The following letter was sent to Senator Fenberg on behalf of more than 100 Boulder residents April 9, 2021.
Dear Senator Fenberg,
As your constituents, we urge you to vote NO on SB21-062 unless significantly amended. The bond reforms put forth in SB21-062 are a positive step for equity, however they are bundled with arrest restrictions that hinder police and perpetuate COVID19 policies that have negatively impacted public safety.
Our collective concerns include:
Citation Reform: all felonies merit arrest
Deadly Weapons: not just guns hurt people
Crime and COVID: flawed analyses and contradictions
No Alternative to Jail: lack of treatment or anti-recidivism programs
Disproportionate Impact on People of Color: marginalized groups most victimized
Minimum Amendments sought:
All felonies, including Class 4, 5, and 6, should be exempt from the provisions of this bill
Strike requirement to conditionally exempt felonies only if an officer records a reasonable suspicion of “threat to safety” or “unwillingness to cease and desist.”
Individuals with a high probability of repeat offending or known repeat offenders should be exempt and subject to immediate arrest
No personal recognizance (PR) bonds should be issued after one Failure to Appear; only one Failure to Appear should be allowed before an arrest
The above amendments, particularly the exemption of all felonies, are widely supported by municipalities, law enforcement agencies, district attorneys, and citizens across Colorado. In response to the above requests, supporters of SB21-062 have pointed to the vague exemption for offenders who pose a “public safety threat.” This exemption is not designed to protect the officers, who must now shoulder the burden of proof to justify their arrests, but instead would allow for persecution of officers who exercise discretion outside of the restrictions of SB21-062.* As no officer will be willing to risk liability by using this clause, outside of extreme cases, arrests for Class 4, 5, and 6 felonies, which include assault, burglary, arson, motor vehicle theft, disarming a peace officer, and arming rioters will be disallowed, without exception, under this bill. The exclusion of all felonies under SB21-062 resolves the issue. If excluded, and felony offenders are arrested, then an impartial risk assessment matrix can be employed to reduce or eliminate the bail and penalties for low-risk felonies on a case-by-case basis.
Furthermore, by eliminating judicial review, SB21-062 interferes with local jail reforms already underway. Colorado counties are already reducing jail populations through local actions, which achieve the goals of SB21-062, but without sacrificing public safety. For example, Eagle County already offers home detention for qualifying work release inmates, revises bond amounts and conditions for pre-trial inmates when appropriate, and avoids arrest for low-level warrants when possible.
Under the 2020 trial-run of SB21-062 in Boulder, offenders have taken advantage of the limitations of law enforcement and brazenly committed crimes, repeatedly. The downtown business community has been bombarded by crime and residents are being victimized, including in broad daylight and while at home, by burglaries and property theft. The judiciary committee heard from several of these business owners, as did Boulder City Council.
SB21-062 is too extreme, it goes beyond the reforms other states have enacted, and it does so at the cost of the safety of all Colorado citizens.
Minimum Amendments sought:
Expand the firearm exemption to include all dangerous ordnances or deadly weapons, such as knives, bricks, rocks, brass knuckles, broken glass, etc.
Though firearms are used in the majority of homicides nationwide, knives and blunt objects were the murder weapon in 13% of homicides in 2019 (FBI Table 11 2019). On the other hand, in aggravated assaults, blunt objects and knives were used in 30% and 18% of cases vs. firearms in 28% of cases (FBI Aggravated Assaults 2019). In Colorado, knives and blunt objects were used in 45% of aggravated assault cases (FBI Table 22 2019). According to Boulder Police Department officers, knives, cutting weapons, and blunt objects are far more common than firearms in felony offenses. Boulder normally sees around one homicide a year, but in 2020 two high-profile homicides were both committed without firearms: one offender used a pipe (10.27.2020 Daily Camera) and the other offender used personal weapons (7.24.2020 Daily Camera).
Guns are not the only dangerous weapon.
Crime during COVID
The proposed reforms of SB21-062 have already been informally tested with the restrictions on jailing due to COVID. In cities like Boulder, this test has failed, with some of the crimes included under SB21-062 increasing over 100 percent. The data purported to support SB21-062 is flawed and covered at a high level here. Supporters of the bill, including sponsor Senator Pete Lee, present a contradiction:
First, they tout a flawed ACLU analysis suggesting a correlation between jail population decreases and a decrease in overall crime during the first couple of months of the pandemic as supporting the bill;
But when faced with the drastic rise in the specific crimes included under SB21-062 in urban areas, they respond, “there is no basis to associate those increases with jail population reduction (Sen Pete Lee).”
There were simply too many confounding factors in 2020 to draw the kind of conclusions from the small, short-term data sets that the SB21-062 supporters state.
The broad, sweeping changes under SB21-062 are not data-driven. By passing SB21-062, lawmakers would be gambling with the safety of their citizens.
No Alternative to Jail
Jail should not be a stand-in, compensating for inadequate long-term mental health treatment and drug treatment alternatives. Despite recent bills around behavioral health and addiction in Colorado, there continues to be an inadequate pipeline for connecting offenders with programs to treat the underlying issues and stem recidivism. There is not a state mandated process for bypassing jails and getting offenders into appropriate behavioral health programs. However, local governments, such as Boulder, do have pipelines to make use of the alternatives, but the pipeline often includes the jail and greater criminal justice system. By limiting the points of contact of an offender with the criminal justice system, SB21-062 may also be limiting the opportunities for cities to successfully connect offenders with services more appropriate than jail.
SB21-062 does nothing to actually help offenders better their lives, and instead returns them to the same circumstances that lead to their crimes.
Disproportionate Impact of People of Color
SB21-062 is a social justice bill, similar to many recent Defund the Police and police reform bills across the country. However, these bills often support the rights of offenders with minimal consideration of victim’s rights. These bills have shown unintended consequences that could be argued to result in reduced social justice. In the U.S., Black people are more likely to be victimized than white people (BJS 2019). Marginalized people will suffer more if crime increases as a result of SB21-062. In Minneapolis, the city has pulled back on police reforms and sought to increase funding due to spikes in violent crime in poorer neighborhoods (2.6.2021 Star Tribune). During the Boulder City Council's initial discussion of the bill, a council person of color expressed significant concerns about the bill, including the unintended consequences of racial inequity. SB21-062 is too generic and too rushed to reflect meaningful considerations of the unintended social justice consequences.
These concerns are significant, significant enough for several major groups including the Colorado Municipal League (CML), Metro Mayors, and County Sheriffs of Colorado (CSOC) to recently change their positions to opposing SB21-062. Even in a progressive city like Boulder, there has been a massive movement against SB21-062. The supportive voices at Boulder city meetings are actually dispersed across the state, coming from areas outside Boulder, and their numbers are enabled by the virtual platform. Boulder City Council understands the will of the majority and has taken a stance of supporting with amendments.
Only through thoughtful, significant amendments to SB21-062, especially the exemption of all felonies, can we create a more equitable criminal justice system, while still prioritizing public safety.
100+ Boulder residents
*Since sending this letter, the authors of SB21-062 have reinforced language to ensure that officers will not be be held liable for arrests under the "public safety threat" clause. A subsequent Guest Opinion submitted to the Daily Camera replaces the original liability language with another concern around the "public safety threat" clause:
Supporters point to the current vague “public safety threat” determination as covering some lower felonies. However, this exemption is not designed to protect communities, as the language doesn’t consider any threat to community, but rather “to another.”