Reducing the drug war's damage to government budgets.

• Author: Kopel, David B.
• Position: Age of Austerity

Soaring Medicaid costs, reduced tax revenues because of economic stagnation and the collapse of a housing bubble, and enormous expenditures on pensions for retired government employees have imposed severe stress on the budgets of almost every state government. As a result, many states are being forced to cut funding for traditional and important services provided by state governments--such as civil courts that can resolve disputes within a reasonably expeditious time, protection of children from abuse, and protection of the environment.

Unlike most state governments, the federal government does not have the fiscal discipline of a balanced budget requirement. As a result, federal debt is now more than $15 trillion, (1) and that figure has been growing by more than a trillion dollars per year for the last four years. (2) The rapidly increasing debt could place the nation on a short path to Greek-style fiscal collapse. Not one U.S. Senator or Representative has proposed a tax increase that would, in itself, result in a balanced budget; indeed, a trillion-dollar tax increase probably would drive the economy into a deep recession. So regardless of whether tax increases are a good idea, the need to cut at least some federal spending is clear.

Because states and the federal government must trim nonessential programs to preserve the essential ones, it is time for states and the federal government to consider drug law reform. In this Essay, we make no philosophical arguments about drug prohibition. Rather, we identify several specific reforms that would reduce the fiscal costs of the "War on Drugs."

1. COLORADO REFORMS

   Between 2001 and 2010, Colorado's violent crime rate fell by 8.3%, and the property crime rate fell by 30.4%. (3) During the same period, the prison population rose by 38.4%. (4) Perhaps the latter was one cause of the former. If so, it is an expensive cause. The average cost per inmate per year in public prisons is $32,334, and in private prisons it is $21,571. (5) So although sending someone to prison is less expensive than sending him to Harvard, (6) even small changes in prison population can have significant effects on state budgets. For example, in a medium-sized state such as Colorado, reducing the prison population by just a few dozen inmates could determine whether the state government can continue a matching grant program to poor, rural counties for a social safety net program.

   Drug laws are the obvious candidates for sentencing reform. First of all, drug laws are the main cause of rising prison costs. As the Colorado Criminal Justice Reform Commission (CCJRC) puts it, "drug offenses drive prison growth." (7) Because nonviolent drug offenders are more than 18% of Colorado's prison population and no other nonviolent crime is more than 7% of the population, drug-sentencing reform offers the greatest potential for fiscal savings. (8)

   Drug laws also are the best practical candidates for sentencing reform. Reducing sentences for almost any other crime is a guarantee that more innocent victims will be harmed, either by violent criminals (such as rapists and robbers) or by nonviolent ones (such as burglars and identity thieves). In contrast, the harms of drug criminals are inflicted primarily on willing "victims." (9)

   Colorado recently enacted four laws to partially reduce the fiscal burden that drug overcriminalization places on the state budget. We consider each of them in turn.

   1. Fiscal Note for New Statutory Crimes

      Colorado's Democratic Governor John Hickenlooper certainly could not be considered "soft on drugs"--not even on "soft drugs." In 2007, the voters of Denver used the initiative process to enact an ordinance requiring that marijuana be "the city's lowest law enforcement priority." (10) Yet in 2008, then-Mayor Hickenlooper's police cited more than 1500 people for marijuana. (11)

      In March 2011, Governor Hickenlooper signed House Bill 11-1239, a bill "concerning a requirement to include additional information in fiscal notes for certain bills related to criminal offenses." (12) The new law requires that information about redundancy be included with any state legislature bill that creates "a new criminal offense, increases or decreases the crime classification of an existing criminal offense, or changes an element of an existing offense that creates a new factual basis for the offense...." (13)

      Here is how the new statute works: Currently, adultery is classified as a crime under Colorado state law. (14) The adultery statute, however, does not authorize the imposition of any punishment for conviction of that crime. (15) Now suppose that a Colorado state legislator, knowing that the lack of a penalty results in little legal deterrence, proposes turning adultery in a Class 2 (mid-level) misdemeanor. Before 2011, the bill to increase the adultery penalty would have needed to pass a committee in both the Colorado House and the Senate (probably the Judiciary or the State Affairs Committee), and be passed on the floor of both the House and Senate. (16)

      Because the adultery bill would impose enforcement costs on state and local governments, it also would have received a "Fiscal Note" written by legislative staff. (17) The Note would estimate the proposed cost of the bill to state and local governments. (18) Now, with the addition of HB 11-1239, the Note also must incorporate how any redundancies in criminal law will affect the state's fisc. (19) The appropriations committees in both the House and the Senate then would need to analyze these considerations. (20) Those committees would need to identify where the money would come from to pay for enforcement of the adultery bill. The extra spending would need to be accounted for in the annual state budget (the Long Bill), (21) which is prepared by the Joint Budget Committee. (22) Because the Colorado Constitution requires a balanced budget, (23) to enact the adultery bill, the legislature would need to identify other spending cuts to pay for the bill. In a year in which state revenues were rising faster than mandatory spending on existing programs (such as Medicaid and K-12 public schools), and there was extra money to spend, the legislature still would need to identify that some of the surplus would be allocated to the bill.

      During recent years of budget austerity, the existing practice of requiring that all new crimes or increased crimes be accounted for fiscally has been effective at deterring legislators from grandstanding by introducing bills to create new crimes. (24) When there is a budget surplus, however, legislators tend to invent new crimes about whatever is in the news ("Twitter fraud," for example), even when the underlying conduct is already covered by an existing statute. House Bill 11-1239 ensures that the Fiscal Note for new or enhanced crime bills will identify whether the bill is redundant.

      House Bill 11-1239 arose from recommendations by the Colorado Commission on Criminal and Juvenile Justice (CCJJ). (25) Speaking in support of the bill, Jeanne M. Smith, Director of the Division of Criminal Justice in the Colorado Department of Public Safety, pointed out that the Colorado criminal code had become incoherent, because "we have over the years developed a patchwork of statutes, some of which were designed specifically for such unique circumstances that you really wonder if we needed it at the time." (26) Thus, said Smith, "one of the ways the committee believed we might be able to try and narrow that growing patchwork is to get before you [the lawmakers] impartial information about how a new crime that is being proposed would fit into the existing statutes," specifically asking whether "the proposed level of the crime seem[s] consistent with other similar types of behavior that have already been named in the statutes." (27)

      Also speaking in support of the bill, Christie Donner, the Executive Director and founder of the Colorado Criminal Justice Reform Coalition (a private NGO), said that the "task of this comprehensive review is to ... [examine] our entire criminal code and look at where there are redundancies or things that don't make sense with these one-off crimes." (28) The review would look to ensure that "when new crimes are created they're relative in seriousness to one another." She added that significant disparities often exist between the punishment imposed for different provisions in the criminal code because "over the years ... we've had a tendency to pass legislation that we can afford ... [which results in] crimes that are misdemeanors [not for principled reasons, but] because that's what we could afford." (29)

      When state Senator Mark Scheffel asked Donner about the effect the law might have on curbing the creation of new crimes, Donner stated this was "certainly not the intention" of the new law. (30) Rather, the purpose of the law is to get "information coming before decision making bodies [about whether] we need this offense or can it be charged under an existing statute,'" which also enables lawmakers to evaluate "whether or not the crime classification is appropriate given the seriousness of other offenses." (31) As for curbing the creation of new crimes, Donner said, "[N]othing ... would limit" the legislature from passing laws "as crimes evolve," and instead would ensure that "information would also be put forward" to make sure that lawmakers are informed about existing crimes. (32) In other words, the law is "not intended to inhibit but just to inform." (33)

      While questioning Donner, Senate Judiciary Committee Chair Morgan Carroll echoed Donner's sentiment that the law would help rectify incoherencies in the criminal code and ensure that punishments better fit crimes. Senator Carroll commented that she had found some "fairly abhorrent behavior that remains at the misdemeanor level and some relatively ... lesser behavior that has found its way into the felony [level] ... I think routinely [presenting]...