Boulder could play central role in shaping state pretrial reform legislation

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Boulder has become the center of a robust debate about criminal justice reform as legislation proposed by the ACLU and introduced in the Colorado Senate has drawn criticism from local law enforcement, businesses and residents. If passed, Senate Bill 21-062 would increase law enforcement discretion to use summons instead of arrest, requiring it for low-level misdemeanor and felony offenses like traffic violations and drug offenses where public safety or ongoing criminal behavior aren’t a concern. It also builds off a 2019 law that eliminated cash bail for petty offenses by requiring courts to instead use personal recognizance bonds for limited misdemeanor or low-level offenses, unless the person is considered a flight risk. Lastly, it codifies the authority local sheriffs have been using during the pandemic to safely reduce their jail populations. 

Sponsored by Democratic Sen. Pete Lee of El Paso County, the legislation is an effort to decrease Colorado’s overcrowded jails, populated in large part by pretrial detainees. It was developed through a stakeholder process, including law enforcement groups. Many of the proposed changes come out of public health policies implemented at jails around the state during the coronavirus pandemic. For example, the ACLU released a report in October that found the increased use of summons and heightened arrest standards used during COVID led to a 48% drop in people being held pretrial on misdemeanor charges across the state. 

But at a March 4 Senate Judiciary Committee hearing deliberating the bill, advocates of the legislation were surprised to hear pushback from Boulder, largely seen as a partner in issues of criminal justice reform. Local Boulder business owners, as well as Chip from Downtown Boulder, testified against the bill, citing increased break-ins on the Pearl Street Mall. Boulder Police Chief Maris Herold also opposed the bill, citing increased property crime statistics in the last year and comments she’s heard from the community and seen on social media questioning public safety. 

“I feel like the community feels like the police cannot protect them,” she said. “The anxiety in Boulder right now is high.” 

Louisville Police Chief Dan Hayes, also testified against the bill calling it “anti-victim.” 

And the legislation has some more obvious opponents. The American Bail Coalition, represented by Jeff Clayton based in Denver, specifically opposes the cash bail provisions of the bill, saying that it significantly reduces judge’s discretion, offering limited exceptions. He thinks the same discretion afforded at the time of arrest should also be given to judges. For example, as it’s written now, “mandatory DV [domestic violence] arrests are presumptive zero bail,” he says, “which is really crazy that it’s important enough for an officer to have discretion to arrest on the street, but it’s not important enough for a judge to have discretion.”

To be clear, the bill does allow judges to set monetary bond for anyone considered a public safety or flight risk, including those accused of domestic violence. 

Overall, Clayton cautions Colorado in adopting legislation limiting cash bail that other states have passed and rolled back, like what’s recently happened in New York.

However, the bill’s supporters say this is all part of the criminal justice reform Boulder so frequently advocates for. 

“Pretrial reform is something that we work on every session, and this is the next iteration of that work,” says Denise Maes, public policy director of the ACLU of Colorado. She adds that aspects of this bill have been discussed for years, some of it was even included in a large bipartisan criminal justice reform bill proposed in early 2020 that ultimately fell to the pandemic chopping block. 

While law enforcement across the region say there’s been an uptick in certain types of crime over the last year of the pandemic — vehicle thefts and property crimes, like breaking into cars, in particular — it’s difficult to connect that directly to jail population size. 

“There are two things that I know to be true, and that is crime is real and the fear of crime can even be worse,” Maes says. “And I get that Boulder has seen spikes in certain types of crimes, but there is no data to support that that increase in crime is correlated to the decline in the jail population.”

Both Boulder County Sheriff Joe Pelle and District Attorney Michael Dougherty, who have taken a neutral position on the legislation, agree it’s difficult to make a direct correlation between increased crime and the current jail restrictions, citing more complex factors driving recent crime increases. 

“I think it has to do with the financial strain on individuals, the lack of behavioral health treatment, especially during the pandemic when people can’t connect in person,” Dougherty says. “I think it’s partly fewer witnesses being out on the streets. We see less crime when there’s more people outside.” 

Both Pelle and Dougherty expect these types of crime to decrease significantly as the pandemic wanes, and express their continued commitment to criminal justice reform. Since Pelle was first elected 18 years ago, he says there’s been pressure to reduce the jail population. 

“When we’re trying to fix problems, like angry, upset, semi-violent people, because they’re mentally ill or high on drugs, the jail isn’t going to fix it,” Pelle says. “And now there’s a lot of pushback saying we need to put people in jail, so it’s been an interesting twist.” 

Dougherty adds, “I think if this bill were introduced a year from now, I imagine there’d be far less focus, attention and concern on it.” 

In other words, the timing of the bill also plays into some of the community resistance.  

“The constant threat to criminal justice reform is if people in the community lose faith, because they think public safety is being jeopardized, that’s when they start to speak out,” Dougherty says. “I think that’s what we’re seeing right now is just the perception that because property crimes have gone up, people are less safe than they used to be.” 

Dougherty says Boulder is safe, however, relative to other communities, and public safety is his office’s top priority. (BW interviewed the DA prior to the mass shooting on March 22, but it’s a sentiment he reiterated during press conferences following the event.)

Misinformation is swirling around the debate as well. Pelle says he’s getting community questions about why the jail is closed (it’s not), or how people are being assaulted, or stores broken into, or how suspects aren’t booked into jail (they are). But jail capacity is still limited due to certain social distancing and COVID precaution measures in place, and law enforcement has expressed frustration about the jail not taking more people into custody, Pelle says. 

Since last March, the population has hovered between 280 and 300, Pelle says, still higher from the early months of the pandemic, when it dropped below 200, but also down from its height of 460 daily average pre-pandemic. 

Overall, Pelle says what’s proposed under SB 62 more closely resembles the County’s arrest standards pre-pandemic. What the bill would do, however, is codify that across the state, he adds. When it comes to cash bail, while the bill may change things for other places, it won’t change much in Boulder County, Pelle says, given that community corrections and pretrial services have been used instead of monetary bonds for a while. 

“This is the work, what criminal justice reform is, and I’m having a lot of conversations with folks in Boulder who want criminal justice reform on a national level,” says Elizabeth Epps, founder of the Colorado Freedom Fund, a community bond initiative, and a community organizer with the ACLU’s Bring our Neighbors Home initiative. “And they support the George Floyd policing act, they have these big-picture ideas of progress, but when it comes to what that looks like in their own communities, they’re incredibly resistant.”

Among the bill’s individual supporters are Denver DA Beth McCann, Colorado Attorney General Phil Weisser, and La Plata County Sheriff Sean Smith. Both the County Sheriffs of Colorado and the Colorado District Attorneys Council have taken a neutral stance on the legislation. The state’s large, well-funded victim advocacy groups have all taken a neutral position on the bill, as well, and many victims testified in favor of it at the judiciary hearing, advocates point out.

 The Boulder Chamber has yet to take a position on the bill, but president and CEO John Tayer says he’s following the bill, wanting to make sure law enforcement has tools to address crime and repeat offenses, as well as ensure civil rights protections for individuals. 

“Boulder Chamber wants to make sure that whatever position we take on the legislation is thoughtfully balancing public safety, as well as respect for those who are accused of criminal behavior,” he says.

The Senate Judiciary Committee eventually passed the bill 3-2 along party lines. It’s currently in Senate appropriations, given its $93,000 general fund price tag. It will then go to the full Senate for discussion (expected in the next several weeks), which is where more amendments could potentially come into play.

Dougherty says he plans to meet with the ACLU to continue conversations about amending it further, and the City of Boulder appears to also want amendments.

On March 18, Boulder’s Intergovernmental Affairs Committee discussed the bill with many initially wanting to take an oppositional stance. Council member Aaron Brockett, however, cautioned against such a strong position, advocating instead for the City to work with the bill’s authors on amendments to clarify and address issues raised by Boulder’s business and law enforcement community. 

“Moving away from an arrest and jail-based approach to enforcement of minor offenses is a positive direction to go in,” Brockett says. “And this is in the context of the United States as a society that experiences mass incarceration particularly with people of color and African-Americans, we need to be moving away from using jail as a tool for too many situations.” 

Like the rest of Boulder’s public officials, Brockett is concerned about increased crime in the last year, however, he attributes a lot of it to the pandemic and doesn’t expect it to continue as the public health emergency fades. 

“We’ve heard from a lot of people in the community that they’re worried that this bill would sort of keep the current problematic state of things and make it permanent,” he says. “That’s not the intention of the bill.” 

Instead, he’s advocating Boulder lobby for certain amendments that would add specificity to some of the exceptions and clarify which serious crimes could still result in an arrest. For example, currently the bill allows for an arrest if someone is in possession of a firearm, but Brockett would like to include other deadly weapons like knives or machetes. 

In the end, the Intergovernmental Affairs Committee agreed not to oppose the bill, but instead take an “amend” position. The full City Council is scheduled to discuss the legislation at its next regular meeting on April 6.

“Personally, I don’t think we should oppose this bill,” Brockett says. “I think we should work to improve it because I think it’s going in good directions.”

A spokesperson for Boulder Police Chief Herold told BW in an email: “Chief Herold is currently busy working on amendments on the bill with impacted organizations.”

Maes says she’s aware of the City’s amend position, and has some indication of what changes, at least conceptually, the City would like to make, but the ACLU has yet to have any substantial discussions about new amendments.

“Putting more and more people in jail is not the answer to any of our societal woes. And it’s certainly not the answer to crime,” Maes says. “The fact is that we have had an addiction to jails and prisons for a long time, and yet we are no safer as a result of them. So we need to find a different way.”

While many within Boulder County are still debating SB 62, everyone seems to agree on one thing: They want to see more done at the state legislature to address issues of substance and mental health, which for years has been the largest contributor to high jail populations. 

“I also think we have to work on the substance abuse and mental health issues that people experience as an initiative in and of itself,” Brockett says. “The support that we have in our society for people experiencing those issues is really lacking.”  

This story has been updated to clarify judges’ discretion in setting bail. We apologize for the confusion.

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