For the past five or six years, the theory guiding Colorado drug prosecutions has centered on the idea that users and possessors have a better chance at treatment if their alternative is prison, and felony charges.
All that's been turned on its head, though, says 21st Judicial District Attorney Dan Rubinstein, with lawmakers' decision earlier this year to make first-time possession of drugs — hard drugs — a misdemeanor, rather than a felony.
"I think the Legislature made Colorado a far less safe place as a result of this legislation," Rubinstein said in a recent interview.
"I believe (the punitive approach) was largely working, and should not have been messed with — but the Legislature thought otherwise," he added.
Rubinstein is no sideline commentator. He was part of the small team that drafted the current drug sentencing and classification statutes that separate drug felonies from other felony crimes. It set up a system that is treatment-based for possessors and users and more punitive for dealers. Special circumstances charges now commonly added to cases, like for importation or proximity to a weapon, mandate minimum prison time of at least eight years, and sometimes 12, upon conviction.
A legislative "wobbler" — in which people convicted of drug crimes could see their charges reduced with successful treatment — was added in 2013.
"We wanted people to face the possibility of felony consequences if they didn't do the treatment, but if they did do the treatment, we wanted the crime to wobble from a felony down to a misdemeanor," Rubinstein explained.
"So that it didn't keep a felony on people's records, allowed them to move forward with employment and other successful things."
That approach is now out the window with the passage of HB 1263, signed into law by Gov. Jared Polis on May 28.
The new drug classifications don't go into effect until March 2020 — which "buys us a little bit of time," Rubinstein said — the delay mostly due to the complicated and unique setup of the court system in Denver.
Reclassifying certain drugs means a possession charge that previously carried a presumptive sentence range of six months to a year in jail now offers a maximum sentence of 180 days in the county jail or 2 years probation. Proponents of the law say that will ease pressure on county jails, something Rubinstein disputes.
Part of the complication in Denver is the specialty drug court program in place there, and programs just like it across the state are at risk with the new leniency, Rubinstein said.
"The likelihood that you're going to get someone to sign up for a super-intense (drug court) program when they're not facing felony consequences, I think is going to be largely the demise of a lot of the drug court programs," he theorized.
TREATMENT SET TO TAKE HIT
"We are expecting to lose approximately 40% of the drug treatment funding that we currently get from the state."
That's the estimate Rubinstein shared about a possible unintended consequence he sees from the new misdemeanor drug law.
He said state money that goes to the Summit View Treatment Program, where drug offenders often are sent for court-ordered therapy, comes from the state's Correctional Treatment Fund, which is supplied by surcharges assessed on drug offenders when they're sentenced by the court. Those are pro-rated based on the classification of the offense.
Misdemeanor surcharges are a fraction of those charged for higher level offenses, so the treatment fund is likely to be depleted.
Jason Talley, Summit View's clinical director, said that Mesa County fully funds the treatment program, but the county also expects the operation to be as self-sustaining as possible. The potential state funding change makes that prospect very difficult.
"We're going to have to try to find other sources of revenue to help make up the loss," Talley said.
Since the new drug classification law doesn't kick in until next year, into the next legislative session, Rubinstein is hopeful that treatment money could be restored before the reclassification happens, and says it's a high priority for the Colorado District Attorneys' Council lobbying group.
But money is only one facet of the issue. Even though Summit View's funding could take a hit, Talley said there might be fewer referrals to the program with the absence of felony repercussions. When asked whether fewer people would end up seeking treatment, Talley said, "Probably."
"I think there's a lot up in the air, about what this is going to change, across the board," he said, specifically mentioning funding, the treatment program population, and how counties and communities may respond to the changes. "We just don't know yet."
JAIL ON TILT
The narrative written about the new law has largely focused on it being a remedy for widespread and increased jail overcrowding.
The law "represents a major step toward treating drug use as a matter of public health rather than criminal justice in our state," read a statement attributed to Christie Donner, executive director of the Colorado Criminal Justice Reform Coalition, after passage.
Her group led a study that found drug felony filings in Colorado have more than doubled over the past six years.
While Mesa County's jail fits the narrative in that it is regularly over capacity with inmates, prompting a $20 million effort to add about 160 beds to the 490-bed jail, the reality is that only one person in the custody of the jail this week was being held on a single class four drug felony for possession, according to the Mesa County Sheriff's Office. Numerous inmates did have the charge included as a package of convictions, though.
"Substance abuse and addiction are complex problems that cannot be solved by sending people to prison and saddling them with felony records," Donner's statement continued.
"Behavioral health conditions are better served by health care professionals in health care settings," Gov. Polis' office wrote in a legislative letter on the day of the bill signing, further anticipating long-term cost savings "as these individuals are de-institutionalized."
Local Reps. Janice Rich and Matt Soper, and Sen. Ray Scott, all Republicans, each voted against the measure.
But Rubinstein sees more unintended consequences with the law, and when asked whether he thinks it will in the end alleviate the jail population pressure, he flatly said no.
"I think we will see a rise in methamphetamine addiction. I think we will see a rise in drug-related crimes, such as theft, burglary, identity theft, providing false info to a pawn broker," he said. "I think we will see an increase in community victimization."
Adding drug possession to the misdemeanor category begs another question, one of whether possession suspects here will ultimately be arrested, albeit on misdemeanor charges.
Currently, misdemeanor charges that carry mandatory arrest include domestic violence, protection order violations and repeat DUI, but that is likely to change with the new drug reclassifications.
Rubinstein, Mesa County Sheriff Matt Lewis, and area police chiefs are responsible for determining arrest standards, and the group has already talked about adjusting those guidelines.
"It is our intention to modify our arrest standards to allow arrests for this drug misdemeanor," Rubinstein said. "And the reason is, we don't believe that scratching somebody a ticket for this offense is likely to result in them showing up to court."
"I suspect most Mesa County citizens believe that possession of meth and possession of heroin is still an offense they want us to treat seriously — even if the Legislature does not," he said.