All felony simple drug possession crimes in the state could be reduced to misdemeanors if Colorado lawmakers pass a bill that supporters hope would steer the conversation around addiction toward public health instead of crime.

If passed, those convicted of possessing drugs such as heroin and ecstasy for their personal use would face a maximum of six months in jail and two years of probation instead of the current maximum penalty of 18 months. The bill would also lower penalties for other drug possession misdemeanors and remove the felony charge for possessing more than 12 ounces of marijuana.

The bill, introduced Friday, is part of a much-needed solution to Colorado’s crowded prisons and corrections spending, said sponsor Rep. Leslie Herod, a Denver Democrat. Two Republicans and the Democratic chairman of the Senate Judiciary Committee also sponsor the bill.

“It’s time to take away this whole notion that we have to incarcerate to provide treatment,” Herod said.

The bill would not change the punishments for those charged with other drug crimes — such as possession of drugs with intent to distribute — and will not apply retroactively. However, it would allow those who were previously charged with felony possession to apply to have that record sealed after they complete their sentence and allows them to apply to have their felony sentence vacated and replaced with a misdemeanor charge.

Beyond the technicalities, Herod said she hopes the bill would help Colorado begin treating addiction as a public health issue instead of a crime. The bill text includes a mission statement to that effect: “This sentencing scheme recognizes that drug use and possession is primarily a health concern and should be treated as such by Colorado courts.”

“It’s a bold bill,” Herod said.

Reducing pressure

Reclassification is part of a solution to the state’s overloaded criminal justice system where judges are overwhelmed, prisons are overcrowded and the Department of Corrections budget continues to grow, Herod said.

The number of felony drug filings — three-quarters of which are for possession — have more than doubled since 2012, according to a January report from the Colorado Criminal Justice Reform Coalition.

In that report, the coalition suggested reducing drug possession felonies to misdemeanors.

Herod said it was important to keep the potential of jail time in the bill to protect judicial discretion, though she does not believe jails are the healthiest place for a person with addiction to recover.

If passed, the bill would also:

Clarify the law to state that nobody can be arrested for possession of less than 2 ounces of pot.

Remove the possibility of a jail sentence for a first or second conviction of abusing toxic vapors, a misdemeanor.

Prohibit prosecutors from charging people with possession for residual amounts of drugs found on drug paraphernalia.

Establish a grant program for counties to create misdemeanor drug courts.

The Colorado District Attorneys’ Council opposes the bill as it written because it restricts judges’ sentencing flexibility, executive director Thomas Raynes said. By reducing the possibility for a jail sentence, it can be harder to incentivize drug users to cooperate with treatment or a drug court program, he said.

“You end up with addicts and users who don’t go to treatment at all,” he said.

Raynes also criticized the bill for not allocating any money to mitigate health issues surrounding drug use.

“If it’s a health concern, you need to fund it,” he said.

Despite only five weeks remaining in a busy legislative session, Herod said she believes there’s enough time to pass the bill. She and others have been working on it for months, she said.

“Possession will still be a crime,” she said. “But what we’re doing right now isn’t working.”

Growing trend

If the bill became law, Colorado would join a growing number of states reclassifying and redefining drug possession felonies to combat rising prison populations and costs.

“This would be one of the more ambitious policies to deal with this,” said Brian Elderbroom, a scholar at the Urban Institute’s Justice Policy Center.

Five states have already reclassified drug possession charges from felonies to misdemeanors, with few exceptions, according to a 2018 report by Elderbroom for the the Urban Institute’s Justice Policy Center. Lawmakers in Utah, Connecticut and Alaska passed legislation to make the change and voters in California and Oklahoma used a referendum and a ballot initiative, respectively. Some of the states have reported reduced prison populations and millions of dollars of savings in corrections costs, according to the Urban Institute report.

Colorado’s bill stands out because it not only reclassifies drug possession felonies but also caps jail time for the offenses, Elderbroom said.

Many state lawmakers and voters are lobbying for change as the impact of a felony conviction on a person’s life and community becomes better understood, he said. Felons often struggle to obtain work, loans and housing.

“An increasing number of states are recognizing the harm that a felony conviction can cause — it’s very different than a misdemeanor,” Elderbroom said.

District attorneys and police organizations have opposed bills similar to Colorado’s in other states, he said.

“There is no research to show that prosecutors and law enforcement need the hammer of a prison sentence to get someone to stop using,” he said.