The contenders to be the next top prosecutor in the state’s most populous judicial district participated in a wide-ranging debate Wednesday evening and staked out battle lines over diversion programs, misdemeanor drug possession cases and consequences for immigrants convicted of crimes.
Democrat Amy Padden, a former assistant attorney general and former assistant U.S. attorney, and Republican John Kellner, a veteran of incumbent George Brauchler’s team and an ex-JAG prosecutor in the U.S. Marine Corps, participated in a forum organized by the political action arm of the Colorado Criminal Justice Reform Coalition.
The two candidates presented different perspectives on how the office might approach crime under their respective leadership.
Kellner emphasized his commitment to crime victims, stressing a focus on the disproportionate rate of minority arrests.
Padden, however, urged viewers to consider how unfairness in the criminal justice system harms victims.
“Justice is not about getting a win,” she argued. “It’s about doing the right thing in all of these cases.”
Padden has highlighted the importance of diversion programs during her campaign and, during the forum, hammered the point that those programs save money and assure more equitable treatment for defendants.
“One of my top priorities will be to expand the adult diversion program,” she said. “Diversion programs have a much lower recidivism rate. It’s usually about 10 to 15%. Sending someone to the Department of Corrections has a terrible recidivism rate. It can be as high as 50%, depending on what you’re looking at. That is not making people safer. So we need to prioritize other ways to address criminal behavior by non-violent offenders.”
A May 2018 report by the U.S. Department of Justice showed 83% of convicts released from prison were arrested again within nine years and that during the first year after release, nearly half were arrested again.
Kellner urged caution. He contended that the only way more offenders can be routed to diversion programs is by allowing those who have committed violent crimes to participate.
“We don’t allow violent offenders into adult diversion, we don’t allow sex offenders into adult diversion, or domestic violence abusers,” he said. “I would ask my opponent, which of those categories of people do you think we need to expand this program to? Because that’s the reality.”
Kellner said that about 130 adults participate in a diversion program that can accommodate 150 people.
Data shows the per capita participation rate in diversion programs across Colorado’s 22 judicial districts is scarce. Padden claimed that in the 5th District, where she currently works as an assistant DA, there are 50 participants.
The 5th District includes Clear Creek, Eagle, Lake and Summit counties, which the state’s Department of Local Affairs says have a combined estimated population of just over 103,000 as of July 2018.
The four counties of the 18th District, on the other hand, have a 2018 estimated population of 1,040,728 people.
Questions about racial inequity generated more agreement between Kellner and Padden. Both asserted the state’s criminal justice system needs to accept that a problem exists, but the candidates parted ways on how to address it.
While Kellner urged continued attention to unconscious bias training for prosecutors and Padden concurred that such education is valuable, she pushed for more careful examination of data to discern where racial disparities in prosecutions occur.
“We need to look at our filing decisions, about whether we’re asking for cash bail, about whether we’re offering pleas, what sentences we’re asking for, about diversion,” Padden said.
Kellner disputed that perspective, emphasizing that district attorneys can only react to crimes.
“By the time the DA’s office comes into play, though, it’s after a crime has been committed,” he said. “It’s well beyond a lot of the earlier intervention points, and we have an obligation as district attorneys to try and seek justice in that case and to have a fair process for the defendant. You have to address the harm that was caused in that particular case.”
Debate moderator Leanne Wheeler, an Aurora activist and former city council candidate, pushed Padden and Kellner to discuss whether changes to the state’s habitual offender statute are needed.
Kellner was non-committal while Padden said she supports the idea.
“We’ve learned that the philosophy of locking people and throwing away the key just doesn’t work,” she explained. “These habitual offender statutes are very harsh and, in my view, unnecessary.”
Under a statute enacted in 2002, individuals who are convicted of three violent crimes and certain drug offenses within 10 years must serve at least 40 years in prison.
Wheeler also raised the question whether the next DA for Arapahoe, Douglas, Elbert and Lincoln counties would commit to a policy of considering immigration status before making filing decisions.
While Kellner explained that he thinks a written policy addressing offender immigrant status would conflict with the imperative of considering each case on its merits, Padden did not hesitate to make the promise.
“Treating everyone equitably does not mean treating everyone the same,” she said.
The candidates expressed a common view on whether they would prosecute police officers who violate the law.
“We’re showing that everybody is accountable under the law,” Kellner said. He mentioned several cases in which Brauchler’s office has charged elected sheriffs.
Padden pointed out that a willingness to hold police officers accountable is an essential tool for maintaining public trust.
“There’s obviously a concern in the community that police officers haven’t been held accountable when there’s been misconduct,” she said.
Padden and Kellner were also unanimous in their commitment both to public safety and to concern for victims.
“The top priority has to be community safety in all circumstances,” Padden said.
— Hank Lacey