At Colorado’s Capitol, prosecutors no longer rule the roost

Tom Raynes has helmed the Colorado District Attorneys’ Council for a decade. It used to have a lot more power, he said, recalling a talk he had years ago with his predecessor.

“He said, ‘In my day, I’d pick up the phone and call the Senate majority leader and say this or that needs to happen and it would happen,” Raynes said.

Raynes, a Republican and a former DA, said that now, “by no means do the seas part when we enter the building. Trust me. Some of the recent reform stuff has been personally frustrating.”

Compared to previous decades, state lawmakers today are more willing to sponsor and pass bills without the blessing of district attorneys, the most potent group in the law enforcement lobby. There is a crop of representatives and senators today who regularly put forth bills that prompt debate about the intersection of class and race with policing, incarceration and courts.

“I went to the General Assembly intentionally looking to dismantle the criminal justice system that has been unjust,” said Leslie Herod, a Denver Democrat and a prolific legislator on this topic. “Efforts made previously were substantially weakened and didn’t have the support of even the Democrats. … We have seen a huge shift.”

The district attorneys have changed, too. There’s less unanimity among them now, Raynes said, as more of them run on reform platforms, “and I don’t see that necessarily as a negative.”

The upshot is a gradual power shift at the Capitol on policing and criminal justice.

This was exemplified this year by the legislature pursuing a range of changes for law enforcement, sometimes over the protests of police and prosecutors. And lawmakers since 2019 have written new police accountability measures, made sentencing less harsh and pushed for long-term limits on jail and prison populations, including for children in the juvenile system.

They very nearly passed a bill this spring — SB21-273 — to force police to ticket more and arrest less for misdemeanor crimes and to force judges to release more people after arrest, though it died just before the session’s final gavel.

Such a bill would have had no legs 10 or 20 years ago, but a third of district attorneys supported it. It had legs this year, but sponsors also saw firsthand how fierce opposition from law enforcement can go a long way and that no big criminal justice reform is a layup in Colorado, even with Democrats in charge. It died because two Democrats — one of whom, Rep. Matt Gray, is a former prosecutor — voted against it.

When Norma Anderson of Lakewood served as a Republican leader in the House and Senate, 1987-2005, “it was law and order. We believed in that, as a body, Democrats and Republicans.

“We voted against (law enforcement) occasionally,” she said, “but there was a lot of bipartisan buy-in.”

Back then, district attorneys would see to it that the legislature ran two omnibus bills every year — one concerning criminal trial procedures and another concerning criminal law — and lawmakers seldom dared to touch them.

Even more recently, prosecutors mostly got their way, as shown by national research published this month from the University of North Carolina. Between 2015 and 2018, the report found, prosecutors in Colorado generally were successful at passing or killing legislation; bills they backed were 20% more likely to pass.

Colorado prosecutors’ lobbying success rate was much higher for that period than the national average, said Carissa Byrne Hessick, a law professor who directs the Prosecutors and Policy Project at UNC.

“The Schoolhouse Rock vision of prosecutors — that they’re the ones that enforce the law — it wasn’t accurate. It lacks nuance,” she said. “In some states, including Colorado, their role is formalized.”

So much so that former Democratic lawmaker Dan Grossman of Denver remembers how radical it was when he stood up to law enforcement on a bill in 2005.

“(T)he first time we rolled the DAs was on including sexual orientation in the hate-crimes law,” said Grossman, who at the time chaired the Senate Judiciary Committee. “They very forcefully argued this was not the right venue for this debate.”

The head of the District Attorneys Council at the time, Bob Grant, said he hadn’t seen such a move in 28 years.

Overall, though, many of the bills the DAs supported then and in recent years were popular for good reasons, Grossman said.

“Most of the time they were common-sense changes,” he said. But he notes: “There was no omnibus criminal defense or public defender legislation.”

“Really difficult, very toxic”

Raynes believes that today there is no more influential force at the Colorado Capitol in this area of policy than the ACLU of Colorado. The organization has pushed or supported a wide range of jail and prison reforms, led the charge to abolish the death penalty and wrote large swaths of the policing bill passed during the protests. They were behind SB21-273, too, and are hoping to end cash bail in Colorado in the coming years.

The ACLU has had this run in large part because the legislature is now dominated by Democrats and has more members of color than at any time in state history. Republicans are also increasingly open to limiting the power of the law, endorsing some reform bills on policing, sentencing and limits on court fines and fees.

Raynes said the district attorneys’ relationship with legislators “has been at many times strained and contentious.” Herod said conversations this session on criminal justice and policing were “really difficult, very toxic.”

“Not having a partner in law enforcement at the table was difficult, not being able to work with them proactively,” Herod said.

Lawmakers told The Denver Post they’ll keep pressing.

“Do I listen to my DA? Well, I respectfully talk to him,” said Sen. Pete Lee, a Colorado Springs Democrat who chairs the House Judiciary Committee and led the charge on SB21-273 and lots of other law enforcement bills during his tenure. “I have absolutely no reluctance to propose policies that they disagree with.”

But lawmakers still at times show a deference to law enforcement that is rarely afforded to other groups in the lobby. The bill to lessen penalties for some people convicted of felony murder and another bill concerning record-sealing were amended to cool law enforcement opposition. Facing strong pushback from district attorneys, lawmakers also gutted a bill to overhaul the state’s Sex Offender Management Board. And a bill to restrict police directing use of ketamine and other drugs on so-called hysterical subjects passed only after being watered down.

That law enforcers double so often as law changers is appropriate, Raynes said.

“Who should have impact on criminal justice and public safety legislation on the highest level?” he said. “I’d argue it’s the ones who practice it everyday.”

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