AURORA | In the early weeks of the COVID-19 pandemic, Aurora’s Chief Public Defender Doug Wilson scrambled to get dozens of municipal offenders out of local county jails in an effort to slow the spread of the virus that had slowly begun worming its way into state and local detention centers.
The upshot was some three dozen bond reduction motions and four dozen motions to reconsider sentences filed in Aurora Municipal Court in the third week of March. The city attorney’s office agreed to the majority of the bond reductions and all but 10 of the sentence reduction motions.
But those remaining 10 defendants, almost all of whom were incarcerated in the Adams and Arapahoe County jails on charges related to domestic violence, spurred Wilson to pursue an action that has nary been levied in Aurora’s municipal court.
On March 26, Wilson, a longtime state public defender who represented dozens of defendants facing the death penalty, asked Mayor Mike Coffman to commute or modify eight of those sentences.
“It would be my position that it’s just a fundamental, constitutional last resort review,” Wilson said of commutation powers. “Trump does it at the national level, the governor just did it at the state level with the guys on death row, and so who does it when you get to the municipal level? … Somebody should have that power.”
Wilson sent an email to Coffman and the entirety of city council that was quickly forwarded to City Attorney Dan Brotzman, according to information provided to the Sentinel. Brotzman promptly quashed the request, asserting that the city charter does not grant an Aurora mayor commutation powers. Only charters that explicitly grant such power would afford a mayor the ability to commute a sentence, Brotzman wrote in an email to council, citing a bevy of case law.
“In Colorado and across the country, it is clear that a commutation or pardon of a municipal ordinance violation cannot be performed under the executive power of the governor, nor of any city official, unless that power is granted to that official. Under the Colorado Constitution, Article IV, Section 7 , the governor is provided that specific power, but that power is limited by legislative enactment … and only for state crimes, not convictions for ordinance violations,” Brotzman wrote.
“If it was in the charter, which is like the city constitution, we would have the ability to go in and make the requests,” he said. “When the charter’s silent, does that mean it’s not there from some organic constitutional principle? I would argue not.”
Wilson later forwarded his request to counsel for Gov. Jared Polis — not the state clemency board — in April. He’s yet to receive a formal response.
A spokesman for Polis confirmed the governor does not have the power to pardon or commute municipal sentences.
Since issuing his original request to Coffman, the mayor has questioned Wilson’s efficacy in his role.
“I didn’t realize what a hornet’s nest I was poking,” Wilson said.
In an email sent Thursday, Coffman blasted Wilson for ever asking him to commute municipal sentences.
“I was deeply disappointed that the chief public defender lacked an understanding of the law to the point that he made a request of me to do something that I did not have the legal authority to do,” Coffman wrote. “It gave me concerns about his professional judgment as a lawyer that he would waste both his time and mine without having done the appropriate legal research first.”
Wilson’s request cited a law review article penned by a University of Michigan law student who explored the potential of municipal clemency powers. The article, published earlier this year, examines the broadening scope of mayoral pardon power, citing the expansion of such abilities in Omaha, Nebraska in 2018.
“Many cities have simply failed to create a local clemency power,” Hayato Watanabe wrote in the Michigan Law Review. “This note argues that the authority to grant pardons for municipal offenses is part of the toolbox of powers provided to cities through the doctrine of home rule. Accordingly, cities do not have to wait for the permission of their parent states to create a local clemency power.”
City attorneys said the issue of municipal pardoning and commutation was examined about two years ago during the criminal case of Elisabeth Epps, who was eventually sentenced to work release in early 2019 after being convicted of interfering with police in 2015.
There are currently no plans to further discuss expanding an Aurora mayor’s power to commute municipal sentences, according to city staff. Councilwoman Nicole Johnston had previously asked to discuss the topic, but retracted her request after hearing from city attorneys.
Coffman said he would consider using pardon power if it were granted to him, but admitted it’s not front of mind.
“If I could wave the ‘proverbial’ magic wand I would like to have that power,” he wrote. “But it is not a priority of mine when it comes to issues that I think are important enough to bring to the voters and to campaign for.”