Members of the Colorado Supreme Court appeared open last week to the idea that municipalities cannot impose harsher sentences under their own ordinances than state law does for identical criminal offenses.

In a rare pair of appeals taken directly from municipal court, the justices heard about an unusual twist in the relationship between state and municipal courts. Thanks to 2021 legislation that revised and standardized the penalties for misdemeanors and petty offenses under state law, many localities suddenly found themselves with higher sentences on the books for analogous crimes prosecuted in municipal court.

“For the longest time, what I remembered is if you got charged in municipal court, you were glad because that meant it was a lower-level offense with lesser penalties,” said Justice Carlos A. Samour Jr. during oral arguments on May 13. “Now, it feels like the other way around, where if you get charged in municipal court, you’re really in trouble.”

Earlier this year, the legislature attempted to clarify that local governments could not impose more severe sentences for “comparable” offenses under state law going forward. However, on May 16, Gov. Jared Polis vetoed the legislation.

Consequently, the Supreme Court may provide the final word on the legality of disproportionate sentencing practices between the state and local justice systems. Defendants charged with offenses in Aurora and Westminster asked the Supreme Court to consider two reasons why they could not be punished more harshly than they would be in state court.

First, they argued Colorado courts have long recognized that the right to equal protection of the laws is violated when there are different punishments for the same criminal violation. Second, Colorado’s interest in eliminating sentencing disparities, as expressed through the 2021 sentencing reform bill, preempts localities’ ability to impose higher penalties.

Chief Justice Monica M. Márquez signaled that the second argument made the stronger case against disparate punishments.

“Where municipal provisions authorize punishments in excess of those specific statute caps, that’s what creates the operational conflict,” she said. “It is both authorizing what state law forbids and impedes the state’s interest in uniformity for sentencing for those types of offenses.”

Thirty-six times

Colorado’s constitution grants home rule municipalities the right to impose penalties for violations of their charters or ordinances. Lawmakers have also permitted municipalities to impose a maximum of one year in jail and a $2,650 fine as punishment.

However, in 2021, the General Assembly enacted Senate Bill 271, which came in response to a letter Polis sent the prior year to the Colorado Commission on Criminal and Juvenile Justice. In it, he requested that the commission look at “sentencing recalibration.”

“Our sentencing scheme should be rational, just, and consistent so that the punishment fits the conduct,” he wrote. “Sentences should be grounded in anti-bias principles and equity, regardless of race, ethnicity, gender, geography, socio-economic status, disability, or any of the other intersecting identities that may affect sentencing.”

As enacted, SB 271 lowered the maximum penalties for certain misdemeanor and petty offenses to levels below those municipal courts are authorized to impose.

One year after the bill’s enactment, Aleah Michelle Camp was charged in Westminster Municipal Court with theft. Compared with the identical state offense, she would face a maximum municipal fine nine times greater and jail time 36 times longer than Colorado law imposed.

Camp challenged the legality of Westminster’s ordinance, but the prosecution defended the city’s right to penalize theft more harshly under its inherent authority.

“Theft in Westminster happens in Westminster. Theft in Westminster affects Westminster retailers. When Westminster retailers are affected, they have trouble doing business in Westminster,” the city attorney’s office argued. “So, it is a local concern to address that criminal behavior.”

While Camp’s case was pending, law enforcement in Aurora charged Danielle Ashley Simons with trespass and motor vehicle trespass under the city code. Had she been prosecuted in state court and found guilty, the maximum period of incarceration would have been 120 days and a $750 fine for the more serious motor vehicle offense, and a lesser penalty for ordinary trespass. Instead, she faced up to 364 days in jail and $2,650 for both municipal offenses.

After municipal court judges rejected the defendants’ challenges, Camp and Simons turned to the Supreme Court.

Same courthouse, different outcomes

Both cases, which presented identical legal issues, attracted numerous outside organizations.

The Colorado Municipal League defended municipal courts’ ability to relieve state courts of certain criminal matters, and argued that uniformity in sentencing “is not a virtue.” Moreover, defendants should not be “surprised” when they commit an offense in a jurisdiction that has chosen to punish the conduct more harshly, the league argued.

The Denver District Attorney’s Office and Denver City Attorney’s Office also weighed in, noting there were almost 13,500 cases prosecuted in Denver’s municipal court in 2024. The offices argued the state’s lower penalties would “significantly limit” the city’s ability to enforce its own ordinances.

The municipal public defender offices for Denver and Aurora, meanwhile, challenged that argument. They said municipal defendants have a greater incentive to plead guilty because of the longer jail time, and officers can arbitrarily choose to initiate a case in state or municipal court when the alleged offense is identical at each level.

“The only division between the two court systems is that the courtrooms, which hear state cases, are on the third floor of the (Denver) Lindsey-Flanigan Courthouse, while the courtrooms, which hear municipal cases, are on the fourth floor of the same courthouse,” the defender offices wrote. “A person’s sentence can be as much as 30 times higher for the same alleged misconduct if they get off the elevator on the fourth floor instead of the third.”

A path forward?

During oral arguments, the justices signaled to the parties that one line of argument is stronger than the other.

Since 1961, Colorado’s principle of equal protection of the laws has differed from that of other states and of the federal government. The Supreme Court has adhered to the notion that an equal protection violation occurs when two laws prohibit identical conduct, but one law imposes a harsher punishment.

However, the Supreme Court has never applied that principle to identical offenses at different levels of the justice system.

“You and I could be shoplifting in the same place and each be charged separately. No explanation,” argued attorney Amy D. Trenary on behalf of Simons. “How do we explain to her why she is facing in year in jail, but someone else who did the exact same thing is limited to 10 days and $300?”

She added that deterring criminal behavior through tougher sentences is impossible when someone does not know whether they will be charged under the state or municipal system.

However, Márquez suggested it would be problematic to find an equal protection violation. What if two localities imposed punishments that were less than the caps in state law, but one municipality’s penalties were substantially lower?

“My concern is the equal protection resolution to this case opens other questions,” she said. “So, is there not a reason to lean into the preemption resolution?”

In contrast, the justices were more open to the argument that state law preempts municipalities from imposing harsher punishments.

Despite their home rule status, “there’s no direct constitutional provision that says municipalities can sentence regardless of what the state does,” observed Justice Richard L. Gabriel.

Looking at the 2021 sentencing reform legislation, “it becomes clear to me that the legislature really, really meant to try to provide more uniformity,” added Samour. “And I don’t get the sense that they meant, ‘Well, we only meant the parts of Colorado that don’t deal with municipal ordinances or violations. All the hundreds of thousands or whatever number of people you have who go through municipal court, they can continue to experience disparity in sentencing.'”

A failed attempt to legislate

At the time of oral arguments, House Bill 1147 was awaiting the governor’s signature. The legislature enacted the measure this year to, among other things, clarify that municipal penalties may not exceed those for “comparable” state offenses.

While acknowledging the forward-looking bill would not affect Camp and Simons’ cases, the justices were, nonetheless, curious about its significance.

“If Gov. Polis vetoes 1147, do we draw any inferences from that?” asked Samour.

Three days later, Polis rejected the measure. He cited the restriction on municipalities’ sentencing powers as the reason for his veto.

“Specifically, this bill would undermine numerous local ordinances that have been thoughtfully debated and adopted to address locality-specific crimes, including bike theft, assault, and domestic violence,” he wrote.

Polis indicated he would support a bill “more narrowly tailored to specific crimes where penalties between the state and local criminal codes are far out of balance.”

Finally, Polis deflected to the Supreme Court, saying it “would be informative to see” what the court decides before changing the law.

The cases are People v. Camp and People v. Simons.