



Facts

 

1.         Projected costs of construction for a medium security bed at the Department of Corrections for FY 1999-00 is $69,811 and the average operating cost per year per bed is $23,352.

 

2.         Class 2 misdemeanors are punishable by three to 12 months imprisonment in a county jail and, in lieu of, or in addition to a jail term, may be subject to a fine between $250 and $1,000.



Assumptions

 

1.         It is assumed that offenders convicted of a class 3 felony drug offense and sentenced to the DOC will have an average length of stay of 31.0 months.

 

2.         It is assumed that offenders convicted of a class 3 felony sex offense and sentenced to the DOC will have an average length of stay of 104.4 months.

 

3.         It is assumed that offenders convicted of a class 4 felony sex offense and sentenced to the DOC will have an average length of stay of 51.6 months.

 

4.         It is assumed that offenders convicted of a class 4 felony and sentenced to the DOC will have an average length of stay of 29.3 months.

 

5.         It is assumed that offenders convicted of a class 5 felony drug offense and sentenced to the DOC will have an average length of stay of 12.5 months.

 

6.         It is assumed that offenders convicted of a class 5 felony and sentenced to the DOC will have an average length of stay of 15.4 months.

 

7.         It is assumed that offenders convicted of a class 6 felony and sentenced to the DOC will have an average length of stay of 11.9 months.

 

8.         It is assumed that first degree assault as a class 3 felony would apply as a crime of violence under Section 16-11-309, C.R.S., and the offender would be sentenced at the midpoint of the presumptive range (10 years). Persons convicted under this provision of the bill would serve 55.8% of their sentence and have an average length of stay of 67 months.