New state law to ‘de-felonize’ drug possession
With little fanfare and less publicity — at least here on the Western Slope — Gov. Jared Polis signed a bill into law four months ago that is likely to have a seismic impact on the lives of some Colorado residents who run afoul of the law.
Beginning March 1, the bill will “de-felonize” possession of user amounts of hard drugs such as heroin, cocaine and methamphetamines and make that crime a misdemeanor.
“It’s clear the people of Colorado feel that drug use is a health concern, first and foremost, and not a crime, at least not in the way we’ve thought about it in the past,” said Aspen prosecutor Don Nottingham. “This law reflects that, absolutely.”
The law, passed by the Legislature in early May and signed into law May 31 by Polis, makes it a misdemeanor to possess less than 4 grams of almost all Schedule I and II drugs, which also includes fentanyl and most other illicit drugs. Possession of any quantity of Schedule III, IV or V drugs also becomes a misdemeanor March 1.
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In addition, prosecutors can no longer charge people with drug possession for having a piece of drug paraphernalia — a syringe or pipe, for example — that contains drug residue. The law also eliminates felony possession of marijuana entirely from Colorado statutes, with possession of more than 6 ounces to be considered a “level one drug misdemeanor.”
Possession with intent to distribute or manufacturing is still a felony. Also, possession of any quantity of ketamine and some date-rape drugs remains a felony. A fourth drug possession charge will be considered a level-four drug felony, which is similar to DUI laws that consider a fourth drunken driving charge a felony. Finally, the new law also mandates lower sentences for drug offenders, removes drug possession from the list of sentence enhancers and creates a grant administered by the Department of Local Affairs to pay for local substance abuse and mental health treatment.
The law, which was sponsored by two Republicans and two Democrats, is supposed to save the state between $8.6 million and $13.7 million over five years.
In Pitkin County, the number of felony drug arrests is not large. Nottingham estimated the new law would affect about 15 cases a year on his docket, which is more or less borne out by statistics from local law enforcement.
Aspen Police reported four felony drug arrests in 2014, eight in 2015, 10 in 2016, 12 in 2017, eight in 2018 and 18 so far this year. The Pitkin County Sheriff’s Office arrested exactly four people on felony drug possession in the same time period, while the Snowmass Village Police Department arrested two people for felony drug possession between 2014 and Tuesday, according to department sources.
Nottingham said the new law both is and is not a major shift in policy.
It is not a big deal because drug possession has been on a downslide, punishment-wise, for years. Not long ago, the punishment for cocaine possession was equal to that of a normal level four felony. Several years ago, that changed and the crime is now known as a “level 4 drug felony,” he said, which mandates far less penalties than a normal level four felony.
The law is a major shift, however, in terms of how it will affect people’s lives, he said. Felony convictions mean a person cannot vote and must answer awkward questions on job applications and housing rental forms that often lead to denial of those crucial components of life.
“(It’s about) when you go out into the world and apply for a job and have to answer questions about whether you’ve been convicted of a felony,” Nottingham said. “Now that becomes a lesser concern.”
Aspen Assistant Police Chief Linda Consuegra likened the new law’s approach to addiction to law enforcement’s evolving attitude toward dealing with people with mental health issues. Law enforcement in the upper Roaring Fork Valley now have access to a mental health counselor available to ride with them to crisis calls, while Pitkin County has put together a mental health and substance abuse program available to all county residents regardless of income.
“It’s a big deal,” Consuegra said. “I think the whole thing is to decriminalize it to allow people arrested for possession to get the help they need.”
Pitkin County Sheriff Joe DiSalvo said he hadn’t heard of the change but was all for it.
“I think it’s totally appropriate,” he said. “I think it represents the progressive thinking we’ve had for years in Aspen that party drugs should not come with felonies.”
The law will erase the black marks on people’s records that prevent them from voting and obtaining decent housing and employment, DiSalvo said.
“Cocaine is not good for anybody,” he said. “It’ll ruin your life. It’ll ruin your family life. It’ll take your money. But you can’t eliminate it from society.”
Lauren Maytin, an Aspen defense attorney who frequently handles drug cases, also praised the new law as common sense in action.
“I’ve always thought it was a health issue and not a criminal issue,” she said. “Having one gram of cocaine you’re sharing with somebody signifies a user, not a dealer.”
Maytin said that young people are often those facing a felony conviction for drug possession, which saddles them with a lifelong burden with far-reaching consequences.
“They’re battling a felony cocaine charge for a stupid moment at a person’s wedding when someone offered them a line of coke,” she said. “I find it to be a welcome change.”
Nottingham said the law will likely be a good thing provided treatment services exist to offer help to drug addicts. The Roaring Fork Valley is one of those areas with a treatment infrastructure capable of doing that, he said.
Jarid Rollins, a social worker in the mid-valley helping create a community strategic plan for opioid treatment, agreed.
“I do think there are treatment options,” he said. “Getting somebody access is the issue.”
People in need of treatment require an intense amount of hand-holding to get them into a treatment program, Rollins said.
Beyond that issue, reducing drug possession to a misdemeanor and keeping felonies off a person’s record is a huge benefit, he said.
“One of the biggest things it offsets (in the Roaring Fork Valley) is the housing issue,” Rollins said. “If you have a felony (conviction), you will have a hard time getting into a secure rental facility.”
At a recent focus group, Rollins said people with drug possession convictions told him that after they go to jail, dry out and experience withdrawal symptoms they are often ready to use again within 20 minutes of being released.
The bottom line is that the current system isn’t working, said Nan Sundeen, Pitkin County’s director of Health and Human Services, though she gave credit to local law enforcement for a kinder, gentler attitude toward drug addicts and the mentally ill.
“Pitkin County law enforcement has long known that criminalizing mental health and substance abuse is a mistake,” she said. “We work hard to make sure services are available.”
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