Colorado may reduce drug-possession sentences to lower costs; should Texas?

Colorado is considering reducing drug sentences as part of an effort to reduce prison costs, reports the Colorado Springs Gazette ("Prison Crowding: $700 million is too much; release nonviolent offenders early, panel says," Nov. 22):

Colorado prisons are overflowing with inmates, at a cost of nearly $700 million a year to taxpayers, in part due to mandatory sentences for nonviolent drug offenders, a panel of state lawmakers and sentence reform advocates said at a town hall meeting Saturday.

To ease the pressure on the state prison system, the 2010 General Assembly will be asked to pass a package of bills that would give judges discretion at sentencing to let some of those convicts out sooner.

The sentencing reform package also will include bills reducing penalties for possession of marijuana and other drugs. For example, possession of 4 ounces of marijuana would become a petty offense instead of a criminal misdemeanor. Possession of 8 to 16 ounces would be a misdemeanor under the bills, instead of a felony.

Similar reductions would apply to possession of small amounts of cocaine and methamphetamine and various prescription drugs, with the exception of “date-rape” drugs.

The package also will address DUI sentencing laws, perhaps raising penalties for habitual DUI convictions, said Christie Donner, executive director of the Colorado Criminal Justice Reform Coalition.

That's an encouraging sign and at some point in the future Texas, whose prison budget is four times that in Colorado, should follow suit and reconsidering sentence levels for small-time drug possession crimes.

What are the prospects for such reforms here? At the Texas Legislature, we've already seen initial moves toward these goals, but never with nearly so much momentum as they've apparently found in Colorado.

Reviewing recent Texas advocacy on drug sentencing, one is reminded that Republican District Judge Michael McSpadden out of Houston has for several years been calling for reducing low-level drug penalties, both as an issue of fairness and because too many petty cases are clogging up felony courts. Last year he convinced 15 other district judges from Houston - from both parties - to sign a letter supporting reduced drug sentences.

Legislative efforts to reduce criminal sentences in Texas have been greeted with caution, but not with entirely discouraging results. In 2003, facing deep budget cuts and declining sales-tax revenue, then-Chairman of House Corrections Ray Allen filed legislation to reduce penalties for less-than-a-gram possession offenses from a state jail felony to a misdemeanor. A compromise version of the bill ultimately passed which kept the crime as a felony but required judges to give probation to first-time offenders, a move which diverted thousands of people from the prison system and presaged more expansive probation reforms passed in 2007.

From there, I've often thought that the next, obvious incremental step would be to reduce less-than-a-gram possession charges to a Class A misdemeanor, at least on the first offense. After all, less-than-a-gram first-offenders now aren't going to prison anyway (and crime has only gone down since that became the law in 2003), plus the "felon" label creates negative collateral consequences that encourage instead of prevent recidivism. In Colorado, they're considering going even further than that, heeding Judge McSpadden's warning that all these cases should be treated less punitively.

Similarly, regarding marijuana penalties, few recall that in 2005 the House Criminal Jurisprudence Committee - then under the chairmanship of Republican state Rep. Terry Keel of Austin - unanimously voted for state Rep. Harold Dutton's bill to reduce penalties for possession of less than an ounce of marijuana from a Class B to a Class C misdemeanor - essentially a ticket-only offense - just as is being suggested (up to 4 oz) in Colorado. Even state Rep. Debbie Riddle - widely considered the most conservative member of the Texas House - voted for the legislation in committee. A lot of institutional players - sheriffs, cops, county officials - quietly approved of the bill behind the scenes because it would keep officers on the street for more important duties, reduce jail overcrowding, and limit local costs for providing indigent defense (which is required for B misdemeanors but not for Class C tickets). However, scarce few were willing to come forward publicly.

Though preliminary head counting showed the votes were likely there to pass the bill in the House, the legislation regrettably never received a floor vote. Though it couldn't be reliably confirmed, I was told that then-Speaker Tom Craddick quashed the bill in Calendars Committee, wanting to protect House members from having to take a difficult, potentially controversial vote. Still, there was no real opposition - literally no negative testimony at all in the committee hearing - except an intangible sense that the issue could become sort of third rail they might be attacked for during campaign season. I'm increasingly skeptical, however, whether such fears are really justified.

Given our history in Texas, I'm pleased Colorado will be considering quite similar if more ambitious proposals next spring. If they succeed (and if those who support reform survive their elections in the fall), perhaps they'll provide a template for reform that the Texas Lege could emulate. In light of inevitably declining budgets by the time the Lege meets again in 2011, Texas must plan now to enact policies during the 82nd legislative session that will safely reduce (or at least limit growth in) state spending on corrections. Targeted sentence reductions could be another important tool in the toolbox for reducing corrections costs if state leaders are willing to use it.

Via Thinking Outside the Cage.