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Death Penalty, Prison Gerrymandering, and ICE May Be on Colorado's 2020 Menu

Advocates of criminal justice reform prepare their next legislative efforts in states like Colorado where the 2019 session is over.

Advocates of criminal justice reform prepare their next legislative efforts in states like Colorado where the 2019 session is over.

Colorado’s Capitol (Wikimedia Commons)

Colorado’s legislative session ended in May with plenty of movement on criminal justice reform.
The state narrowed disenfranchisement, defelonized most drug possession cases, required jails to provide free menstrual hygiene products, barred law enforcement from honoring ICE detainers, shielded some immigrants from facing deportation due to misdemeanors, and restricted cash bail.
But reform stalled on some major fronts, including the death penalty, prison gerrymandering, and ICE’s 287(g) program. Some advocates are now planning their moves in the next legislative session on these issues, among others.
1. Capital punishment
While efforts to abolish the death penalty have long stalled, 2019 seemed promising given Democrats’ newfound control of the state government. But sponsors pulled the bill from consideration in the spring because of insufficient support in the state Senate. 
The ACLU of Colorado is now planning community-outreach events in the remainder of 2019 to persuade undecided senators to back abolition next year, according to Westword.
The Colorado Independent reported in March that 14 of the 19 Democratic senators support abolition, plus Republican Kevin Priola. That left the legislation three votes shy of a majority. Democratic Senator Rhonda Fields opposed it, while fellow Democrats Jessie Danielson, Joann Ginal, Tammy Story, and Nancy Todd were on the fence. 
None of these four Democrats answered a request for comment on what they are looking to hear on this issue to decide whether they will support abolition. Opponents of the death penalty need to persuade three of them, or else they need to secure more Republican support. GOP lawmakers proved decisive to abolition’s success in New Hampshire this year.
There has been no execution in Colorado since 1997. But David Sabados, executive director of Coloradoans for Alternatives to the Death Penalty, told me that abolition would tangibly impact future cases. Prosecutors still seek the death penalty, he said, “which is time-intensive, which is incredibly expensive, which can be an extra trauma to victim family members watching these long cases play out.” Sabados also faulted the death penalty’s disproportionate application. The three people on Colorado’s death row are all African American.
Efforts to abolish the death penalty are also likely to return in Wyoming, state advocates told me in February.
2. 287(g)
A new law restricts local law enforcement’s cooperation with ICE, but it was narrowed after Democratic Governor Jared Polis warned he would veto it over a provision banning counties from joining ICE’s 287(g) program, which deputizes local officers to act like federal immigration agents. The Trump administration’s harsh policies toward immigrants are only growing more visible, and some lawmakers like Senator Julie Gonzales want to return to the issue and strengthen the “bright line” between ICE and local law enforcement.
3. Prison gerrymandering
Time is running out for states to eliminate prison gerrymandering, the practice of counting incarcerated people where they are detained rather than at their last address for purposes of redistricting. This skews power toward disproportionately white and rural areas. With the next round of redistricting around the corner, states must act within the next two years, and there is now movement afoot in Colorado.
Representative Kerry Tipper told the Colorado Independent that she may introduce legislation to end prison gerrymandering next year. Tipper, a Democrat, is working on this bill with Common Cause Colorado, the state chapter of an organization that supports voting rights. “When you have folks that are being counted in the area they’re being incarcerated in,” she said, “how is it fair to bloat numbers for purposes of redistricting, when these people can’t vote?” 
Indeed, people incarcerated over a felony conviction cannot vote in Colorado, unlike in Maine and Vermont. Colorado enfranchised people on parole this year, but it did not altogether abolish criminal disenfranchisement. Representative Leslie Herod, a Democrat who sponsored that reform, told me in May that she was open to advocating for that next step. She told me this week that she thinks that “prison gerrymandering should be a thing of the past.”
There are many other issues for Colorado to address next year. 
The most immediate include extending the state’s 2019 foray into bail reform to more categories of offenses, and expanding its new law that reclassifies drug possession as a misdemeanor by lifting the carve-outs and making defelonization retroactive (Oklahoma did the latter this year). Herod also said she wished to reduce incarceration, and specifically target “the increase of the female prison population,” by “providing more in-community treatment” for people who are currently being incarcerated for issues related to addiction and mental health.

In other states where the 2019 legislative session is over, reform advocates are similarly assessing what happened this year and preparing for the next session:
Oregon: Since Louisiana’s 2018 referendum, Oregon is the only state where people can be found guilty by a nonunanimous jury. And the state took no action this year to end this anomaly. Reform looked to be on the way when even the Oregon District Attorneys Association endorsed changing the state Constitution, and when the House passed a bill to put the matter on the 2020 ballot. But the Senate adjourned without adopting it. The Associated Press reports the issue is sure to return next year. The U.S. Supreme Court is set to consider a case involving a nonunanimous conviction, and some advocates say they will press the issue in the legislature once more.
Rhode Island: Samantha Michaels reports in Mother Jones that in Rhode Island, anyone who is serving a life sentence is considered to be “civilly dead,” and therefore deprived of all civil rights. This includes the right to complain in state court about mistreatment. Rhode Island is the only state where the status of “civil death” is applied so literally, but legislation to end it has failed every year since 2014. Will 2020 change this? A related bill that failed this year would have abolished life without parole for people under 18. 
Texas: A string of promising criminal justice reforms derailed in the 2019 legislative session. Bills to raise the age of criminal responsibility to 18, decriminalize marijuana, curb bail, reform the death penalty, and restrict asset forfeiture failed despite initial successes. The Texas Tribune reports that a bipartisan group of 12 representatives is forming a Criminal Justice Reform Caucus to better prepare for the next legislative session, which is in 2021. “What was a session that could have seen monumental reform in criminal justice saw very little,” said Joe Moody, a Democrat and one of the group’s two initial leaders alongside Jeff Leach, a Republican.