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Drug-endangered child bills won't automatically criminalize pot-using parents, senator says

In last week's marijuana legislative roundup, our William Breathes referenced two bills about drug endangered children that he said "could arguably make all cannabis-using parents criminals."

He's not alone in this belief. But Senator Linda Newell, a Littleton Democrat, insists that nothing could be further from the truth. And on the eve of the legislation reaching the Senate Judiciary committee, she wants to set the record straight.

"This certainly is not targeting marijuana in any way," says Newell, who's co-sponsoring the bills with Senator Andy Kerr. "I believe in the Constitution, and [marijuana use by adults 21 and over] is a constitutional right -- and everybody continues to have that right. But if there are kiddos out there who need our help, we need to make sure they don't fall through the cracks. We need something consistent and we don't have that right now."

State Senator Linda Newell.
State Senator Linda Newell.

The numerically consecutive nature of the bills, known as SB 14-177 and SB 14-178, is appropriate, given that they're a matched set. The former sets out to define the term "drug-endangered child" in the children's code governing actions by state social services, while the latter does likewise in the criminal code that sets parameters for law enforcement.

We've included the complete documents below, but the main definition is as follows:

"DRUG-ENDANGERED CHILD" MEANS ANY CHILD IN A CASE IN WHICH ANY OF THE FOLLOWING SITUATIONS OCCUR:

(a) IN THE PRESENCE OF A CHILD, OR ON THE PREMISES WHERE A CHILD IS FOUND OR RESIDES, A CONTROLLED SUBSTANCE...IS MANUFACTURED, DISTRIBUTED, CULTIVATED, PRODUCED, POSSESSED, OR USED, OR ATTEMPTED TO BE MANUFACTURED, DISTRIBUTED, CULTIVATED, PRODUCED, POSSESSED, OR USED, AND WHEN SUCH ACTIVITY THREATENS THE HEALTH OR WELFARE OF THE CHILD; OR

(b) A CHILD'S HEALTH OR WELFARE IS THREATENED BY UNRESTRICTED ACCESS TO EITHER A CONTROLLED SUBSTANCE OR ANY LEGAL SUBSTANCE CAPABLE OF CAUSING... A MENTAL OR PHYSICAL IMPAIRMENT; OR

(c) A CHILD'S HEALTH OR WELFARE IS THREATENED BY THE IMPAIRMENT OF THE PERSON RESPONSIBLE FOR THE CARE OF THE CHILD...IF THE IMPAIRMENT IS DUE TO THE USE OF EITHER A CONTROLLED SUBSTANCE...OR ANY LEGAL SUBSTANCE CAPABLE OF CAUSING A MENTAL OR PHYSICAL IMPAIRMENT; OR

(d) A CHILD TESTS POSITIVE AT BIRTH FOR EITHER A SCHEDULE I CONTROLLED SUBSTANCE...OR A SCHEDULE II CONTROLLED SUBSTANCE...UNLESS THE CHILD TESTS POSITIVE FOR A SCHEDULE II CONTROLLED SUBSTANCE AS A RESULT OF THE MOTHER'S LAWFUL INTAKE OF SUCH SUBSTANCE AS PRESCRIBED.

Are the phrases pertaining to threats against a child's welfare so sweeping that they would make it impossible for any parent to engage in legal cannabis use, home grows or the like without violating one or more of them? That's the conclusion of many in the marijuana community. Note a Denver Post opinion piece by Laura Pegram, a policy associate with the Colorado branch of the Drug Policy Alliance, and an open letter to Judiciary committee members from a group of Boulder area marijuana businesses.

The letter, which we've also shared here, states that "Our opposition to this legislation is not based in the inclusion of marijuana or because alcohol is not included. Our opposition to this bill is simple, it creates criminals out of parents."

Cannabis advocate Robert Chase is even more blunt. He has collectively dubbed the bills as the "Parents Who Use Cannabis Are Child Abusers Act of 2014."

Why such vehement opposition? Newell isn't sure.

Continue to read more of our interview with drug-endangered-child bills sponsor Senator Linda Newell, including more photos and four documents.   "It could be fear," Newell says, "or it might be the timing," in light of a recent Colorado Department of Public Health call to limit how many patients private medical marijuana caregivers can serve and cap the number of plants they may grow. But in either case, she contends that the worst-case scenario interpretations aren't accurate.

Drug-endangered child bills won't automatically criminalize pot-using parents, senator says

The seeds for this year's bills were planted with SB 13-278, sponsored by Newell last year and signed into law that May. The measure (found on the next page of this post) also set out to define a drug-endangered child.

"There's a disconnect between the criminal code and the children's code," Newell says. "Without a common definition between them, it is truly at the discretion of each individual person who interacts with a family to discern if there is a drug-endangered child or not. So we went in last year to try to get a definition that hits a sweet spot, so there's no overreach and no under-reach between the two."

In the end, however, Newell wasn't able to win enough backing to pass the legislation as she'd originally envisioned. As such, SB 13-278 merely asked a substance abuse task force to come up with a definition for a drug-endangered child -- and the two new measures call for the language they approved to be formally adopted.

The process has been thorough, Newell allows. "This has been vetted for months by everyone from social services, law enforcement, criminal defense folks, prosecutors and all different kinds of community members."

Did marijuana advocates also have a voice? Newell's not certain about their level of involvement -- and indeed, the aforementioned letter from Boulder marijuana business people notes that while co-sponsor Kerr was able to meet with the group, Newell was unavailable. The letter also says the collective's suggestions about changing wording to focus on "use and abuse" of a controlled substance didn't make the final cut.

Still, Newell says many of the the assumptions about the bills by the marijuana community aren't accurate. Take references to manufacturing: She says they were inspired not by the recent rash of hash-oil explosions, but by language in current statutes meant to protect children whose homes have been turned into meth labs. And Newell adds that prescription drug abuse is among the biggest targets of the bills.

Moreover, Newell feels opponents who see the definition as creating new criminal behavior where none existed before are simply incorrect. "We're not broadening things. We're narrowing them -- clarifying and unifying what's already in the criminal code and the children's code" in order to give more direction to people working on either side of the fence.

Continue to read more of our interview with drug-endangered-child bills sponsor Senator Linda Newell, including more photos and four documents.   To refute the allegation that parents engaging in legal behavior would be criminalized, she offers the example of "a friend who is a mother. She has a year-old daughter and she also has a medical marijuana grow in her home. She's had it for a few years now, and you could literally walk into her home and never know it was there. It's in her basement and never around the child -- and it's a very supportive, very safe home. So this bill will never affect her.

State Senator Andy Kerr with his family.
State Senator Andy Kerr with his family.

"This bill would only come into play when there's a negative effect on a child. It's only when health and welfare of the child is negatively affected that it has any impact at all -- and it has nothing to do with safe homes that are legally growing or using marijuana or any prescription drugs."

The Senate Judiciary Committee will take up SB 14-177 and SB 14-178 Wednesday afternoon.

Below, find last year's bill, which set the stage for the latest legislation, plus the two current measures and the letter from the Boulder marijuana business owners.

Colorado Senate Bill 13-278

Colorado Senate Bill SB 14-177

Colorado Senate Bill 14-178

Boulder Marijuana Business Owners Letter Opposing Senate Bills 177 and 178

Send your story tips to the author, Michael Roberts.

More from our Marijuana archive circa April 2: "Marijuana legislative roundup: Child-neglect bills, out-of-state pot enforcement on the table."


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