Meth Bills Disguise Political Posturing
by Ari Armstrong, December 19, 2002
The Rocky Mountain News owes an apology to State Senator Ken Gordon and especially to its readers who rely on the News for accurate reporting.
A December 19 editorial claims Gordon does not support "passing a law enabling authorities to charge the thugs who run meth labs with child abuse so their kids can get a clean start."
This incorrect statement is apparently based on Michele Ames' erroneous reporting the previous day, when she claimed, "Colorado's district attorneys can't currently charge adults with child abuse if they manufacture the drug around children."
When I called Ames to point out Colorado Statute 18-6-401 clearly allows for criminal child-abuse penalties in such cases, she encouraged me to "take that up with Governor Owens" and other officials. But isn't it the job of reporters to relate the truth, rather than merely convey the propaganda of government officials? (Thankfully, Ames' reporting is generally pretty good.) In fact, the statute cited provides for criminal penalties whenever an adult "permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health." The penalties are felonies when the child is injured.
Anyway, the News' editorial quotes Gordon out of context. Gordon's comment (taken from Ames' story) does not relate to whether children should remain with parents who manufacture meth, but rather whether the parents should go to prison for even longer than they do now. Making meth is already a felony, remember.
(Gordon's comment was, "I would be very reluctant to support creating new felonies that will build more prison cells until we look at alternatives in other areas." In Ames' story, the paragraph preceding the one with Gordon's comments pertains to the proposal to allow "some nonviolent drug offenders to receive punishment other than jail and get treatment for their addiction." This has nothing to do with what happens to children.)
Indeed, as the Denver Post's marginally more responsible reporting reveals (Dec. 18, page 3B), Gordon is sponsoring a bill "lowering the burden of proof and making it easier to remove children from meth-lab homes." But it's not as if the Department of Human Services currently lacks the power to remove children from dangerous environments. If anything, the Department already has too much power. Paul Grant, a lawyer who deals with civil liberties issues, pointed out the Department has "practically unlimited power" now. State care of children is not perfect, either.
I called up Cheri Jahn, the house sponsor of Gordon's bill, and she pointed out agents from the Department of Human Services already "have the jurisdiction" to remove children from dangerous environments involving meth labs. However, she believes, "they are not doing their job" in some parts of the state. She simply wants to make more explicit what is already accepted procedure.
The News also fails to point out that a proposed bill targeting sellers of meth precursors is also redundant for existing legal doctrine. For example, 18-1-603 states, "A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense."
Grant opined, "As times change, the laws must change with them, for otherwise politicians will not be able to take the credit during their next campaigns."
Child Welfare and the Separation of Powers
December 20 Update
It strikes me as an obvious question: Does the Department of Human Services currently have the authority and the power to remove children from dangerous environments involving meth labs? The answer seems equally obvious: yes. I wanted to get the perspective of those who work for the agency, though.
I called Elizabeth "Liz" McDonough at DHS on December 19. McDonough is the media contact for the agency. However, she said she was unable to answer my question, but that somebody else would call me back with more information.
Today (December 20), Jan Motz from the Division of Child Welfare called me back. She said, "I really don't have a whole lot of information for you." I asked her if she is directly involved with removing children from dangerous environments, and she said no. She recommended I call Dr. Kathryn Wells of the Kemp Child Protection Team, part of the University of Colorado Health Sciences. She also said I might call county agencies.
Motz also suggested I call Lt. Lori Moriarty of the North Metro Task Force for additional information. I asked Mozt if Moriarty is responsible for deciding whether to remove children from homes (obviously other than in immediate cases of harm). Motz admitted she is not, though she assured me Moriarty "cares about children." I replied that I do not doubt that Moriarty cares about children, but that does not imply she should be responsible for dictating state policy.
Moriarty's job is to enforce the laws. As a leader of a law enforcement agency, she has a personal interest in seeing the power and budget of her agency increased. Certainly it is appropriate for the legislature to consult with members of law enforcement concerning the basic facts, but it is not appropriate for the legislature to grant enforcement agents a leading role in the development of public policy. Central to the American system of government is the concept of the separation of powers. The legislature makes the laws, and the police enforce the laws. The legislature should be telling Moriarty what the policy is, not vice versa.
I left a page for Wells about 2:00 pm, and she called me back within a couple minutes. A medical doctor at Children's Hospital whose advocacy role is part of her job, Wells presented an informed and articulate case in favor of the two reforms pertaining to civil and criminal penalties for those who produce meth labs around children.
"There's no consistency" in how different parts of the state handle the issue, Wells said. She also cited a "lack of education" as part of the reason cases involving meth labs are not appropriately resolved. I asked her if she thinks the presence of a meth lab is a clear danger to children, and she replied "absolutely." That seems to support the criticism, though, that what's needed is for DHS personnel to do their jobs, not for the legislature to pass more laws.
Wells had several responses for me. She agreed, "We don't want to add extra laws if we don't need to." Wells wants the additional civil reforms so that "mandated reporters" -- teachers and others who are required by state law to report incidents of abuse -- have clear guidance that the presence of a meth lab is cause for a report. Right now the matter is "up to interpretation." It seems to me, though, that simple steps to educate those involved would resolve the problem.
Wells pointed out that current child-abuse laws provide for a felony conviction only if the child is actually injured. Isn't the presence of toxic chemicals on or in a child proof of actual injury, I asked? Mills replied that proving actual injury based only on the presence of harmful chemicals is "very hard to do." For instance, it's hard to prove long-term lung damage. Mills said she has worked with District Attorneys, and they have found it difficult to prosecute for a felony based only on the presence of a meth lab. I find it hard to believe, however, that DAs would find it impossible to get a felony conviction from most juries. DAs should have to prove their case in court -- they shouldn't be handed convictions on a silver platter. It is rare indeed for a DA to argue anything other than that a conviction should be easier to obtain -- and that is precisely why DAs should not drive policy, either.
Another reason for a felony charge, Wells said, is that a felony lists the offender on the child-abuse registry -- misdemeanor offenses do not. This list impacts, for instance, who may open a daycare center. However, I pointed out to Wells, manufacturing meth is a felony already, whether or not a child is present, so surely an additional felony would be redundant for such purposes. (Presumably a misdemeanor child-abuse conviction would also carry weight in such matters.) A felony conviction can also impact decisions made by DHS, Wells said.
Wells may be on the right track when she argues tying felonies to actual harm may not be the best idea. But if she's correct, this is not a reason to list meth production around children specifically as a felony. Instead, the appropriate reform is to create a felony penalty for exposing children to something like "immediate and highly probable risk of significant harm." For instance, driving down the road at 100 mph while falling-down-drunk with children in the back seat not wearing their seatbelts should arguably also count as felony child abuse, even if by good fortune the children are not physically harmed.
As noted, Wells makes the closest approximation to a reasonable case in favor of the bills. However, her arguments do not ultimately justify adopting the proposals. What seems to be needed instead is a shake-up of DHS, which is simultaneously failing to take some children out of dangerous environments, even as it takes other children out of good environments and places them in bad ones. The purpose of legislation is not to compensate for the incompetence of government employees.
Discretion is often a good thing in the law. That's why mandatory minimum sentences for drug offenses have been so devastating -- they have tied the hands of judges and led to draconian punishments way out of line with the offense. By simply listing the presence of a meth lab around children as a felony, all discretion is removed.
What if the parents made a meth lab in a detached garage or in a far-away shed and took some care to keep the children away from it? That's still obviously a bad thing, but perhaps not as bad as giving a child a bath in a tub also used to make meth. Should both cases be treated exactly the same?
What if parents go to prison, reform, come out and get good jobs and live responsible lives? Should they automatically be denied custody of their children because they once built a meth lab? Such a policy would create gross inequalities in the legal system. Some parents who did things a lot more dangerous than build a meth lab would nevertheless be treated more leniently.
Legislative laundry lists are almost always a bad thing. Theft is a crime. We don't have to list every single item to which theft may apply. Laws are appropriately generalized -- they deal with principles. To make child abuse a crime, it is neither necessary nor proper to list every possible instance of child abuse.
The legislature should not start down the path of itemizing every specific type of felony child abuse. Once the practice is established, there is no end to the behaviors future legislators will want to include. If the tendency continues, the law will become inflexible, overreaching, unjust, and obese.
The Post describes the bill sponsored by Gordon and Jahn, the one that pertains to the civil statutes. The Post also describes the two other proposals. "A sponsored by Rep. Pam Rhodes, R-Thornton, would make manufacturing a controlled substance in the presence of a child a third-degree felony, punishable by four to 12 years in prison." Also, "A bill sponsored by Rep. Tim Fritz, R-Loveland, and Sen. Jim Dyer, R-Centennial, would make knowingly selling chemicals used to make methamphetamine a misdemeanor crime with a $10,000 fine."
A press release from Governor Owens' office follows. The release, as well as the newspaper articles, quote drug warrior Lt. Lori Moriarty. They do not, however, come to grips with the criticims I lay out in the article, The Rapid Rise of Drug War Propaganda and the Police State. Specifically, I argue it is the drug war itself which imposes most dangers on children and the broader community.
OWENS ANNOUNCES LEGISLATION TO INCREASE
Legislation will protect children affected by dangerous methamphetamine labs
(DENVER)- Gov. Bill Owens today outlined legislative proposals to stop the spread of methamphetamine labs and protect the children affected by these illegal labs.
"Law enforcement tells us that more than a third of seized meth labs are in homes where children reside. That is unacceptable. And today I am proud to announce that we are taking new steps to protect children from the life-threatening trade" Owens said.
Two of the three bills concern expanding the definition of child abuse to include manufacturing or attempting to manufacture a controlled substance in the presence of a child. The first bill - sponsored by Rep. Pam Rhodes - expands the criminal definition of child abuse making the offense a third degree felony. The second bill- sponsored by Rep. Cheri Jahn and Sen. Ken Arnold- expands the definition of child abuse in the children's code. This bill is the civil law complement to the first bill.
The third bill- sponsored by Rep. Tim Fritz and Sen. Jim Dyer- makes knowingly selling chemicals used to manufacture meth a misdemeanor crime and further imposes a $10,000 fine for that offense.
"In the last eight months the North Metro Task Force alone has removed eleven children ranging from 9 mos. to 8 years of age from homes where their parents or grandparents are manufacturing methamphetamine," said Lt. Lori Moriarty. "In every incident the children were not only exposed to the hazardous materials, equipment and deadly by-products produced, but they had access to the illegal drugs as well. This is an extremely dangerous environment these children live in, and we must find a way to protect them from this abuse. All of these bills are a step in the right direction."
According to the North Metro Task Force, law enforcement authorities shut down 150 labs in the State of Colorado in 1999. In 2000, the number rose to 264, and in 2001 there were 452 labs that were found and shut down. This year, law enforcement authorities have shut down a record number of labs.
"Meth labs pose multiple dangers to children- the vulnerable and voiceless victims- and we see these bills as another area in which Colorado can be a leader in protecting our children and our future," said Kathryn Wells, a pediatrician with the Kempe Child Protection Team at the Children's Hospital.
The legislation will be introduced during the 2003 Legislative Session, which begins on January 8, and comes on the heels of legislation signed by Gov. Bill Owens in June 2002. That legislation, House Bill 1038 makes it illegal to possess the supplies, equipment, or chemicals commonly used to produce meth. The second bill, Senate Bill 50 makes it a felony to stockpile large quantities of pharmaceutical precursors with the intent to manufacture meth.
"Working together, we made progress in 2002. By continuing to work together, we can make more progress in 2003," said Owens. "These bills are essential weapons in the fight against meth and I am eager to work with the Legislature to bring them to my desk in the coming session."