On a cold February day, employees at Diva’s Boutique in downtown Rifle called police to report a married couple had stolen two $15 mid-cut black shirts from the clothing store.
When police arrived, an officer marked a black X next to “Rifle Municipal Court” on a criminal summons, ordering the couple to appear in city court in April 2023 to face charges of theft under $100.
The officer, though, had a choice. She could have sent the couple directly across the street to Garfield County Court on the same charges.
The decision to prosecute the crime in municipal court rather than pursue state charges carried enormous consequences.
Under state law, the pair faced a maximum of 10 days in jail if convicted in Garfield County Court. But they faced the possibility of 180 days in jail if convicted in Rifle’s municipal court — a jail sentence 18 times longer.
Colorado’s city courts — designed as the lowest-level courts for the lowest-level crimes — have in recent years become far more punitive forums than Colorado’s state courts, with residents facing exponentially more jail time in many municipal courts than they would for the same offenses if they were charged in state court.
“There’s a traditional belief that municipal court is less serious than state court,” said Chris Carraway, a staff attorney and professor at the University of Denver. “The reality is that’s not always true anymore.”
Sweeping state-level reforms in 2021 significantly lowered the potential penalties for misdemeanor and petty offenses in Colorado’s state courts, but those reforms didn’t impact municipal courts. As a result, the potential jail sentences for minor crimes in city courts now often far outpace the state’s limits.
Some municipalities, like Aurora and Pueblo, beefed up their local ordinances in response to the state reforms, passing mandatory-minimum jail requirements for certain low-level, non-violent offenses that carry little to no jail time in state courts.
The potentially longer municipal sentences are drawing increased attention from attorneys — who have in recent months filed a cascade of legal challenges aimed at reaching the Colorado Supreme Court — and from legislators, who plan to run a bill next year addressing disparate punishment for city crimes.
A Denver Post analysis of 468 theft and trespassing convictions across 10 of Colorado’s largest cities found defendants on average served five times more jail time in municipal court — but that the difference was just a matter of days. On the whole, people spent little time in jail after their convictions on those crimes across both municipal and state courts.
Still, civil rights attorneys say the disparities in the potential punishments between municipal and state courts violate the Colorado Constitution and should not be allowed to continue.
“Equal protection is a right afforded to all Coloradans,” the American Civil Liberties Union of Colorado wrote in a brief in the Rifle theft case. “That constitutional guarantee does not disappear at a city’s borders just because local legislators try to exert harsher punishment for offenses treated more leniently by the state.”
Cities, though, say this is a home-rule issue. Colorado’s state constitution gives cities and towns the authority to create, define and regulate municipal courts. Municipalities must be able to enact their own laws to best serve their communities, local leaders say.
“(The state) is trying to dumb down criminal prosecution,” Rifle Councilor Brian Condie said in an interview. “One of the purposes of our charter is to protect citizens of our city. How can we do that if our hands are tied?”
Defendants wait outside the courtroom as Judge Mark Gonzales goes down the docket at Greeley Municipal Court in Greeley on Sept. 18, 2024. (Photo by RJ Sangosti/The Denver Post)
Sentencing reform
Before 2021, Colorado had not systematically reviewed its sentencing laws in 36 years.
But as protests erupted in Denver streets and across the country following the murder of George Floyd by a Minneapolis police officer, the state began what would become a transformative process. In June 2020, Gov. Jared Polis convened a sentencing reform task force to go line-by-line through Colorado’s 1,100 misdemeanors.
There were numerous goals to the process: remove outdated statutes that had remained on the books for decades — if not more than a century. Consolidate duplicitous offenses. And reassess the gravity of certain offenses to better align with the state’s goals.
“Our sentencing scheme should be rational, just and consistent so that the punishment fits the conduct,” Polis wrote in a June 2020 letter to the Colorado Commission on Criminal and Juvenile Justice.
He instructed the commission to look at the reforms through an anti-bias lens so sentences wouldn’t be disparate depending on a defendant’s race. “…Incarceration and detention should be reserved for the most serious cases, and rehabilitation should be our goal in every case,” the governor wrote.
The result: a new rubric to determine how much jail time an offender might serve for a wide swath of low-level offenses.
The subsequent bill, SB21-271, reduced the potential jail sentence for petty offenses, such as theft or trespass, from six months in jail to 10 days. Class 2 misdemeanors, such as resisting arrest and criminal mischief, previously punished by up to a year in jail, now carry a maximum 120-day jail sentence.
Criminal justice advocates and lawmakers praised the bill as “long overdue,” calling Colorado’s criminal sentencing laws “outdated and ineffective.” Critics said the approach would make it more difficult for police and prosecutors to hold offenders accountable for their crimes.
“The legislature has been increasingly offender-friendly,” said George Brauchler, a former prosecutor and the Republican candidate for district attorney in Douglas, Elbert and Lincoln counties. “Every year I’ve said, ‘This is the most offender-friendly legislature I’ve seen’ and every year I’ve been proven right. Some reforms I get, but there is an effort here to diminish the amount of punishment that can be doled out for crimes.”
But for all the attention surrounding the new law, the reduced jail sentences never applied to Colorado’s more than 200 municipal courts, which are governed independently by each city and are not part of the Colorado Judicial Department.
This dynamic now makes many city courts a potentially far more punitive forum.
Consider Denver’s municipal code: Retail theft or trespassing are punishable by up to 300 days in jail. In state court, those offenses carry up to 10 days in jail.
In Aurora, those same offenses could mean up to 364 days in jail — more than 36 times the potential sentence in state court.
In practice, though, defendants in both courts this year spent very little time in jail for the low-level crimes of theft and trespass, The Post found.
The Post’s review of more than 400 municipal trespassing and theft convictions and sentences across 10 of Colorado’s largest cities and 4,035 such cases in state courts showed defendants served an average of five days in jail after their municipal convictions, compared to an average of one day in jail for such convictions in state courts.
In theft cases, municipal defendants served an average of six days in jail, while defendants in county and state courts served an average of three days in jail on theft convictions for goods valued under $300, and 20 days in jail on thefts between $300 and $1,000.
Municipal theft charges vary by city, with some jurisdictions including thefts up to $1,000 and others up to $2,000 in the municipal-level charge, even when the amounts stolen are significantly less.
On trespassing convictions, municipal defendants served an average five days in jail, while state defendants served an average one day in jail, The Post found.
Some city courts stood out: In Pueblo, defendants convicted of theft served an average of 23 days in jail; in Denver, trespassers served an average of 15 days. In Fort Collins, Greeley and Thornton, people convicted of theft usually spent no time in jail after their convictions, the data shows. The maximum time a defendant spent in jail on a theft conviction in Greeley was three days.
The Pueblo Municipal Court building in Pueblo on June 3, 2024. (Photo by RJ Sangosti/The Denver Post)
The highest amount of jail time served on a municipal theft conviction was 90 days in Pueblo, the data showed. For municipal trespassing, it was 81 days in Thornton.
Aurora has passed several ordinances in the last year imposing mandatory jail sentences for shoplifting, car theft, failure to appear and skipping out on a bill at a restaurant. Now, retail thieves in Aurora will spend at least 90 days in jail if they have one prior shoplifting conviction, and 180 days in jail if they have two or more convictions.
“When people throw off consequences, when they throw off restraint, then we have anarchy,” Aurora City Council member Stephanie Hancock said during a February meeting, referencing the need for more stringent punishments in the city.
Case data provided by Aurora Municipal Court shows that only six people were sentenced to the mandatory minimum sentence lengths for motor vehicle theft, failure to appear or theft from a restaurant between January and July. Five of those six people had portions of their jail time suspended.
In municipal courts, the prosecutors and judges are appointed by the city. In state court, they’re elected positions. City councils, therefore, hold significant sway in what happens in their local courts.
And that’s how it should be, Brauchler said. Local residents ought to be able to decide through their local politicians how crime is punished in their communities, whether they live in Denver or on the Western Slope, he said.
“That is up to the city. That is up to what those citizens vote for,” he said. “I don’t think it should be the business of the state of Colorado to try to meddle with what the municipalities do.”
But defense attorneys said the mere possibility of higher jail sentences can be coercive for municipal court defendants.
“You do see people pleading out because they face higher sentences,” said Ashley Cordero, a municipal court defense attorney. “Maybe they wouldn’t if it was a 10-day sentence.”
Two municipal court judges consulted by The Post for this story said they take the state statutes into account when sentencing defendants — but that it’s just one in a litany of factors they might consider.
Officers pick the court
Police can now heavily influence how much jail time a defendant will face for a range of petty crimes by sending an arrestee to either municipal or state court — and that decision is largely left up to the officers’ discretion.
The Denver and Aurora police departments have no specific policies that state how an officer should decide whether to send a defendant’s case to municipal or state court.
The charging decision in Denver is based on the “totality, severity and the circumstances of the call/case,” a spokesperson said. Ultimately, though, “it is reliant on the officer’s discretion and facts at the time.”
In Aurora, certain offenses, such as juvenile cases, must go to county court. Municipal charges must have a city ordinance violation.
“Basically, if it can be charged through municipal, then it is,” said Sydney Edwards, an Aurora police spokesperson.
Marc Sears, president of the Aurora Fraternal Order of Police union, acknowledged that Aurora police officers are cognizant of the two different courts when they make an arrest, and said officers are encouraged to send people to municipal court because the court generates funds for the city.
“You’re encouraged to write things into municipal court, instead of the county court, because who is going to get the money?” he said. “The municipality is going to get the money. That’s the cold hard truth of it. Politically, people will say different things, but they are full of (expletive).”
Aurora’s municipal court generated $2.1 million in revenue in 2023, city spokesman Ryan Luby said. City officials expected to spend about $13 million on its Court Administration Department in 2023, which includes municipal court case management, court administration and security, probation and detention, according to the city’s budget.
Municipal courts across the country collect billions of dollars in fines and fees annually, a 2021 Harvard Law Review study found. Colorado’s more than 200 municipal courts collected $106.7 million in fines and fees in 2018, the study estimated.
“Municipal courts are not the only lower courts that self-fund through fines and fees: Some state district and county courts are funded by local revenues as well,” the study read. “But municipal courts provide some of the most extreme examples.”
Sears denied that officers consider the potential jail sentence — and the potential for a harsher sentence in municipal court — when making the decision on whether to send a defendant to municipal court or state court.
“To be honest with you, if we took that into consideration we’d never put anyone in jail because any judge, whether it is municipal or county, is letting people back onto the street,” he said.
Officers do consider whether an arrestee needs particular resources, like mental health care, that might be available in county court but not in municipal court, he said.
Defense attorneys say the significant leverage arresting officers hold over defendants’ sentences gives the officers “misplaced and concerning” power in the criminal justice system.
“Sentences should be regulated by the court and judge, not a law enforcement officer,” said Mackenzie Morris, a defense attorney who worked on the couple’s theft case in Rifle.
The Ralph L. Carr Colorado Judicial Center, which houses the Colorado Supreme Court, in Denver on Tuesday, Jan. 2, 2024. (Photo by Hyoung Chang/The Denver Post)
Fighting for equal protection
Attorneys for the couple accused of stealing the $15 shirts in Rifle appealed the case to the Colorado Supreme Court, arguing the disparate sentences in state and municipal court for the same crime violated the couple’s constitutional rights.
At issue: the equal protection clause.
“For more than 60 years, this court has time and again reaffirmed that Colorado’s constitutional guarantee of equal protection is violated when two laws prohibit identical conduct but punish that conduct differently,” the ACLU wrote in its brief. “That is exactly the case here.”
The most visible aspect of the equal protection violation, the couple’s attorneys argued, is the fact that the Garfield County jail houses people sentenced by both Rifle Municipal Court and Garfield County Court.
“Thus, defendants from the same county, sentenced for the same conduct, housed in the same jail, could be serving significantly different sentences,” the lawyers wrote.
The Supreme Court in December dismissed the appeal after Rifle changed its local ordinances to align with the state’s penalties. The city also dropped the charges against the couple. Neither received any jail time.
The Rifle case, though, struck a chord with municipal defense attorneys around the state, spurring a movement to more regularly challenge the constitutionality of these disparate sentences.
In July, an attorney in Aurora filed a similar motion for a defendant accused of trespassing. The charge carries a maximum sentence of up to 364 days in jail, while the equivalent state charge would only be up to 10 days.
In Longmont, a woman is challenging a 30-day jail sentence for a probation violation and trespassing that would be limited to 10 days in state court.
A Denver individual accused of obstructing the street during a pro-Palestine rally at the downtown Auraria Campus faces a maximum jail punishment 30 times longer in municipal court than if the officer had chosen to charge them in state court for identical conduct.
The legal analysis, the individual’s attorney argued in court filings, is straightforward: The municipal and state ordinances for obstruction are the same. The maximum penalties are vastly different.
“It smacks of unfairness,” said Alison Gordon, a municipal court defense attorney. “As defenders, we’re playing whack-a-mole until something comes down from a higher court saying this isn’t allowed.”
Judges, too, are waiting for more guidance.
“Appellate decisions are like recipes,” said Michael Goodbee, a municipal judge in Golden and Idaho Springs. “You want me to bake a cake? Tell me what to put in it. Tell me how to mix it. Tell me what I’m supposed to consider so that I don’t have to waste your time by getting it wrong.”
Cities pushed back on the equal protection argument, saying the Colorado Constitution allows for home rule — meaning municipalities can pass ordinances addressing matters of local concern.
The state legislature, when passing SB21-271, took no action to modify the powers granted to home-rule municipalities under the constitution, Greeley city attorneys noted in a recent court filing.
“Thus, the present situation arises not from municipalities suddenly seeking to impose harsher penalties for offenses, but rather from municipalities continuing on with the unmodified grant of constitutional and statutory authority previously given to them,” Greeley’s attorneys wrote.
Rifle city councilors, responding to the 2023 theft case, said they believed their original municipal code aligned with their local priorities to deter crime.
“Our conditions are different than Denver or even Silt,” said Condie, the Rifle councilor. “As long as we comply with federal and state laws, local control is best.”
There are some crimes that wouldn’t be prosecuted at the state level that have immense local concern, said Kathryn Kurtz, Arvada’s presiding city judge. Prosecuting the use of fireworks, for example, due to west Arvada’s high fire danger, means much more to this city than it would in other jurisdictions, she said.
Seen from behind the courtroom door, Judge Mark Gonzales presides over his courtroom during the morning docket at Greeley Municipal Court in Greeley on Sept. 18, 2024. (Photo by RJ Sangosti/The Denver Post)
Potential changes coming
Colorado’s municipal courts are enshrined in the state constitution, which gives cities and towns the authority to create, define and regulate municipal courts. The city courts operate with total independence from the Colorado Judicial Branch.
About half of the 7,500 city courts in 30 states operate like Colorado’s, with freedom from the state judiciary, according to the Harvard Law Review study.
In the other half, municipal courts are legally unified with the state judiciary, the study found. Such city courts may report data about charges, convictions and sentencing to the state court administrator, and some are subject to state supervision.
Along with being the most independent type of municipal courts, Colorado’s city courts also carry some of the heaviest potential maximum penalties — 364 days in jail — among all municipal courts across the U.S., according to the 102-page study.
In North Dakota, municipal courts can sentence a defendant to no more than 30 days in jail; in New Mexico, 90 days in jail. In Texas, municipal courts can only penalize crimes with fines, not with jail time. Across all states, the maximum jail sentences are typically under six months, the study found.
A handful of states, including Colorado, allow municipal court jail sentences of up to a year.
These courts have been long-criticized for “legal sloppiness, punitive harshness and disrespectful treatment of defendants,” wrote the study’s author, Harvard Law School professor Alexandra Natapoff. City courts lack impartiality and are often “run in informal fashion by interested parties, or by parties whose salary and tenure depend on satisfying local political and economic interests,” she found, going on to suggest that reform of the municipal court system is needed.
“At the bottom of the penal pyramid, injustices flow not only from the presence or absence of rules and lawyers, but also from the pervasive sense that these are minor cases and unimportant defendants who do not deserve full-fledged legal respect, either on paper or in practice,” she wrote. “…In other words, to improve municipal courts, first and foremost we have to care about them.”
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In Colorado, reforms at the state and local level could be in the offing.
Denver City Council members are working on a bill to bring the city in line with the updated state sentencing schemes.
“By making city level offenses consistent with the state classifications, City Council would reduce unnecessary duplicate bureaucracy and court time for those navigating the legal system,” Councilmembers Shontel Lewis, Serena Gonzales-Gutierrez and Sarah Parady said in a joint statement. “Restructuring and streamlining sentencing guidelines was the correct choice for Colorado and is the right decision for Denver.”
In the state legislature, meanwhile, lawmakers are contemplating a bill next legislative session to address these sentencing disparities.
Rep. Mike Weissman, an Aurora Democrat, said legislators are still early in the process, but they recognize that people shouldn’t receive different punishments for the same offense just based on their geography in the state.
“The most severe thing any government can do is take away your autonomy, to put you in jail. We need to be really thoughtful about that,” he said. “It should not be casual and should not be disparate.”
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