A recurring problem facing Aurora, and many communities like it, is a wide misunderstanding of why observing the “rule of law” is critical for everyone. It serves people who uphold the law and want to see the laws followed, and it serves those accused of breaking the law.
In short, it’s the very foundation of the most important principle behind the United States: we are all equal.
Because we are equal, everyone — in theory, and with increasing practice over the last two centuries — must be treated the same way under the law. It means, in theory, that a Catholic priest caught running an illegal casino in the church basement is subject to the same laws and penalties as a Jewish rabbi running an illegal casino in the temple basement.
The 14th Amendment of the U.S. Constitution spells out all of that clearly.
“…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
All this has suddenly become a problem for the people who govern places like Aurora and Pueblo, as well as for people who live or visit there.
For the past few years, Aurora lawmakers have reached back into 1980s Colorado when a group of misguided conservatives rallied to “get tough on crime” as a way to prevent it.
The idea appeals to people who mostly follow the law. If you send people to prison for a long time for stealing a car or a television, fewer people will steal cars and bags of groceries because they don’t want to go to prison.
It fails to appeal, however, to people who steal cars and televisions. Colorado, led by “lock them up” leaders like Jefferson County District Attorney Don Mielke in the 1980s, helped persuade lawmakers and the governor to send thousands of thieves to prison. It cost hundreds of millions of dollars. It did not prevent crime.
Numerous vetted, and re-vetted, studies have shown over and again that potential criminals are not impressed nor affected by “get tough on crime” policies.
It doesn’t matter how hard proponents of such a thing wish it weren’t true, or how many times they try it, whether the crime is jaywalking or murder, tougher punishment does not mean fewer jaywalkers or murderers.
The numbers don’t lie.
That hasn’t stopped places like Aurora, Pueblo and other cities across the state from turning up the local control and focusing on crime and punishment. Persuaded of their ability to go where no community or state has gone before, for the last few years Aurora has created harsh minimum sentences and mandatory jail time for crimes like shoplifting — and even walking out on a $15 restaurant tab, which will net the scofflaw a mandatory three-day or better stay in the hoosegow.
Brag all they want, the data is unequivocal that it has done nothing to reduce crime any more than crime has fallen in every community surrounding Aurora.
But what Aurora has done, as well as Pueblo and burgs like Rifle, is set off the 14th Amendment alarm. If you get caught shoplifting $100 worth of shoes in a southeast Aurora store, you must go to jail for at least three days. If you steal the same shoes across Arapahoe Road in a store there, you might not, and in fact you probably would not, go to jail.
State lawmakers who care about how important, and unequivocal, all that “created equal” and “equal treatment” clause thing is have created and passed House Bill 25-1147, which expressly forbids cities like Aurora and Pueblo from creating places in the state that treat people differently for committing the same crime.
Like it or not, it makes sense. The rule of law and the 14th Amendment force everyone and every jurisdiction within a state to treat everyone the same. It’s the very foundation of Brown v. Board of Education.
It doesn’t mean that Aurora and Pueblo can’t create their own laws and rules to govern their communities. Colorado is rife with allowing for local control, as it should.
Local control, guaranteed by the state Constitution, ensures that home-rule cities, like Aurora, are able to legislate a wide range of things that people care passionately about. Aurora can write and enforce laws that prohibit people from openly carrying firearms in the city, yet they don’t. Aurora can write and enforce laws that prohibit people from owning and harboring pit bull dogs, and they did, until last year. Colorado Springs has for years prohibited the retail sale of marijuana inside city limits, while Aurora has embraced it.
But if you are caught illegally selling marijuana in Aurora or Colorado Springs, the punishment must be, and is, the same.
The Sentinel staunchly supports the rights of communities like Aurora to address the needs of residents by empowering locally elected leaders to set a course for constituents that works best for them. But Aurora can no longer run afoul of the U.S. Constitution and state any more than a local homeowner association can impose rules or restrictions that run afoul of city rules and regulations.
Aurora officials have repeatedly defended their “get tough” jail sentencing philosophy with the fact that residents here have elected city council members to carry out that philosophy, and that if it was unappealing, they could just elect someone else.
Likewise, if Aurora and Pueblo are convinced that three days in jail prevents restaurant theft, they can work to elect state lawmakers who agree and change the sentencing for everywhere in Colorado.
As soon as this week, Colorado Gov. Jared Polis will get House Bill 25-1147 on his desk for either his signature, his veto or to allow it to become law without his approval.
We know he is as strong a proponent of local control as is the Sentinel, especially when it comes to issues of public safety. But we would hope that Polis’ deep appreciation for the rule of law and the Equal Protection Clause will guide him to sign the measure, rather than wait for the inevitable decision to be made by the courts.
Oh Dave, this is NOT how the equal protection clause works. Quit believing the socialist legislators who keep saying the “equal protection clause” limits the idea of different punishments for the same crime in different parts of the state or country to pass stupid legislation like this one. There is plenty of case law that says the equal protection clause is not in play here.
How about people don’t steal? is that too hard to ask? If you decide to steal or commit other crimes, you choose where to commit the crime. So, don’t commit the crime where you don’t like the possible punishment.
Bottom line is if the Colorado legislature wants to change the power of home rule cities, they need to start with amending the State constitution. They know this. And they don’t want to do it, as they worry the citizens of our state won’t agree with them. So they avoid it by trying to pass legislation that won’t hold up in court. Legislation like this will never hold up until the Colorado Constitution is changed.