Eighteenth Judicial District Attorney George Brauchler is following fellow DAs in Denver and Boulder counties in seeking to offer relief to people convicted of low-level marijuana offenses, but he disagrees with his colleagues about how to address old convictions and whether the other DAs attempts are even legal.
District attorneys in Boulder County and Denver have recently sought to clear low-level marijuana convictions for people who are affected by their criminal records now that marijuana and related low-level offenses for possession are no longer illegal. Both municipalities have begun offering to review and vacate some convictions. According to Brauchler, though, current state law doesn’t offer prosecutors an adequate mechanism to seal marijuana convictions. He sent a letter on Thursday to his district’s state legislators to ask them to solve that problem and to offer assistance in coming up with a statewide plan.
“While I largely support allowing some misdemeanor marijuana offenders to have records of their convictions sealed from public access so that a low-level marijuana conviction does not end up impacting their life years down the road, existing law does not give me the tools to accomplish that,” Brauchler wrote.
Boulder’s program, announced in November, allows individuals to apply for the prosecutors’ office to vacate low-level offenses going back to 2008, but the office has said the plan is to eventually address older convictions as well. Denver’s “Turn Over a New Leaf” program similarly offers to vacate low-level marijuana criminal convictions that occurred in Denver before marijuana legalization.
“A minor conviction for something that is now legal should not prevent people from living their lives to the fullest and obtaining fundamental goals like housing and employment,” McCann wrote in a January op-ed.
But Brauchler said he believes what the prosecutors in Denver and Boulder are doing is illegal.
He said he met with Boulder County District Attorney Michael Dougherty early in the process to find out his plan for dealing with the marijuana convictions. Other attorneys in the 18th DA’s office met with prosecutors in Denver DA Beth McCann’s office as well.
“The way that they’re using the existing rules and laws to get the outcome they think are desired, I’m not willing to do that,” Brauchler told Law Week. “I want to say you, legislature, give us the outcome you want to see and give us the tools to accomplish it.”
In addition to asking legislators to pass a solution in state law, he also made suggested changes. The letter details existing statutes that offer some remedies for sealing drug convictions but that for one reason or another don’t meet all of the desired outcomes.
According to Brauchler’s letter, one statute — C.R.S. 24-72-704 — allows prosecutors to seal non-distribution drug convictions entered between July 1, 2008, and July 1, 2011, after 10 years from the end of their sentence. Brauchler notes in his letter that the law does not provide a legal mechanism to seal marijuana convictions entered prior to July 1, 2008.
For convictions after 2011, Brauchler said in his letter that section C.R.S. 24-72-705 allows prosecutors to seal drug offenses after a shorter period of time from the end of their sentence. Brauchler highlights that this law allows district attorneys to object, an important distinction from his perspective.
He also noted that the two current mechanisms do not address convictions entered earlier than 2008. The state legislature also enacted a statute in 2017 — encoded as CRS 24-72-710 — that Brauchler said attempted to provide for the sealing of misdemeanor marijuana convictions that would no longer be crimes.
“The failing of this statute is that any conduct that was previously a misdemeanor marijuana offense (not a petty offense) is almost certainly still illegal under Colorado law, although the level of offense may have been reduced,” he wrote. “Thus, this statute does not appear to apply to anyone.” Brauchler’s proposal to change the laws suggests amending the statute that applies to post-2011 convictions to make it apply to all convictions without a time limitation and also to repeal the statute that applies to post 2008 convictions.
Brauchler said he received responses from legislators and county commissioners acknowledging receipt of his letter, but he has not yet had discussions with anyone about sponsoring a bill.
He also said he hadn’t reached out to other district attorneys about joining him in the effort either. The letter is his first step in his efforts to proactively address the issue with legislators, he said.
Several details about prosecutors’ current efforts to vacate convictions and elements of the current statutes are noteworthy. For starters, Denver notes in an FAQ for its “Turning Over a New Leaf” program that the 2017 law also does not contain a mechanism for vacating convictions, which Denver’s program does. Brauchler, however, said that convictions should be sealed but not vacated entirely.
“Whether that conduct today would be illegal or not, every one of those people earned that conviction by knowing behavior. I’m not going to act like that didn’t happen,” Brauchler said. “Whether that should haunt them is a different analysis, but I’m not going to do that.”
He also said that the provision in the statute addressing post-2011 convictions that allows for prosecutor objections is important as well. He said prosecutors should have the chance to assess whether a conviction was reached through a plea deal by consolidating or reducing other charges. For instance, someone willing to plead guilty to a marijuana offense might have another low-level charge dropped, or alternatively, someone who would have otherwise been guilty of a drug-related felony might plea down to a misdemeanor. He said it’s important to allow district attorneys to have the discretion to review a conviction.
Brauchler’s plan is a clear sign he won’t be bringing a plan to the 18th District anytime soon that resembles what his colleagues in Denver and Boulder are implementing. But he said he’s “hopeful to start a conversation” with legislators about a statewide system.
— Tony Flesor