Heather McBroom’s guilty plea to a felony drug charge in 2000 has proved to be an unshakeable burden, no matter how much success she has had in her professional life, now as a paralegal and process server.
She can’t volunteer at her child’s school with a criminal record. She can’t be a recreational league coach. There are military bases in her hometown of Colorado Springs that she can’t enter to do her work.
“I’m not asking that anybody say what I did was OK,” McBroom told state lawmakers Thursday as she testified in support of a bill that would make it easier to have criminal records sealed. “But I have served my time, and this is something that follows me every day. I’m a different person. I lead a really upstanding life.”
McBroom is one of the thousands of people entangled in Colorado’s criminal justice system who hope to benefit from a host of changes being brought this year by Democrats. Party members are trying to reduce penalties for non-violent, low-level offenses and remove barriers for offenders once they are released from prison.
Lawmakers are also set to spend millions more to address the mental health of offenders and help get juveniles convicted of crimes access to services instead of incarcerating them.
“We’re not rehabilitating people. We’re just cycling in and out through different systems and then back in,” said state Rep. Leslie Herod, a Denver Democrat who is pushing many of the criminal justice measures. “And we have to change that.”
Many of the criminal justice bills sailing through the General Assembly this year aren’t necessarily new concepts, but Democrats are taking advantage of their new majority, flexing political muscle to make strides on other long-debated issues, includingrenters’ rights and oil and gas regulation.
If all the criminal justice measures are signed into law, the slate of bills would represent a significant and fast-moving overhaul of Colorado’s justice system.
While most of the bills making their way through the legislature have bipartisan support, law enforcement and some GOP lawmakers have tried to pump the brakes on a number of the measures, warning that there could be unintended consequences. 18th Judicial District Attorney George Brauchler, a Republican, said the bills seem “to absolve and protect the convicted criminals who harm our neighbors and loved ones.”
“I think it’s been a pretty aggressive year under the auspices of criminal justice reform,” said Tom Raynes, who leads the Colorado District Attorneys’ Council, representing the state’s prosecutors, which is neutral or supportive of most of the legislation. “They’ll be significant changes in many ways to how we do business. Bond reform, depending on how many of those bills pass, will have major impacts on how we do things on a daily basis. Some of it good, some it kind of unrealistic.”
Sen. Bob Gardner, a Colorado Springs Republican and the ranking member on the Senate Judiciary committee, agrees that changes to the system are needed and has been supportive of many of the efforts. But he worries about the potential public-safety consequences.
“One of the things that I have consistently said to the bill proponents is that we need to keep public safety as a priority over everything else,” he said. “It’s a fine balance to strike.”
But proponents of the changes, such as Sen. Pete Lee, a Colorado Springs Democrat, say it’s time to take a hard look at the status quo. “The easiest thing for a parent to do when their kids are being a pain in the butt is to send them to their room,” he said. “The easiest thing to do when an adult commits an offense is to send them to prison.”
Bail reform and drug defelonization
One of the most high-profile criminal justice pushes at the legislature this year centers on reforming Colorado’s bail system.
There are three bills central to this effort, all of which aim to prevent people accused of low-level crimes from being jailed because they can’t post bond or from being held longer than necessary before trial.
Awaiting Gov. Jared Polis’ signature is House Bill 1225, which prohibits judges from requiring cash bail for anyone accused of a traffic offense, petty offense or similar municipal offense so long as no one was killed or seriously hurt in the commission of an alleged crime.
“They are in there for low-level offenses,” Herod said. “They don’t need to be there and we don’t need to be paying for it.”
A companion measure seeks to expand pretrial services in a uniform way for defendants across Colorado and give counties the money they need to put those in place. House Bill 1226 would require each of the state’s 22 judicial districts to develop a pretrial release and screening process to assess each person arrested within 24 hours.
It also would require the chief judge of each judicial district to specify the criteria for how to quickly release someone jailed on a summons or unsecured personal recognizance bond without monetary conditions and without a bond hearing.
“It puts these pretrial systems in place throughout every county in Colorado,” Herod said. “Right now, Denver may have a robust system. But we’re not going to see the same system in Huerfano (County). So we need to figure out how to incentivize at the county level. We’re providing state resources to get the services they need.”
The third measure, Senate Bill 191, goes a step further, aiming to reduce counties’ costs and address jail overcrowding. It would require that a judge set bond for a defendant at a hearing within 48 hours of their arrest, and allow them to post bond within two hours after a county sheriff is notified of the amount. A jail also would have to release someone within four hours of their posting bail, “unless extraordinary circumstances exist.”
“When you get a four-day weekend and you have people getting in on Friday night and keeping them until Tuesday, that packs the jail,” said Vicki Marble, a Fort Collins Republican who is a prime sponsor of the measure. “There’s no reason why judges can’t hold advisement hearings in 48 hours.”
That legislation from Marble, a former bail bond agent, and Sen. Jeff Bridges, a Greenwood Village Democrat, is drawing opposition because of the strain it could put on rural counties and victims. Denver is the only judicial district in the state that has weekend court hearings, and there are fears that the others lack the staffing or technical ability to do so as well.
“It’s a myopic view of the state,” said Raynes, from the DA’s council. “When you’ve got districts that are bigger than four or five individual states in this country — I don’t think legislators recognize that when they just mandate to counties ‘make this happen.’”
Bridges said the bill allows for telephone hearings and it’s a question of protecting the rights of people who haven’t been convicted of a crime and making sure they don’t languish in jail — something that could prompt legal action. “There are a lot of accommodations in this bill to make sure that rural folks can comply,” Bridges said. “We’ve worked with sheriffs, we’ve worked with district attorneys. If we don’t do this, we do at some point risk a lawsuit.”
Another effort to keep people from landing behind bars would drop felony drug possession charges down to misdemeanors. House Bill 1263 aims to prevent anyone convicted of possessing personal-use levels of narcotics out of the state prison system with the idea that they would get treatment instead.
There are concerns the legislation doesn’t do enough to ensure people have access to help — though the bill’s sponsors are working to secure funding for that — and at least one sheriff is vehemently opposed.
“Changing possession of these incredibly dangerous drugs to misdemeanors is a slippery slope and walking dangerous ground,” El Paso County Sheriff Bill Elder testified before a legislative hearing this month.
Speeding up the system
One of the most significant issues in Colorado’s court system in recent years has been the inability of the state to quickly process and treat defendants whose competency is in question.
The state was sued over the length of time — months, in some cases — that some people were spending locked up and awaiting a competency evaluation before trial. Colorado settled the case earlier this year and stipulated to addressing the issue while facing fines as it works to reach the mandates.
Under the consent decree, the Colorado Department of Human Services by June must ensure that the most mentally ill inmates in need of urgent care get admission to inpatient care within seven days. The state must also establish a number of teams and programs to make sure that they are on track.
A pair of bills aim to accomplish those goals and provide mental health treatment to people to prevent them from landing in the criminal justice system in the first place and to help the state comply with the decree.
Terri Hurst, policy coordinator with the Colorado Criminal Justice Reform Coalition, said the combination of bolstering treatment services and prevention is an important step. “To see both things happening at the same time is pretty exciting,” she said.
Criminal justice reform advocates like Hurst also see the mental health parity bill, which would force insurance companies to provide equal coverage for mental health conditions as they do for physical ones, as another important part of the equation.
To help cases be processed more quickly, lawmakers have OK’d an increase of 15 district court judges across 10 judicial districts. That will cost roughly $7.4 million in the next fiscal year and another $8.3 million in fiscal year 2020-21.
In addition, there’s a bill that would require the state’s court system to implement a reminder program to prevent people from being jailed for failing to appear before a judge when scheduled. That would keep offenders from adding on additional charges.
Two more measures aim to help immigrants navigate the criminal justice system and avoid potential deportation while reducing the caseload before Colorado’s courts.
House Bill 1148, which has been signed into law by the governor, reduces the year-long maximum penalty for Class 2 misdemeanors in Colorado by a single day. That would help keep immigrants in the U.S. with legal status avoid automatic deportation. An immigration law mandates that anyone convicted of a crime that carries a penalty of a year or more is subject to immediate removal from the country without a hearing.
Because of those potential immigration consequences, immigrants charged with Class 2 misdemeanor crimes — which includes criminal mischief — won’t plead guilty to their crimes.
Meanwhile, Senate Bill 30, would make it easier for people to have their charges vacated after they’re dismissed following completion of a diversion program. That also would help people living in the U.S. illegally avoid deportation since a dismissal is viewed by federal immigration authorities as a conviction — something many aren’t aware of.
“What folks aren’t advised about is those immigration consequences remain after the case is withdrawn,” said Sen. Julie Gonzales, a Denver Democrat who is bringing both immigration-related bills.
Reducing Colorado’s prison population, recidivism rate
Colorado’s prison population has grown dramatically in the past 30-odd years, and so with it has the budget for the state’s prisons. Lawmakers are trying to tackle both this legislative session.
Lee is one of the lawmakers bringing a bill that seeks to help low-risk, parole-eligible inmates be released faster by changing the rules under which Colorado prison officials can ask for the state’s parole board to clear offenders through.
“What were attempting to do is to get the parole board to look at some of those people, particularly people who are low-level offender, non-violent crimes and they are beyond their parole eligibility date and they don’t have a (prison) violation,” Lee said. “These people are basically ready to go and we want to move them through the parole system.”
Senate Bill 143 would also prevent someone’s parole from being revoked for a technical violation and ensure they have the support they need once released.
Gardner, the Republican lawmaker, worries that approach might be too simplistic.
“I recognize that criminal justice reform is important,” Gardner said. “We incarcerate an increasing number of people. Recidivism is (roughly) 50 percent. And if we can make even an improvement of 10 percent out of the 50 it would be phenomenal and it would be great because that’s lives that are rehabilitated. It’s great because that’s money that we can use for other things. But this wholesale effort to stop incarcerating people ignores the fact that of what district attorneys and what law enforcement people will tell you, which is that you have to earn your way into the Department of Corrections.”
There are also a number of less obvious efforts to decrease the recidivism rate, including legislation that would prevent businesses from asking about a job applicant’s criminal history. In that same vein, Rep. Mike Weissman, an Aurora Democrat who chairs the House Judiciary Committee, is the lead on pushing to make it easier for convicts to seal their records.
His House Bill 1275, which includes Republican prime sponsor Rep. Matt Soper of Delta, would allow convicts to petition a judge to seal their records three to five years after a sentence is completed for a majority of crimes. Murder, sex offenses, child abuse and assault are excluded.
“This is the ability to get a job, this is the ability to move beyond your criminal past,” Soper said. “The collateral consequences stay with a person for years and years after one criminal issue.”
Opponents, including victims’ rights groups, are worried that some relatively serious criminal convictions could be sealed. They also are concerned that the period between completing a sentence and petitioning for a record to be sealed is too short. “The bill is out of balance, serving the needs of offenders with disregard for those who are impacted by violent crime,” testified Emily Tofte Nestaval, executive director of the Rocky Mountain Victim Law Center.
But Weissman says it strikes the right balance. “There are many offenses that are never eligible for sealing, and that is by design.”
In addition, there is also push to restore voting abilities for Colorado parolees. That bill could increase the number of people who are eligible to vote in Colorado by about 10,000 a year, according to state fiscal analysts. The hope is that could keep people from returning to prison.
“If you vote you’re more likely not to commit a crime,” Herod said. “You’re more likely to actually give back to nonprofits and your community and volunteer.”
Juvenile justice changes
Lawmakers are also tackling changes to Colorado’s juvenile justice system this year, aiming to increase rights for child defendants while helping them get treatment and discouraging them from reoffending.
The largest of those efforts is Senate Bill 108, a bipartisan measure that arose out of a study group that recommends a series of changes to how youth offenders are treated. Among those reflected in the legislation are provisions that seek to increase treatment, revise how deferred sentences are handled and reduce the number of children who are ultimately locked up.
“We were oversupervising, with not very good results,” Lee said. “Oversupervising low-level kids rather than concentrating our resources on kids with higher needs.”
The study group also found that juvenile diversion programs functioned too much like adult probation, “which created too much opportunity for failure,” Lee said. “And we’re going to allocate money to districts that don’t have these programs to set up these programs.”
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Rep. Serena Gonzales-Gutierrez, a Denver Democrat, is also bringing a pair of bills aimed at protecting juveniles’ rights and exploring whether young adults should have access to services in Colorado’s child-justice system.
One of those measures would raise the bar for parents to waive their child’s Miranda rights in cases where a sibling or the parent themselves is the victim.
“If the parents waives those, that is a violation of a juvenile’s constitutional rights,” Gonzales-Gutierrez said.
She also is pushing for a study to see whether 18-24 year olds should be allowed to go through the juvenile justice system for lower-level crimes. That would give them access to more family-based treatment options and potentially lesser penalties.
“With the different research that has been done, 18 to 24 year olds are still having their brains developed,” she said. “Are they really making appropriate decisions? Their frontal lobe is not fully developed.”
People like McBroom, the Colorado Springs woman with a drug record hoping to have her criminal history sealed, are watching closely to see what changes eventually are signed into law. For her, it’s a matter of opportunity and being able to move on.
“I’m told to go back into society and be a contributing part of society, but yet society continues to tell me I’m not like everybody else. I don’t get the same rights. I don’t get the same options,” she said. “I feel like it’s not giving me my right as a citizen to come back into society.”
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