Lawmakers eye drug sentencing reforms to ease projected prison population growth

Editors note: House Democrats introduced a bill to change the penalties for drug possession on March 22.

The department that oversees Colorado’s prisons is again asking the state legislature to open Centennial South, a shuttered prison in Cañon City. Corrections officials say they need more beds to make room for what is expected to be an increase in the number of state prisoners.

Drug users have been filling more of these beds in recent years. As drug overdoses reached a record high last year, so, too, did the number of drug arrests and felony case filings in district courts. Today, according to state data, people with drug charges as their most serious conviction make up the largest share of new admissions to prison. The Department of Corrections estimates that about 74 percent of inmates have a substance use disorder, which includes addictions to opioids like heroin as well as other drugs and alcohol.

This has some lawmakers wondering if too many people addicted to drugs are ending up behind bars.

“Are they supposed to be there in the first place or are there other options?” said Rep. Leslie Herod, a Democrat from Denver and advocate for addiction treatment who will serve as vice chair of the House Judiciary Committee when the legislature gavels in on Jan. 4.

A state budget analyst told lawmakers last week that private prisons are about full, prisoners are sleeping in large plastic trays on the floor, and at least four correctional officers have been hospitalized this year after confrontations with inmates. Colorado’s prison population has been declining even as the state’s general population has grown in recent years. But now, state estimates show the prison population could swell from about 20,000 currently to 25,000 by 2022, far exceeding current bed counts.

Instead of writing a blank check to open an empty prison in Cañon City, Herod and other Democrats — who will control the House, Senate and governor’s office starting in January — are eyeing criminal justice reforms that are more lenient on Coloradans convicted of drug possession. The hope is that reforms will help drive the prison population down.

Herod plans to introduce a bill that would make simple possession of drugs like heroin a misdemeanor rather than a felony. A misdemeanor conviction could still result in a jail sentence, but would land a convict in a county jail rather than a state prison.

“It’s a statewide epidemic,” she said of drug use. “If we are treating this more as a public health issue than a criminal justice issue, we will make more progress.”

Senator-elect Pete Lee, a Democrat from Colorado Springs, said he is interested in passing a law that would seal certain felony convictions from public view, including drug charges. Prior convictions on someone’s record leads to long-lasting collateral consequences, making it difficult to find a job or an apartment after release. Supporters of the law change say ensuring that prospective employers and landlords cannot see prior felony convictions helps people transition out of incarceration and reduces their chances of ending up back behind bars.

In Colorado, the odds of landing back in prison after serving a sentence is that of a coin toss.

Some lawmakers also want to expand medical treatment for drug addiction in jails and prisons with the hope that convicts will be less likely to relapse upon their release.

Colorado prisons, like some county jails across the state, provide little to no medication for inmates with a drug addiction. Inmates are eligible for Vivitrol shots prior to their release, according to a DOC spokesman. The injections, known generically as naltrexone, block some of the effects of opioids and can ease cravings. But medical experts say that people with an opioid addiction should have access to medication while serving their sentence, not just upon release.

Sen. Dominick Moreno, a Democrat from Commerce City, will sponsor a bill that he said should help county jails and the Department of Corrections partner with local health providers to offer medical treatment to inmates. Medications to reduce cravings and ease withdrawal symptoms include buprenorphine, naltrexone and methadone.

Trying to prevent the incarceration of drug users is not new for Colorado’s legislature. Nearly six years ago, lawmakers changed drug sentencing laws to allow people convicted of drug possession and certain drug dealing charges to have their felony reduced to a misdemeanor upon the successful completion of probation.  

The sentencing reforms have had mixed success.

Since they were passed in 2013 — the year Colorado legalized marijuana — drug arrests in Colorado have been on a steady rise, according to an analysis of data from the Colorado Bureau of Investigation. Meanwhile, felony drug filings in district courts have soared, nearly doubling since 2013, data from the state Judicial Department show. These drug cases make up the largest share of criminal cases filed in district courts.

Since 2013, prison sentences for possession of drugs other than marijuana have been on the rise, too. An analysis of state sentencing data found the majority of the people in prison for drug convictions were charged with the possession of a schedule 1 or 2 controlled substance, which includes heroin, methamphetamine and fentanyl. Publically available data, however, does not indicate what role prior criminal convictions or plea agreement play in these sentences.

In a more recent effort to curb prison population growth, lawmakers last year withheld funding for new prison beds. The goal was to pressure the Department of Corrections into releasing more inmates into community corrections, also known as halfway houses, and intensive supervision programs. The effort came as beds were projected to fill up in the spring of 2019.

But, since the state budget was passed earlier this year, the percentage of people in community corrections or intensive supervision programs has barely changed. According to the latest prison capacity report, about 7.4 percent of inmates are in these programs, short of the 11 percent target set last session as part of budget negotiations.

Part of the reason is because the Department of Corrections does not have full control over who enters and leaves the system; prosecutors request sentences, the state Parole Board decides who is eligible for parole, and local community corrections boards determine who can participate in their programs.  

The Colorado Criminal Justice Reform Coalition and the American Civil Liberties Union released a memo this year that includes policy proposals intended to help more low-risk inmates transition out of prison and drug sentencing laws. 

A separate report by the ACLU recommends shortening many types of sentences. The report also suggests automatically moving inmates with a history of safe behavior while in prison into parole unless the seven-member state Parole Board objected. 

Some 8,600 inmates in state prison are past their parole eligibility date, about 43 percent of the total prison population, according to the Department of Corrections. The percentage was as high as 50 percent in 2011.

Denise Maes, the public policy director for the ACLU of Colorado, said the two organizations want to pass other laws to divert people with drug addiction into treatment before they are even arrested.  She said the ACLU also plans to shed light on the discretion district attorneys have when it comes to bringing charges. Highlighting the role of prosecutors, who work for the state’s 22 district attorneys, may help explain racial and ethnic disparities in the prison population, she said. Latinos, African Americans, and Native Americans are overrepresented in Colorado’s state prisons. 

A September report by the ACLU argued that the state could, with policy changes and political will, cut its prison population in half by 2025.

But, so far, political leaders have more focused on planning for prison growth.

Gov. John Hickenlooper’s final proposed budget, released in November, included  $27.9 million to reopen Centennial South Correctional Facility, formerly known as Colorado State Penitentiary II, which was built in 2010 to hold inmates in solitary confinement and was mothballed in 2012, in part due to a decline in the prison population and changes to the Department of Corrections’ policy on keeping prisoners in long-term isolation. Taxpayers are still paying construction bills. The plan could open up hundreds of beds.

Gov.-elect Jared Polis has appointed Dean Williams as the new commissioner for the Department of Corrections. Williams previously oversaw Alaska’s prisons. A spokesperson for Polis did not return a request for comment about Hickenlooper’s prison expansion plan in time for publication.

The Department of Corrections’ budget has swelled by 30 percent in the last five years, in large part due to personnel and medical costs, even as the prison population has barely changed. The current budget is about $900 million.

Many lawmakers have voiced frustration over this growing budget. Senator-elect Lee is among them. But he and others are not objecting outright to the governor’s plan to open Centennial South. There may be options to use the prison space to increase access to treatment, lawmakers say.

But, Lee said, “We have to talk about alternatives to building more prisons.”

“I’m of the view that if we build them we will fill them,” he added. “It’s not like a Field of Dreams because it’s more like a field of nightmares.”