Colorado lawmakers pass bipartisan bill to restructure state’s misdemeanor laws for first time since 1985

Expected to be signed by Gov. Polis, the bill eliminates duplicate misdemeanor offenses, removes ones that are rarely used and recalibrates the punishments historically given

State Sen. Bob Gardner
State Sen. Bob Gardner, standing, is pictured Feb. 22, 2021. Gardner is a Republican from Colorado Springs. (Faith Miller/Colorado Newsline)

Colorado state lawmakers gave their final stamp of approval on Tuesday to a bipartisan bill that will overhaul and restructure the state’s misdemeanor sentencing laws — an effort that hasn’t occurred in a comprehensive way since 1985, according to the bill sponsors.

The 378-page bill eliminates duplicate misdemeanor offenses, removes ones that are rarely used and recalibrates the punishments that have historically been given for corresponding offenses. 

“(The bill) has lots of moving parts, and it is a change that is long overdue,” state Sen. Bob Gardner, a Colorado Springs Republican who co-sponsored the bill, said during a Senate floor discussion on May 26.

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Offense classifications and their corresponding sentence lengths are a key driver of Colorado’s prison population, which increased seven-fold between 1980 and 2016 as a result of a slew of policy changes that created new crimes and dramatically increased prison sentences for existing ones, according to a 2018 report by the American Civil Liberties Union.

Senate Bill 21-271 — which now heads to Gov. Jared Polis’ desk, where he is expected to sign it into law — removes the misdemeanor level 3 classification, combines the current two petty offense classifications into one category, and adds a civil infraction level to the state’s criminal code. 

New misdemeanor sentencing grid
Misdemeanor 1     Up to 364 days in jail, $1,000
Misdemeanor 2 Up to 120 days in jail, up to $750
Petty Offense Up to 10 days in jail, up to $300 fine
Civil Infraction Up to $100 fine
Previous misdemeanor sentencing grid
Misdemeanor 1 Up to 18 months in jail, $5,000
Misdemeanor 2 Up to 12 months in jail, $1,000
Misdemeanor 3 Up to 6 months in jail, $750
Petty Offense 1 Up to 6 months in jail
Petty Offense 2 $100 fine

The changes will not go into effect until March 1, 2022, to give law enforcement, prosecutors and defense attorneys time to update their operations.

“There were also a lot of misalignments, or crimes that didn’t have a relationship to one another in terms of seriousness because they were created in isolation,” said Christie Donner, executive director of the Colorado Criminal Justice Reform Coalition, who was a part of the group that put forth the recommendations. ”I mean, theft of a milk box was still on the books.”

Support from the majority of Colorado’s district attorneys

The bill warranted support from 21 out of 22 of Colorado’s district attorneys, according to state Rep. Dylan Roberts, an Avon Democrat and one of the sponsors of the bill. The legislation was also sponsored by Denver Democrats Sen. Julie Gonzales and Rep. Serena Gonzales-Gutierrez.

The legislation is a product of recommendations put forth by the state’s Sentencing Reform Task Force, which was formed after Polis wrote a letter last June requesting its formation. The 25-member state task force included victims advocates, prosecutors, judges, law enforcement and people with lived experience within the criminal justice system. 

Donner said the stakeholder process was exhaustive, and that the bill is far from perfect.

“I’m sure there’s lots of people that could complain or have differences of opinion on any host of things, but this was an attempt to integrate what we’ve learned over the last 40 years.”

Donner said it’s hard to tell whether the changes will impact the number of people being held in jail or prisons. “Only time will tell,” she said.

“I definitely think there could be a decrease in the amount of time that people might be doing for some offenses,” she added. “But for some offenses, people could do more time as well. But I think it’s most likely to be a downward pressure on the jail population.”

Some misdemeanor crimes move up to felony, and vice versa

In the reshuffling of classifications, some crimes moved from being misdemeanors to felony offenses. For example, a DWAI misdemeanor offense (driving while ability impaired) got bumped up to a felony offense from a misdemeanor.  

Some felonies dropped down to misdemeanor level. For example, it is currently a class 4 felony to introduce contraband into jail facilities. But the law doesn’t specify what is considered contraband. 

“If you’re booked into jail and you had a little pot in your pocket, that’s a class 4 felony, even though the pot in your pocket is actually not even a crime anymore,” Donner explained. “Literally a postage stamp could be considered a class 4 felony.”

With the bill, only certain items would be considered contraband in order for it to be considered a felony offense such as dangerous instruments, weapons or controlled substances.

Next on the docket? Restructuring felony offenses.

The same task force will work throughout the summer and fall to draft recommendations for updating the state’s felony offenses in anticipation of the 2022 legislative session. 

This phase will include an analysis of Colorado’s sentencing enhancement laws, which lead to significantly longer sentences based on someone’s criminal record. 

“We decided to start with the misdemeanors and then pivot to the felonies to sort of lay a foundation around what is the purpose of sentencing (and) to evaluate all of the different crimes to figure out what’s rational, what’s equitable and what’s consistent,” said Donner.

The group will be evaluating the state’s Habitual Offenders Act — also referred to as the “three strikes law” — and extraordinary risk crimes.

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