Saturday, April 10, 2021 (Updated Monday, April 12)

Boulder elected officials this week decided to back a jail reform bill that, if passed, would end cash bail and pre-trial jail time for people accused of non-violent and lower-level crimes. Lobbyists believe it’s likely to become law, but proponents are concerned that opposition — initially coming primarily from Boulder — has begun spreading to other cities.

“In the months of meaningful deep work that has made this bill stronger … there has been one city from which opposition has disproportionately emanated: Boulder, Colorado,” said Elisabeth Epps, an abolitionist and founder of Colorado Freedom Fund, which pays bails for Coloradans detained in jail.

“To hear so many white and white-presenting folks talk about what is best for racial justice is disgusting,” Epps said. “Much of the opposition to SB-62 has been misinformation, but much more has been outright racist dog whistles, with the most hostile opposition to this truly progressive legislation coming from a city that I naively thought and hoped would be progressive.”

Violent crimes not included

Boulder as an entity was never officially opposing SB21-62, but business owners and Police Chief Maris Herold have been vocal critics. The city itself originally took an official position of “Amend,” meaning it is neither for nor against the bill in its current form. That left open the possibility that, as the legislation changed, so could Boulder’s stance.

City officials’ biggest beef was the list of crimes that cops couldn’t arrest for. They asked that all felonies be excluded, something the ACLU — which has been instrumental in SB-62’s formation — and other defenders argued would “gut” the bill and defeat its core purpose: To keep non-violent people out of jail.

“If we’re going to bring our neighbors home,” said Epps, this is where we’re going to start: “With behavior we’re uncomfortable with that isn’t a safety risk.”

The classes of felonies being considered include crimes like manslaughter and vehicular homicide but also identify theft, criminal mischief and many types of bribery, forgery and fraud, along with a litany of other nonviolent offenses. Plus, manslaughter, vehicular homicide and any violent crimes are already exempted: The long list of victims rights offenses — including sexual assault and abuse, domestic violence, robbery, etc.  — would still be arrestable offenses, whether misdemeanors or felonies.

See full lists of Class 4, 5 and 6 felonies in Colorado

“All the victims rights offenses have been carved out, the violent offenders have been carved out,” Boulder County District Attorney Michael Dougherty said Friday.

Police officers could still arrest for felonies if they deemed suspects a risk to the safety of others or likely to keep committing the alleged crime. Boulder’s amendmentChange made to existing documents, resolutions, or ordinances would have exempted all felonies, making them automatically arrestable offenses, whether violent or not.

‘Begging you to listen’

Officer discretion was another sticking point for council members. The bill does include immunity for arresting officers based on their determinations, according to ACLU Senior Policy Counsel Rebecca Wallace, prompting Boulder to withdraw its ask that “bond officer(s) using an impartial risk assessment matrix” — not cops — make determinations on which offenders pose a threat to public safety.

But some council members still worried it could exacerbate existing racial disparities in arrests.

“How does that assessment, being made on the fly, not introduce additional bias?” asked councilwoman Mary Young.

Read a Twitter thread of Tuesday’s discussion

Proponents pushed back on that assertion. The criminal justice system has bias built in at all levels — including the risk assessment matrices used to set bail. Putting fewer people into that system by reducing arrests can only be a net good, they argued. Plus, cops already exercise enormous discretion.

“Every police interaction — who to stop, who to question, who to investigate — is already colored by bias,” said Neil Sandhu. “The solution is not to simply arrest everybody.”

Council needs to trust the racial justice advocates who stand behind SB-62, many people said. Supporters include Black Lives Matter 5280, Boulder County’s NAACP branch, the Colorado Immigrant Rights Coalition and the Black and Latino Democratic caucuses.

“There’s so many racial justice advocates out there directly saying that this bill is needed; they’re screaming at the top of their lungs for you to listen,” said Kristen Eller. “Boulder is currently holding up progress in Colorado when we could be setting up an example.”

“Trust that people know what’s best for them; don’t tell them what’s best for them,” added Lindsey Loberg, chair of Boulder’s Human Relations Commission. “Don’t undermine the work and act like they don’t know what they’re doing.”

Increased crime has spurred Boulderites’ fears about the bill. But as proponents and some local law enforcement officials noted, there are many reasons for the uptick in criminal activity. And the arrest standards set by SB-62 are more similar to Boulder County’s pre-COVID operating procedures, Sheriff Joe Pelle told Boulder Beat; he has been working with the ACLU since June to write and reform the legislation’s language.

The bulk of opposition has come from Chief Herold and downtown business owners, who traveled to Denver to speak against the bill at a Senate judiciary committee hearing. None testified Tuesday night, but their influence was still present.

“Frankly, I would have been a little more persuaded if I had heard these expressions of support from a number of downtown business owners who actually have experienced thefts, break-ins and damage to their businesses,” said councilman Mark Wallach. “I did not. I did not hear any of that.”

Several victims of crimes spoke Tuesday, including multiple survivors of intimate partner violence. They noted that victims rights groups are backing the bill.

“While I was in an abusive relationship, there were many things that could have protected me, but locking up more of my neighbors for low-level offenses was not one of those things,” said Dana Steiner. After their “partner’s roommate, who often stood up for me” was arrested for a non-violent drug crime, “the abuse escalated quickly.”

“I am begging you to listen to people of color and actual survivors instead of lobbyists and police,” Steiner said.

Police pressure

But other major groups have swung the other way since council took its initial position, including the Metro Mayors Caucus, Colorado Municipal League and County Sheriffs of Colorado. That “creates more doubt” about the bill’s chance of becoming law, said Boulder’s chief policy advisor Carl Castillo.

Castillo and other lobbyists initially said SB-62 was likely to pass, and that Boulder’s influence was limited. But the ACLU is worried that Boulder is beginning to influence other cities.

During Tuesday’s hearing, Wallace attributed the Sheriffs’ association’s abrupt about-face entirely to pressure from police leaders who spread “inaccuracies” to elected officials “all over the state.”

“Upon introduction, the sheriffs were neutral on the bill,” Wallace said. “What happened after that, and I have to say Boulder played a significant role, and Chief Herold in particular … started putting enormous pressure on sheriffs for having gone neutral. … Nothing changed about the bill.”

That, combined with rising crime in some cities like Boulder, created “a perfect storm,” Wallace said, and “led to a knee-jerk reaction of no criminal justice reform” during this time.

DA Dougherty on Friday said “a lot of people are reacting to the first draft of the bill,” which has since been refined — with considerable law enforcement input. But there is still legitimate debate about issuing summons for non-violent crimes such as car theft, he said.

“If someone breaks into three cars on the street at night and Boulder PD stops them, should the officer give them a ticket or take them to jail?” Dougherty said. “Whatever’s driving that person (to commit crimes), if they’re left on the street, they’re still struggling with whatever” it is.

That has been of particular concern to downtown business owners, who have suffered repeated break-ins and burglaries. Though, again, repeat offenders and suspects deemed likely to re-offend could, under SB-62, be detained; that they haven’t during COVID is due to public health restrictions on jail population, circumstances that would not be replicated by this legislation, Sheriff Pelle has said.

In the weeds

There seemed to be substantial confusion over what crimes officers would have to issue summons for, versus taking alleged offenders into custody. The ACLU’s Wallace on Tuesday admitted the language could be more clear, and Boulder’s position of support hinged on clarification over what crimes were exempt.

Castillo said further revisions are almost certain. Council’s vote to support with amendments was 6-2, but even the two dissenters — Rachel Friend and Adam Swetlik — did so because they believed Boulder should support the bill as written.

“I don’t know enough to say what is a substantive change and what is not,” Swetlik said, “so I will defer to those who have been working on this bill for a year.”

It is rare for Boulder’s council to spend so much time on a single piece of state legislation, Castillo said.

“In 16 years of work, I’ve never had this many people to testify on a bill that’s being decided by the state. I’ve never had council dig into the weeds so much. I think it’s fair to say that the proponents think we have a lot of influence. I suspect the calculation is for a progressive bill like this to pass, it doesn’t look good for a progressive city like Boulder to be opposed to it.”

Legislators were this week focused on Colorado’s budget, but attention might return to SB-62 next week, according to Castillo. Find up-to-date information on the bill.

Author’s note: This article has been updated with Dana Steiner’s name.

Snapshot: Boulder County jail

On Friday, April 9….

294 individuals in facility
(Pre-COVID capacity: 543)
200 being held pre-trial (68%)
28 waiting to be transferred to state prison facilities
184 have diagnosed mental health disorders (63%)

Source: Boulder County jail, via DA Michael Dougherty

— Shay Castle, boulderbeatnews@gmail.com, @shayshinecastle

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Governance Police ACLU Colorado Adam Swetlik arrest standards bail reform Boulder Boulder County Jail cash bail city council city of Boulder Colorado Freedom Fund Colorado Senate cops courts crime criminal justice reform Elisabeth Epps felonies jail Maris Herold Mark Wallach Mary Young misdemeanors NAACP police Rachel Friend Rebecca Wallace Sheriff Joe Pelle