We’re not saying, ‘OK murderer, here’s your probation,’ but I think we are listening more to one another and looking for ways to find alternatives to jail and prison, and for the most part, I think that’s a good thing …

Earlier this spring, Arapahoe County Sheriff Tyler Brown issued a memo outlining how his detention center was going to batten down its hatches in an effort to thwart the spread of COVID-19. The new policies stated that jailers were only going to accept the system’s most violent offenders accused of the most serious crimes. Those wanted for lower-level offenses would be turned away.

“With the court being shut down there was really no point to bringing them in and having them in custody,” Brown said of non-violent offenders. “If we could just identify them and advise them, we all can move forward with our days.”

That shift in philosophy saw the population of the county jail — which serves nearly 90% of Aurora — shrink by more than half in recent months. There were fewer than 600 inmates in the jail at times this spring and summer, though the population has slowly swelled back to about 650 people in recent days, according to county statistics. Last year, the jail housed an average of 1,100 people per day. About 70% of the inmates currently in custody at the facility are pre-trial detainees, meaning they’ve been accused of crimes but are still awaiting adjudication.

The efforts have largely worked as a means of curbing the spread of COVID-19 among those incarcerated in Arapahoe County. There have been no outbreaks of the disease in the local jail, according to a spokesperson for a sheriff’s office and state health department records. A total of nine detention employees have contracted the virus since March, though all have been cleared to return to work. Two inmates were booked into the jail with the virus, though they were isolated and released less than 12 hours later. The contagion did not spread among the greater jail population.

But more than keeping the pandemic relegated to the world outside of the Centennial facility’s barbed wire fences, the new policies in Aurora’s primary county have accelerated and in some cases instituted reforms certain advocates and policy wonks have been calling for since the 1980s.

A cell sits empty at the Arapahoe County Jail. Inmate populations in jails has decreased during the pandemic. Photo provided by Arapahoe County Sheriff’s Office

“Colorado has always been facing this justice crisis, but what we have seen with the pandemic is the criminal legal system being able to do what it has proclaimed it could not do for the last four decades,” said Juston Cooper, deputy director of the Colorado Criminal Justice Reform Coalition.

Cooper and others have said that the pandemic has inadvertently proved that a system with fewer men and women wearing colored scrubs behind stone walls does not lead to societal bedlam. “All of the arguments against us all these years about why we can’t do this — they’re not happening,” said Denise Maes, public policy director with the ACLU of Colorado. “The sky is not falling, and crime is not rising as a result of jail depopulation.”

Now, Cooper, Maes and others are asking lever-pullers like Brown to keep the newly implemented policies in place in an effort to shift the tide of a justice system that has been forced to reinvent itself more in the past six months than it has in decades.

PERFECT STORM FOR REFORM

Changes to the systems of cops, courts and captors have been significant in recent months, and they’ve extended beyond the offices of county sheriffs.

Arrests in Aurora plummeted in April after the city’s police department began issuing court summonses in lieu of taking people into custody whenever possible. Aurora officers physically arrested an average of 286 people per month between April and August, according to departmental data. In the five months prior to that span, local cops were putting handcuffs on an average of 715 people every 30 days.

But fewer arrests have not translated to a reduction in court cases in Arapahoe County’s 18th Judicial District, where most trials are still disallowed, causing cases to stack up down the line and create dockets that are full to bursting. 

“We still have way, way too many cases set for trial,” said Matt Maillaro, assistant district attorney in the 18th Judicial District.

The district’s chief judge has still barred the court from holding trials expected to last longer than one week, and jury pools have been capped at 50 people. That bars prosecutors from trying many of the area’s most serious cases as filings continue to pile up.

Dovetailed with the overarching goal of keeping more people out of jail and prison, that increased caseload has, in part, led prosecutors to sometimes be more lenient on plea agreements, bond amounts and some supervision provisions, Maillaro said.

“Ultimately, yes, I think this has led us to resolving cases — a lot of cases — a little bit differently than we would have pre-COVID,” he said. “We’re not saying, ‘OK murderer, here’s your probation,’ but I think we are listening more to one another and looking for ways to find alternatives to jail and prison, and for the most part, I think that’s a good thing … In some ways, it’s a necessity because we need to resolve more cases. We don’t need to argue over 15 or 30 days in jail. We could argue in the past and go to trial, but today we don’t have that option.”

Yet that hasn’t strained Arapahoe County’s pretrial supervision programs as much as many in the local court system feared it would at the onset of the pandemic.

“In terms of pretrial supervision, we haven’t really seen a whole lot of change,” said Brad Kamby, judicial services manager for the county. “It’s running pretty much as normal as it was pre-pandemic.” Kamby said his office saw a dip risk assessment interviews with defendants to determine their bond amounts earlier this spring, though he linked that to an overall drop in arrests. There was also a momentary pause in community service opportunities, though those have since rebounded, and GPS monitoring cases have stayed relatively flat this year, he said.

Overall, Maillaro said there have been relatively few offenders who have abused the more lax consequences, though he admitted that there are those who feel emboldened by the new normal.

He recalled one defendant who recently left a courtroom jubilantly cheering after he was told that he would not be jailed for repeatedly failing to appear and violating the terms of a previous release agreement.

“I think there are certain people taking advantage of this looseness in the judicial system, and I would say there is, to some extent, a connection between some of what we’ve had to do to keep COVID from spreading and the increase in certain property crimes,” Maillaro said.

Crime has been up across the board in Aurora this year, with a 17% increase in violent crime and a 12% bump in property crime in the first six months of 2020 over the same time frame in 2019, according to police department data.

The city tallied more homicides in the first eight months of the year than the annual total in each of the past five years. But drawing a straight line between a more lenient criminal system and a surge in crime rates is a red herring, reform advocates say.

“That’s just rhetoric — it’s law and order, it’s tough on crime, and it’s a scare tactic,” Cooper with the state reform coalition said. “We’re seeing a spike in certain violent crimes in pockets, which is absolutely alarming, but it’s being painted with a broad brush because of the inadvertent reform that’s come through COVID, and it’s just not true.”

Paul Taylor, a former police officer and current assistant professor of criminology at the University of Colorado Denver School of Public Affairs, said the increase in crime is far muddier than any single change implemented in the legal system in the past six months. The lack of jobs, mental health resources and general angst the pandemic has created has fed more into the increased violence than any action instilled by the system intended to curb it, he said.

“I think what we’re seeing with the pandemic is a perfect storm,” Taylor said. “It would take a bit to suss out the direct causal effect of what’s happening right now with the pandemic, but people have lost their jobs, they’re unable to find jobs, there are people out of school or attending school with a very loose connection on the internet, we’ve got social services reduced or closed down, we’ve got an increase in the homeless population, an increase in mental health issues, increased scrutiny and criticism of police, and I think all of these things tie in together.”

VIRTUAL ADJUSTMENTS

Like umpteen Americans, screen time has skyrocketed for attorneys, judges and defendants since the pandemic halted society’s machinations in March.

And for every offender who has gone on to commit more crime or fail to appear in court upon being liberated instead of incarcerated in recent months, Maillaro contends there has been another who has shown up solely because of the court’s new digital format.

“We’re staying steady on failure to appear cases and I think that’s because it’s a lot easier for people to appear,” he said. “You can be out there on a bender and you can still appear. There are defendants who I’m sure would fail a drug test, but at least they’re showing up.”

The advent of WebEx in state courts this year has been lauded by both prosecutors and defense attorneys, who credit the platform with getting people before judges without causing them to travel long distances, find childcare or miss work. “Many times court appearances are routine and not significant and to require a client to take off work, to take a bus, to spend an entire day and sit and wait and be called for five or 10 minutes, it’s not always the best use of anybody’s time,” said Maureen Cain, director of legislative policy and external communications with The Office of the Colorado State Public Defender.

Still, Maillaro said the increased ease of appearing before a judge has been a tradeoff for the in-person dynamics between attorneys, judges, victims and suspects that permeate traditional courtrooms. “There has been some level of interference with the prosecutor and victim relationship,” he said.

A sheriff’s deputy and an inmate wear masks during their interaction at the Arapahoe County Jail.
Photo provided by Arapahoe County Sheriff’s Office

Maillaro said the catharsis that some victims or their families can experience from confronting an assailant or significant person in a case can sometimes be lost over the ether.

Cain added that people who have been in the legal system for decades have been hesitant to forgo such in-person interactions.

“We’re getting pushback, especially with all due respect with the older judges,” she said. “The whole decorum of the courtroom — with the judge sitting up there and everybody rising — that all somewhat disappears in this virtual world.”

The state public defender’s office has also expressed concerns over the quality of the shrunken jury pools for the select trials that have taken place, Cain said.

“People can opt out more easily, so are we getting the right cross section of the community?,” she said.

“If you only take people who say they don’t believe in COVID, what does that jury pool look like? That has been a bigger challenge for us and I would also say nationally as well. We struggle with that.”

But both Cain and Maillaro said they’re optimistic courts will maintain WebEx as an option for many quotidian proceedings moving forward, though the use of such platforms for proceedings like murder trials is still a ways off. Concerns that witnesses could somehow be influenced or otherwise fed testimony off-camera persist, Maillaro said. But for less consequential proceedings like certain status hearings, the technology could be a lasting revelation.

“I think most courts will keep that on the table,” Maillaro said of the technology.

AN EASY CELL FOR CHANGE

This era of masks and pervasive paranoia has been an illustrative one for Brown, one of the youngest sheriffs in the state who ousted a popular incumbent in the 2018 election.

He’s slowly stripped the protocols he instituted in March to keep the jail population down, including accepting more probable cause felony arrests earlier this summer and warrants tied to bonds valued higher than $10,000 last month. 

Similar efforts have slowly taken place in Adams County, where the jail population is now about 80% of what it was before the pandemic. Douglas County’s jail numbers have crept up slightly, too.

But Brown said the pandemic has given him a chance to mull further changes to how suspects are contacted and processed in the Aurora region. He said he’s considered backing a proposal to shake up the state’s warrant system in an effort to reduce the number of people thrown in the back of patrol cars, effectively continuing COVID-era practices.

“What I’m hoping is we start a paper trail,” Brown said. “If you have an outstanding warrant for being a fugitive of justice and it falls below a certain threshold and isn’t related to a crime in the victims right act, why can’t we just issue them a new summons with a new court date saying you need to address this? It gives people the opportunity to take care of their business within the judicial system without putting the onus on counties.”

He said he’s already spoken to several sitting legislators about introducing such a proposal.

“It’s obviously not always a popular stance but some of these individuals don’t benefit from being in custody,” Brown said. “There are a lot of ways law enforcement became used to doing things, but I think a global pandemic forces us to look at what we do operationally.”

Still, he’s adamant that the county needs a new jail, a notion voters shot down in last November’s general election. But if legislative change is able to emerge from the state’s golden dome next spring, he said it could be possible to build a smaller facility than what was originally blueprinted in 2019.

“If we don’t get true judicial reform, we’re still going to run into the fact that there are court orders out there and the population will steadily increase like it usually does,” he said. “And we don’t have the infrastructure to provide resources individuals need.”

There are currently about 30,000 active warrants in Arapahoe County, according to Brown. The county’s current jail was built in 1986 and has been retrofitted to now technically house as many as 1,458 inmates.

Cooper said he’s been encouraged by the expedited conversations the pandemic has spawned, though he’s lamented changes that have already come and gone, such as Gov. Jared Polis’ executive order intended to shrink the state’s prison population. Signed in March, the order expired earlier this spring.

“It was just very disappointing to see leadership make the decision to not extend,” Cooper said.

In an effort to further catapult the renewed policy discussions the pandemic has highlighted, Cooper’s group recently launched a lobbying arm intended to elevate local races for district attorney. Next month, Aurora voters will decide on new district attorneys in both Adams and Arapahoe Counties.

“Reimagining policing and prosecution and incarceration is key,” he said. “The impact of COVID has illustrated that and I think this racial reckoning is calling for a reconsideration of all of this.” 

Taylor with CU Denver echoed, saying it will take further seismic shifts to the state’s legal institutions to achieve any modicum of change.

“Right now we’re just kind of moving things around,” he said. “I don’t see somebody or a group of people putting forward systemic changes that can really be sustainable over a period of time.”

Still, Maes called on local leaders to maintain any slight shake ups made in recent months — not reverse them.

“It just goes to show you that it can be done,” she said. “Let’s not go back.”