Boulder becomes epicenter of fight against criminal justice reform

Photo by Emiliano Bar on Unsplash

Saturday, March 20, 2021

Employees harassed to the point of quitting. Windows broken. Merchandise stolen. And, again and again, the perpetrators free to return to the scenes of their crime.

At Tuesday’s city council meeting, a half-dozen speakers during the open comment period shared story after story of how crime had impacted their downtown businesses. One, Robert Mess of Fast Eddie’s hot dog cart, shut his business down after threats from a man he called the cops on, released from jail due to COVID-limited capacity.

“I had to make a choice,” Mess said. “My safety or my business.”

Some of the business owners took their concerns to state lawmakers, opposing a piece of legislation that would end cash bail and arrests for low-level crimes. They were joined by Police Chief Maris Herold, forming a contingent that drew the attention of onlookers and reporters perhaps surprised by the strong showing from a “liberal” city.

Their collective actions have put Boulder front-and-center in the fight against a bill backed by the ACLU that lobbyists say is likely to pass despite the small pocket of resistance.

“We look at Boulder as ground zero,” said Denise Maes, public policy director for the Colorado ACLU. “That’s where the most vocal opponents are.”

Innocent until proven guilty — but still sitting in jail

SB21-62 was introduced in the Colorado Senate in February; it passed 3-2 out of the Senate Judiciary Committee earlier this month. It has two significant parts; the first would effectively end cash bail for misdemeanors and other non-violent crimes.

That’s important because the majority of people in jail are there pre-trial, simply because they can’t afford to post bail, multiple studies have found. That amounts to discrimination based on income, the ACLU has argued — which, because of structural inequalities, often means racial discrimination as well. Persons with disabilities and mental illness are also overrepresented in jails. Sheriff Joe Pelle said that up to 70% of people in Boulder County jail at any one time have a diagnosed mental illness.

People that will be helped by SB62’s passage, “they are innocent,” Maes said. “They have not been convicted of a crime. (The bill is) going to keep fewer people out of jail that are presumptively innocent and are only there because they are too poor to pay bail.”

Read the full text of the bill

The second part of the legislation has to do with arrest standards: That is, when police take someone into custody versus issuing an order to appear in court. A whole slew of low-level crimes would be met with summons rather than arrests. There are many exemptions, including for DUI, sex offenses, or violations of protection orders.

It is this element which has drawn the majority of opposition. Critics worry that, if not locked up, alleged offenders would continue to commit crimes. That’s what has happened during the pandemic, with jails unable to hold most non-violent offenders due to the risk of COVID.

“We have people out in the community right now (with) 15-16 failures to appear,” Pelle said this week, echoing Herold’s complaints. “They’re getting notices to go to court and just not going.

“Justice is being delayed for a lot of people because there are no consequences”

However, COVID is to blame for that; SB62 wouldn’t replicate those circumstances. In fact, most of the arrests standards in the bill are not that different from Boulder County’s normal operations, according to Sheriff Pelle. He has been working with the ACLU since June to refine the language.

“It’s more analogous to how things were before COVID,” he said. “The restrictions we have in place right now are more restrictive than the bill.”

Council position: Amend or oppose

SB62 does have provisions to allow arrest of repeat offenders. One of the many exceptions includes situations where “the arresting officer documents a reasonable suspicion to conclude the person has indicated a clear unwillingness to cease and desist in criminal behavior.” It also allows arrest if cops can document that the suspect is a threat to public safety.

That has led to another set of concerns with the legislation: How much discretionary power is given to officers. Given historic racial disparities in policing, giving officers too much leeway may exacerbate those inequities.

At a Thursday meeting of council’s Intergovernmental Affairs Committee, councilman Mark Wallach called it a “litigation nightmare.” Chief Herold said it goes against the goals of police reform currently being pursued in Boulder.

That committee — Wallach plus Junie Joseph, Sam Weaver and Aaron Brockett — decided Boulder would take an official position of “amend,” meaning they would not support it without changes.

Among Boulder’s requested amendments:

  • Suspects could be arrested after one failure to appear in court following a summons (rather than three; Sheriff Pelle said Friday that change had been made)
  • The list of non-arrestable crimes should not include more serious felonies or, in Pelle’s opinion, motor vehicle theft
  • Crimes committed with any weapon would still be arrestable offenses. The current language calls out firearms only.

There have already been significant changes, bringing the County Sheriffs of Colorado and the Colorado District Attorneys’ Council to neutral positions. Those groups were previously opposed.

Fears ‘not based on nothing’

Part of the problem with public perception of SB62 stems from ACLU assertions that COVID-related jail closures have not correlated with an increase in crime. The group maintains that, statewide, crime has remained relatively flat.

Local law enforcement have major issues with that data. Their own suggests precipitous increases in property and violent crimes.

Whatever the data says, businesses are feeling the impacts of crime more than ever.

“Businesses are really frustrated, and it’s not based on nothing,” said Chip, who testified against SB62 on behalf of the Downtown Boulder Partnership. “Businesses are looking for some help, and this bill seems to be moving in a different direction.” 

Three business owners opposing the bill — Russ Chandler of Full Cycle; Jon Banis of Japango and Connie Brenton of Art Mart — had their shops burglarized. The suspects were back on the streets soon after.

Downtown workers and owners interviewed by Boulder Beat shared similar stories. The message they got from cops, they said, was that nothing could be done because the jail wouldn’t take these suspects.

Chip knows that jail restrictions are just one piece of the puzzle. But when that is the message constantly shared by officers explaining why known criminals are roaming Pearl Street, he’s not surprised businesses took up the cause — “especially when the police chief is saying this is the reason.”

Herold has been quite vocal about jail restrictions, belaboring the point numerous times to city council. She used her most recent town hall to encourage residents to “really look at” and “talk to legislators” about SB62. Though she didn’t explicitly encourage opposition, she made her own feelings clear.

“Personally, I just think that this is not the right time to explore that bill,” Herold said. “I don’t think it’s in the best interest of Boulder at this time. … (There is) community harm I think we’ll be looking at if the bill is passed the way it is written now.”

Her repeated warnings have apparently been heeded. Sheriff Pelle said he has heard from many perturbed — if, at times, misinformed — community members.

“Since I became sheriff over eight years ago, I’ve been under intense public pressure to keep the jail small, to fund alternatives to incarceration, to fund and provide diversion and work release and day reporting programs,” he said. “In the last year, (it’s been) pressure in the opposite direction.”

A year of anomalies

Jails are limiting population, but that’s just one of many factors likely driving crime, according to Sheriff Pelle and District Attorney Michael Dougherty. Trials have only now re-started. Nearly every service available to inmates has also been reduced or eliminated, including funding for and access to mental health and addiction treatment. (Herold did acknowledge these factors Tuesday.)

“So we’ve got a terrible downturn in the economy, a lot of people experiencing homelessness, a new set of people experiencing joblessness or under-employment, closed businesses (and) restaurants with no one around, cars sitting in driveways and alleys for weeks without being used — this whole kind of culmination of a bunch of different factors that spiked crime,” Pelle said. “I think 2020 and perhaps 2021 are kind of the anomalies on crime rates, because of all this strangeness.”

“It’s too easy to say there’s restrictions at the jail so crime has gone up,” Dougherty agreed. “The data doesn’t reflect that.”

For those reasons, both men are hopeful that change will be coming soon. The governor on Friday announced an easing of business restrictions; half of Coloradans are now eligible for vaccines.

I think by summer there will be more of a return to normalcy,” Pelle said.

Some things, though, will take longer. Amid a brighter spotlight on police misconduct, both BPD and the county are shedding officers — and fast.

“We have a record number of deputy sheriffs leaving or resigning or retiring early,” he said. “And we haven’t had tremendous recruiting success. So there’s fewer cops on the streets to do the work.”

Herold on Tuesday said the police department has experienced “a tremendous loss of officers this year,” more than double the preceding five years. She will return to council April 27 with the results of a workload analysis to possibly request more resources.

Losing patience, compassion

The damage to criminal justice reform may be a long-term loss.

“Two things that jeopardize criminal justice reform is a lack of infrastructure and support (for the community) and increases in crime,” Dougherty said. “When people feel they’re in danger or not safe, they’re less likely to support alternatives to incarceration.”

If SB62 fails — something Boulder’s lobbyists say is unlikely — it would impact thousands of Coloradans. In contrast, the number of repeat offenders who are “wreaking havoc” on downtown, according to Chief Herold, is incredibly small.

Nine repeat offenders were identified between Jan. 1 and March 16 of this year, responsible for 36 enforcement actions, including 24 arrests. (Information on 2020 repeat offenders was not shared.)

View data on downtown crime

That’s always how it is, Pelle explained.

“We know that a small number of people commit the majority of crimes,” he said. “We know that if you can deal effectively with them, you can reduce crime across the community.”

The tools used to do so have been largely unavailable during the pandemic. That will soon change: Jail staff have been vaccinated and can begin taking repeat offenders into custody. But Pelle cautions that Boulderites should not expect increased capacity to be a panacea.

“Putting people in jail for minor offenses overnight or for a day isn’t going to change the behavior,” he said. “It’s not going to change the underlying causes of homelessness, mental health problems, addiction. People can’t have all their expectations wrapped around the jail.”

Dougherty, too, bemoaned the lack of funding for services, particularly mental health. In that, both men are aligned with the ACLU.

We need to put more money into the safety nets that people really need,” Maes said. “Jails and police are not going to solve our societal woes. Nobody gets well in a cell.”

Mike Horowitz, who operates a hot dog cart on the Pearl Street Mall, knows jail is not the appropriate place for some of the worst offenders, who he believes are mentally ill. But he wants something to be done to combat the rising threats and theft he’s been exposed to this year, even if it’s simply banning problem individuals from the mall.

“I’ve never felt this unsafe,” said Horowitz.

Multiple downtown business owners and workers interviewed by Boulder Beat aren’t opposing SB62, or weren’t even familiar with it; some shared surprise or outrage at having their concerns conflated with support for organized opposition. But all expressed the same desperation for action.

One employee said the constant harassment is costing her something greater than support for criminal justice reform. (In fact, she believes social workers are better positioned to get people help than cops.) Her experiences have led to a loss in empathy.

“Even my boyfriend is like, ‘You’re not as compassionate as you used to be,'” said the worker, who requested anonymity as the victim of a sex crime. The man who exposed himself to her had numerous infractions of a similar nature.

It’s not that I don’t have compassion, but it’s hard. I really do worry every day. Do you know what it’s like to be afraid? I’m always on alert. This isn’t something that’s happened during the pandemic. This has been going on.”

— Shay Castle,, @shayshinecastle

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