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COVER STORY: THE EQUAL JUSTICE PUZZLE | Sen. Pete Lee vows to keep searching for the missing piece on pre-trial reform

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Criminal justice system

Man in prison

Sen. Pete Lee is putting together a puzzle.

The image at its center: an end to “the level of over-incarceration in Colorado and the United States” that the Colorado Springs Democrat and former corporate attorney says he’s become “acutely conscious of.”

That awareness grew out of convincing numbers. The advocacy nonprofit Prison Policy Initiative pegged Colorado’s incarceration rate at 635 per 100,000 people, just shy of the 698 per 100,000 mark for the United States as a whole.

Compare that to the United Kingdom, where the rate sits around 140 per 100,000, or Canada at 114 per 100,000, or France at just more than 100 per 100,000, or Italy at 96 per 100,000.

“Obviously we're not six times more criminogenic than people in other parts of the world,” he said. “We have criminal justice policies that promote incarceration. It's our default response to misbehavior.”

Since coming to the General Assembly as a state representative in 2010, Lee has been working to change that default response.

Sen. Pete Lee

Colorado Sen. Pete Lee talks to Colorado Politics about social and criminal justice in 2018.

He helped write restorative justice programs into state laws. He led an effort to reduce physical manhandling and restraints on youth in custody and cut down on the number who return or wind up in prison. He sponsored a bill to cut the amount of jail time for those who commit only technical parole violations in non-violent cases and steer the savings into the community programs that could get the roots of crime — poverty, joblessness, drugs, mental health and education.

The legislative session that ended this month was no exception, to name a few:

Each snapped perfectly into place in Lee’s big picture.

A key piece is still missing: Lee’s attempt to reform the pre-trial detention process.

He thinks he can reshape the outcome by clamping down on the use of arrests and cash bail. His bills to do that were tripped up before crossing the legislative process’ finish line.

According to the bill sponsors and proponents who testified on its behalf, it was a dual benefit. First it would end the criminalization of poverty wherein offenders who commit low-level offenses are kept in jail because they can’t make bail. Lee said the legislation also sought to “alter the mindset of police when they're going into an encounter from one of arrest, subdue and incarcerate to one of ticket and summons.”

“Sixty-plus percent of encounters between police and citizens are over low-level offenses, what I call poverty offenses or street offenses, and those offenses are what can escalate if the mindset is one of subdue and incarcerate,” he said.

The policy drew strong pushback from a flank of law enforcement leaders, as well as some prosecutors and judges.

“I know many of the chiefs are in favor of finding a better system, but they don't want to find that system to the detriment of their community members and the victims of crime,” Steamboat Springs Police Chief Cory Christensen said in an interview.

Colorado Springs Police Chief Vince Niski told the Senate Judiciary Committee he believed Lee’s bill would “impact our community so negatively that we will see crime increase significantly over time.”

He added what sounded like a mission statement: “I have a commitment to my community to protect and serve them. I think this takes away some of my ability to do that.” 

Lee countered that the policy would be a boon to public safety by keeping so-called “low-level” offenders in stable environments at home rather than yo-yoing back and forth between jail with the negative impacts to employment, physical and mental health that come along with being behind bars.

He added that he found law enforcement are as intransigent as they come when trying to rework the M.O.

“Basically we were telling the police you have to do things differently than you've ever done them and no one wants to do that,” he said.

Dismay, frustration, sadness

First came Senate Bill 62, which Lee ran along with Rep. Adrienne Benavidez, D-Denver.

The legislation would limit arrests to only upper-level felonies, except victim rights cases, sex crimes and gun violations.

The bill would have also prohibited courts from issuing monetary bonds for alleged offenses that rise to those same levels unless the court determined the defendant is a flight risk or threatens the safety of a member of the community.

While SB 62 drew support from advocates and organizations such as the Colorado chapter of the ACLU, it gave Lee’s colleagues in the Senate enough heartburn that he was forced to scrap the effort and start anew after the legislation stalled in the Senate Appropriations Committee. Lee told reporters in May he opted for that move because “some of the narrative about [SB 62] had turned quite negative; people didn't fully understand what we're trying to do.”

Enter Senate Bill 273. Along with Lee, influential Sen. Dominick Moreno, D-Commerce City, and Rep. Jennifer Bacon, D-Denver, joined Lee and Benavidez as prime sponsors.

Lee’s “new vehicle to serve as a conduit for the change that we want to make in the criminal legal system” dropped the arrest ban for all felony offenses, which garnered it enough support to get out of the Senate and pass the House Judiciary Committee.

Then members of Lee's own party in the House Finance Committee scrambled the pieces he needed to complete the puzzle.

Chair Shannon Bird of Westminster and Rep. Matt Gray of Broomfield voted with Republicans to postpone, statehouse jargon for deep-sixing a bill.

Neither explained their vote, which is unusual.

“Disappointment and frustration and sadness,” Lee said of that result.

He attributed Gray and Bird’s votes to the end-of-session legislative crunch. With a bulk of the session’s legislation still outstanding in its waning days, Lee said he simply didn’t have time to sit down for a substantive conversation on the bill.

He viewed Gray, a former prosecutor, as the swing vote. Lee noted Gray was immersed in negotiations of his own on the POWR Act, a workplace anti-discrimination and harassment bill that also died in the session’s final days.

“He and I didn't have a chance to sit down and thoroughly discuss all of what we're trying to do with the bill and to try to break him away from being influenced by the police departments,” Lee said.

Denise Maes of the ACLU of Colorado, a key proponent of the policy, was less forgiving. She cited lobbying by law enforcement organizations as a factor in SB 273’s defeat.

“I think it is unfortunate that we had two Democrats who listened to their one constituent, their chief of police, and not to the larger constituency that is calling for reform,” she said.

Sen. Pete Lee signing SB124

Sen. Pete Lee, D-Colorado Springs, comments on Senate Bill 124, which changes the sentences for felony murder, during an April 26, 2021, signing ceremony.

Irrevocable opposition

According to Lee, nearly all law enforcement officials were “irretrievably, irrevocably opposed to that bill.” The Colorado Fraternal Order of Police, County Sheriffs of Colorado, the Colorado Association of Chiefs of Police, Colorado Police Protective Association and the Colorado Municipal League on behalf of local law enforcement agencies all testified or otherwise registered their opposition to the bill.

Christensen, the president of the Colorado Association of Chiefs of Police, put some of that opposition down to what he described as a lackluster stakeholding from the bill’s sponsors.

“If you take the legislative session overall, we felt things went well when we were engaged as stakeholders and we struggled with many bills where we were engaged the day before,” Christensen said, indicating both SB 62 and 273 were “thrown at us at the last minute.”

Other police chiefs and high-ranking law enforcement officials testified in hearings that the bill would move the state further away from Lee’s overall goal of improving public safety.

“This completely takes away our discretion in dealing with repeat offenders and unfortunately while these crimes are labeled lower-level, they affect thousands of crime victims,” Niski said in a May hearing. “We all agree this bill is going to reduce arrests, monetary bail and jail populations, but no one has said it will reduce actual crime and no one has a backup plan if crime spikes further because of it.”

Discretion was the watchword for District Attorney John Kellner, who testified against the bill that he felt it took away discretion from law enforcement officers and judges.

For the police, Kellner said the SB 273 “really limited situations in which they could make arrests for a lot of misdemeanor offenses.”

“We can have an honest policy discussion about that but there needs to be a safety valve in place too,” he said. “If somebody doesn't stop their criminal behavior, doesn't cease doing what they're getting a ticket for, a police officer needs to have within their toolkit to arrest if necessary.”

Kellner also questioned how the bill would affect judges, a similar concern to one raised by Colorado Springs Municipal Court Presiding Judge HayDen Kane.

Kane testified in May opposition to the personal recognizance bond provision, which he noted had been the de facto policy in Colorado Springs during the pandemic after the county sheriff’s office indicated it wouldn’t be able to hold suspects in jail.

“We had progressed from about 2 in 3 people showing up to court to — after word on the street, not even codified, was there are no consequences for not showing up to municipal court, you just need to sign for another court date — that rate has fallen to almost 1 in 3, so about a 30% drop in the amount of people that are appearing at municipal court,” he said.

Those concerns resonated with Sen. Bob Gardner, R-Colorado Springs, as did other potentially unintended consequences that could stem from the PR bond provision. He cited an example of a person who is ticketed for an offense and subsequently commits another offense while waiting for his or her day in court.

"The message to that person, however unintended, can be, 'Well, this is no big deal,'" Gardner said in an interview. 

Outgoing GOP lawmakers share memories

Colorado Springs Rep. Bob Gardner, Republican, right, talks to Democratic Rep. Pete Lee, also from Colorado Springs, after the two were sworn in to serve the state’s second largest city in January of 2011. File photo by The Colorado Statesman

Muddy waters

In the face of that opposition, Lee and the bill’s proponents repeatedly accused those on the other side of the issue of attempting to muddy the waters with inaccurate information. Lee singled out his Republican colleagues Gardner and Sen. John Cooke of Greeley.

“If I was in a different forum with a guy with a black robe, I would put my hand in the air or stand up and say, ‘Objection sir, irrelevant,’” said the barrister turned lawmaker. “They were talking about all these things that were not things that would have occurred under the bill.”

Gardner rebuffed those charges, adding he and Cooke "take our responsibilities and representation of our constituents very seriously."

"To accuse us of spreading misinformation is tantamount to an attack on our integrity," he said. "I do recognize that there are different views about the bill does what its impact will be but to characterize those as misinformation is simply to descend into borderline name calling and I'm disappointed."

Maes, meanwhile, took aim at some of the stakeholders on the other side of the table.

“Really what prevailed was police fear-mongering and wanting to expand their discretion rather than limit it,” she said.

As an example, she pointed to testimony on the bill she recalled hearing that centered on concerns that law enforcement would not be able to arrest a suspected DUI offender who grew agitated and shoved a police officer.

“They kind of made it seem like it was some huge deal, and the fact is that they could arrest him because any offense involving victims was specifically excluded from the bill,” she said. “I think there was a tendency to speak about the bill as if it was broader than it was.”

Like Gardner, Christensen also rebuffed those charges.

"I know that every piece of information that the police chiefs presented was factual and true," he said.

Kellner raised the same concerns as Lee and Maes from a different perspective.

“I think it's important that when people start talking about criminal justice reform that they're honest about what the laws on the books already say and do,” he said.

He pointed to provisions from Lee’s 2019 House Bill 1225, which requires courts to issue PR bonds for offenses reaching up to the level of a class 3 misdemeanor with a limited set of exceptions.

“To listen to the people who would come and talk about these bills and testify about them, they gloss over the fact that those are already on the books,” Kellner said. “It's like they're legislating for things without recognizing the progress that has already been made, and I take great issue with that, because it undermines confidence in the justice system.”

Putting it together again

Despite the progress, Lee won't leave the puzzle unfinished.

He’s “getting my breath and catching up on the end of the session” but indicated he’s already held discussions with Benavidez and Bacon on which chamber the bill should start in next year.

He’s unsure exactly what the legislation would look like, because the pieces of the new puzzle are scrambled out before him.

“Legislation doesn't operate in a vacuum; legislation operates in the culture and climate of the community and what's going on in the community,” he said. “I still want to promote that policy, because I think it's good policy, but I don't know what the world is going to look like in January of 2022.”

As for what the rest of the stakeholders want, it depends on whom you ask.

Christensen wants conversation among decisionmakers “early and often.” Kellner is “open to any reforms so long as they're based on facts.” Meghan Dollar of the Colorado Municipal League says her organization would “remain very interested in what law enforcement has to say.” Gardner went one step further, saying reassurance from law enforcement and DAs that the policy "found the right spot" would bring him to a position of support.

For Maes, a bad result before one committee didn’t indicate a need for substantial changes, particularly because Lee felt the bill would have cleared the House if it would have made it through the Finance Committee.

“We were stakeholding this bill since last summer, so it had a year's worth of stakeholding work,” she said. “I don't think doing more stakeholder work is the answer.”

Instead of focusing on policy, Maes advocated for a change in tactics.

“I don't know exactly all of the angles, but I know one of them is controlling the narrative,” she said. “The police have a very powerful lobby under the dome and I think it's a matter of people being smart enough to know that they're being played by a police lobby."

Like Maes, Lee said he feels communication is key to ensuring the policy from SBs 62 and 273 fits cleanly into his puzzle.

“Obviously we didn't get people properly educated or we didn't deconstruct the myths sufficiently," he said. “That's the job, that's what we have to do.” 

A skilled dissectologist knows similar pieces attract one another via shape and logic. Lee has been working on the equal justice puzzle for years now. He knows the picture isn't complete, until the last piece snaps into place. 

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