Spike in felony crimes

Problem: A 50% rise in criminal filings over five years may be partly attributable to a recent surge in drug arrests.
Dilemma: As lawmakers push for further sentencing reforms, DAs fear that leniency puts the public at risk.

By Christopher N. Osher
The Denver Post

Zebulon Montgomery is accused of shooting and killing his grandfather in the parking lot at Cañon City’s McDonald’s.

Felony criminal filings across Colorado increased by nearly 50 percent in the past five years, prompting concerns that recent criminal justice reforms are letting dangerous individuals roam the streets.

Prosecutors and state officials still are trying to identify the causes for the swifter pace of felony filings. State statistics indicate that a recent surge in drug arrests may be partly responsible.

The Colorado District Attorneys’ Council has alerted officials in Gov. John Hickenlooper’s office to the increase and sought their help in analyzing crime trends. The council also has reached out to district attorneys throughout the state for more information on felony filings as it prepares to fight plans to push for further sentencing reforms in the upcoming legislative session.

Lawmakers ranging from Republican Sen. Kevin Lundberg of Berthoud, a member of the influential Joint Budget Committee that writes the state budget, to Democratic Sen. Daniel Kagan of Arapahoe County, a member of the Senate Judiciary Committee, want to overhaul Colorado’s sex offender and habitual offender statutes to give judges more flexibility when sentencing offenders.

Prosecutors are pointing to the rise in felony filings as cause for caution. Several said they fear the legislature sent the wrong signal in 2013 when it created more leniency in drug sentencing. Under that change in law, defendants convicted of lower-level felony drug possession can have their convictions changed to misdemeanors after completing their probation. The new law restricted the ability of judges to sentence offenders convicted of certain drug crimes to prison, requiring them to first exhaust all other options.

District attorneys also blame the rising felony filings on state initiatives to keep more offenders out on parole and probation and under pretrial supervision instead of behind bars. Others say the 2012 ballot initiative voters passed to make recreational marijuana legal has enticed career criminal transients to move from other states to Colorado.

“There has been a lot of criminal justice reform in the last 10 years in Colorado,” said Mesa County District Attorney Dan Rubinstein, who said his office is overloaded with a surge in crime. “Sometimes those pushes go too far and the pendulum needs to swing a little bit back in the other direction. There was needed criminal justice reform, but not everything has to always be about diverting people away from prison.”

Downward trend until 2011

Before the reform measures, felony filings were on the decline throughout the state. From 2007 through 2011, felony filings statewide gradually declined each year, decreasing from 44,245 to 35,966, a nearly 19 percent drop.

Now, the trend is in the opposite direction. Statewide, felony filings increased from 35,551 in the fiscal year that ended in June 2012 to 51,775 this fiscal year, a 46 percent increase. The state’s population has risen by 8 percent during those years.

“I want to make sure this reality is included in the conversation, that the narrative isn’t just about over-incarceration, and that we remember the criminal justice system has a mandate to ensure public safety,” said Boulder District Attorney Stan Garnett, who in August became president of the Colorado District Attorneys’ Council.

Garnett has discussed the increase in felonies with Hickenlooper’s chief of staff Doug Friednash and chief legal counsel Jacki Melmed.

“We’re certainly concerned and want to understand it better,” Melmed said. “Until we have a better sense of what’s going on, I don’t think anyone right now can point to anything. No one really knows what’s behind this. It would be foolish to jump to any conclusions too quickly.”

So far, the increase in felony filings hasn’t exploded the state’s monthly prison population, which declined by about 3,000 inmates from October 2008 to October 2013. But the surge in filings still has concerned lawmakers and corrections officials because the pace appears to have stalled efforts to reduce the monthly prison population in Colorado, which for the past four years has hovered around 20,000 inmates. Corrections officials had to spend $10.6 million this year to temporarily lease a private prison to relieve crowded conditions in the state prison system.

Officials want more clarity on how many of the felony filings are for violent offenses, how many are for repeat offenders, what role drug crimes are playing, and how many of the offenders were under pretrial, probation or parole supervision.

Data show sharp increases in felony filings in the past five years in every judicial district except the one that covers Huerfano and Las Animas counties, and even there felony filings in the past two years increased by about 10 percent.

“This affects everyone in the criminal justice system,” said Garnett, who has seen filings in Boulder jump by nearly a third since 2012. “It’s putting a real strain on resources. It is impacting district attorneys and the public defenders and the clerks of courts.”

Drug arrests on rise

Arrests for drug crimes rose steeply from 2013 through 2016, increasing more rapidly than other arrests, according to Colorado Department of Public Safety statistics. Drug arrests had been on the decline before 2013, but since then they have been on the upswing, rising from fewer than 15,000 in 2013 to more than 20,000 arrests in 2016.

In some areas of the state, the increase in felony filings is dramatic. The 11th Judicial District, which covers the counties of Park, Chafee, Fremont and Custer, has seen filings almost double since 2012. DA Molly Chilson said her area of the state has been hit hard by the scourge of heroin. Drug addicts are fueling other crimes, contributing to a rise in robberies, thefts, burglaries and assaults, she added.

“We should be responsible and honest when we have a discussion on what is driving crime rates in Colorado,” Chilson said. “It includes some of the leniency we have seen in our system recently.”

Her office is prosecuting Zebulon Montgomery, 25, who is accused of shooting and killing his grandfather in the parking lot at Cañon City’s McDonald’s. A prosecutor said in a court hearing that Montgomery had past problems with meth and heroin abuse.

Denver has seen felony filings increase by nearly 71 percent in the past five years. Denver District Attorney Beth McCann, who took office in January, said drug crimes are driving much of that rise, but she does not want to abandon programs that divert drug users out of the court system and into rehabilitation programs.

“Drug offenders repeat, and we are looking really hard at how do we deal with drug offenses in a more intelligent way,” McCann said. “We are analyzing and assessing our drug possession cases. We want to get drug offenders into treatment or into alternatives to conviction earlier.”

She and other prosecutors said the enactment in 2015 of a new law that made a fourth and all subsequent DUI offenses felonies is contributing to the spike. Last year, the state also made strangulation a felony offense, which also has created a jump in filings, she added.

Felony strangulations and felony DUIs are responsible for about 80 more felony filings annually in Mesa County, but that increase doesn’t come close to accounting for an increase of more than 500 felony filings in that jurisdiction from 2015 to 2016, said Mesa County District Attorney Dan Rubinstein.

Other causes identified

As the state tightened those laws, it relaxed laws for thefts, Rubenstein said. The state used to impose felonies for thefts that equaled more than $750. Now the threshold for a felony theft charge is for losses of more than $2,000, with amounts less than that charged as misdemeanors.

In Mesa County, felony filings from the fiscal years 2012 through 2017 increased by 56 percent. That dramatic rise is having a budgetary impact, Rubinstein noted. Voters this month supported a 0.37 percent increase in the county sales tax that will raise an estimated $7 million a year for the sheriff and DA’s offices. Part of the money will help pay for new hires and equipment. It’s the first local sales tax initiative that voters there have passed since the 1980s.

Rubinstein suspects that a statewide push to release more defendants from jail while they wait for their trials, and efforts to keep low-level offenders out on probation and parole, has contributed to the surge in felonies. In 2015, 27 percent of defendants charged with felonies in Mesa County had been under pretrial, parole or probation supervision when they were arrested. That jumped to 43 percent in 2016 and 37 percent in 2017, according to statistics Rubinstein tallied.

“We all believe we should manage people in the least restrictive environment possible as long as we can keep people safe,” Rubinstein said. “That is what we would prefer to do. But public safety is the number one thing. I know there is budgetary pressure on the Department of Corrections. But, to me, public safety has to rule the day.”

The 8th Judicial District, which covers Larimer County, has seen felony filings increase by 65 percent from fiscal year 2012 through 2017. Five years ago, it was rare to see transients who had committed crimes in multiple states charged in Fort Collins, but not anymore, said Chief Deputy District Attorney Daniel McDonald.

“Yesterday, I filed eight felony cases, and not one of them was originally from Colorado,” McDonald said. “They were all transient. Now I see multi-state offenders, and I mean multi-state. This one guy had felony filings out of Florida, Maryland, Wisconsin and New York. That’s common now.”

McDonald said that when pressed on why they popped up in Colorado, those transient offenders often cite the recent legalization of recreational marijuana and the move to allow those convicted of lower-level drug possession felonies to have their convictions reduced to misdemeanors. The transients are changing the nature of the Old Town square of Fort Collins, the college town’s destination spot for dining, shopping and strolling, he added.

“The Old Town area is very different than it used to be 10 years ago,” McDonald said. “It’s very noticeable.”