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CANDIDATE

QUESTIONNAIRE

phil weiser (D)

Each candidate for the office of the Colorado Attorney General was invited to respond to the ACLU of Colorado Attorney General Candidate Questionnaire. Candidates were given the opportunity to respond to a series of Yes/No questions with space to comment. Below is the full questionnaire and comments section. 

 

1.

Do you agree that there are racial disparities throughout the criminal process that negatively, disproportionately, and unfairly impact communities of color? 
 

ANSWER: YES

COMMENT:

There are racial disparities at each level of our criminal justice system, ranging from disparate incidents of suspension and expulsion that contribute to the “school-to-prison” pipeline, to racial disparities in arrest rates and sentence lengths, to the racially disproportionate use of force by law enforcement against people of color. As Attorney General, I would both fully acknowledge and work vigorously to fight against such inequities.

 

 

2.

If you are presented with strong evidence of systemic racial bias in a particular local law enforcement agency would you use your civil enforcement authority to correct the situation? 

ANSWER: YES

COMMENT:

If a local law enforcement agency is engaging in a systematic pattern of racially biased conduct (say, racial profiling), I would use any relevant civil enforcement authority to address the situation. Moreover, I would act proactively to work to ensure that such situations do not arise in the first place, including in ensuring that the Peace Officer Standards and Training program provides effective training.

 

3.

Do you believe Colorado incarcerates far too many people for an extended period of time?

ANSWER: YES

COMMENT:

Contrary to what some candidates in this race have said, mass incarceration is not a “myth”: it is a reality for far too many Coloradans who have been incarcerated when other correctional alternatives would have been much more appropriate. Accordingly, as Attorney General I would encourage the use of alternatives to incarceration where individuals do not pose a threat to public safety. Such alternatives include drug treatment, mental health services, and diversion programs for non-violent offenders, particularly juveniles.

 

4.

In Colorado’s current money bail system, two individuals who commit the same crime often face differing outcomes based on their socioeconomic status. Though “innocent until proven guilty,” the poor often remain incarcerated pretrial for their inability to pay. Those with more access to financial means are freed even if they are a flight risk or pose a serious danger to public safety. If elected Attorney General, will you actively support substantial reforms to Colorado’s money bail system to ensure that people are not incarcerated pretrial solely because they do not have the means to pay their bail?

ANSWER: YES

COMMENT:

The reality for many pre-trial defendants is one we must change. Those facing trial should remain in jail only where they pose a threat to public safety or are a flight risk. If neither of those are true, they should not be kept in jail because they cannot afford bail. If either of those are true, they should not be released because they can afford bail. In short, the system for managing bail must be reformed so that it uses an individualized assessment approach.

 

5.

California Attorney General Xavier Becerra stated that his office defends bail determinations that take into account what the defendant can afford to pay¹ and whether there are alternatives to holding them in jail before trial. As Attorney General would you likewise refuse to defend bail settings undertaken without meaningful consideration of a defendant’s ability to pay and alternatives to wealth-based pretrial detention?

ANSWER: LIKELY

COMMENT:

I would have to study the issue more carefully, and each specific case is different. But as a preliminary matter, I agree that setting bail without meaningful consideration of a defendant’s ability to pay—and not based on a threat to public safety or being a flight risk—raises serious due process issues. To avoid such an outcome, I will work hard in the legislature to improve our system of bail.

 

6.

Maryland Attorney General Brian E. Frosh issued an opinion for the General Assembly concluding that an individualized inquiry into defendants’ ability to pay a monetary bail amount is constitutionally required and that “setting bail in an amount not affordable to the defendant, thus effectively denying release, raises a significant risk that the Court of Appeals would find it violates due process.”² If elected Attorney General, will you commit to issuing a similar opinion examining the constitutionality of wealth-based pretrial detention within your first year in office?

ANSWER: LIKELY

COMMENT:

As noted above, I have serious concerns about the legality of bail determinations that do not depend on individualized inquiries. Assuming we cannot fix any such defects through other processes, I will give serious consideration to issuing a similar opinion.

 

 

7.

Immigration and Customs Enforcement (ICE) often asks sheriffs to hold prisoners for up to 48 hours past their release date to allow time for ICE to take the prisoners into custody. These detainer requests are not warrants signed by a judge. Several courts around the country, including one state court in Colorado, have ruled that a sheriff’s decision to honor these detainer requests violates the law. Do you agree that Colorado sheriffs exceed their authority under Colorado law by continuing to jail individuals who are eligible for release solely based on a detainer request issued by ICE?

ANSWER: YES

COMMENT:

I agree with the cogent analysis of the El Paso County District Court in Cisneros v. Elder, along with the reasoning of sister state courts, that Colorado sheriffs exceed their authority under Colorado law when they engage in such practices.

 

8.

Maryland Attorney General Brian E. Frosh issued a memorandum advising state and local law-enforcement agencies that they face legal liability exposure if they seek to enforce federal immigration laws. The opinion also advises local law enforcement not to hold individuals past their release dates on behalf of federal authorities unless they have a judicial warrant or probable cause that the subject of the detainer has committed a crime (distinguished from a civil immigration violation).³ As Attorney General, would you commit to issuing a similar advisory opinion within your first year in office?

ANSWER: needs study

COMMENT: 

I would commit to exploring the different issues raised above and issuing an advisory opinion on each. While I am very sympathetic with much of Attorney General Frosh’s reasoning, I would need to further study the issue before committing to the precise conclusions outlined above.

I share Attorney General Frosh’s view that in many areas of immigration law, unless our State law has specifically authorized cooperation with federal authorities, a locality would face legal liability exposure if they cooperated with such authorities. An example of such a practice, in my view, was El Paso County’s practices with respect to detainers of individuals held solely on the ground of a detainer request issued by ICE.

That said, the categorical statement that, in all circumstances, state and local law enforcement agencies face legal liability enforcing any immigration law is one I would have to study more carefully before I could commit to, since some forms of cooperation may have a legal basis.

 

9.

Massachusetts Attorney General Maura Healey filed a brief arguing that Massachusetts law provides no authority for officers to hold an individual solely on the basis of a federal civil immigration detainer beyond the time that they would otherwise be released from state custody.⁴ As Attorney General, would you commit to taking a similar position with regard to Colorado law, in an amicus brief if the opportunity arose, explaining that state law does not authorize sheriffs to rely on ICE detainers as grounds to depart from their state law duty to release prisoners when they post bond, complete their sentence, or otherwise resolve their criminal case?

ANSWER: YES

COMMENT:

As noted, I agree with the El Paso County District Court’s ruling in Cisneros v. Elder that Colorado law does not authorize sheriffs to hold citizens on the sole basis of an ICE detainer. Applying this logic, I would also agree with the position taken by Attorney General Healey as outlined above.

 

10.

In 2017, about 60,000 Colorado driver’s licenses were cancelled due to unpaid traffic tickets. Do you believe that suspending driver’s licenses should be reserved for bad driving, not debt collection?

ANSWER: YES

COMMENT:

While I would have to study the matter further before reaching a final conclusion, I am skeptical of a policy that cancels driver’s licenses based on non-payment of traffic tickets. I believe such measures disproportionately punish indigent Coloradans, and given how many Coloradans depend on their cars to keep their jobs, meet child-care obligations and perform other necessary tasks, we should be cautious about such a draconian step.

 

11.

Recently in Tennessee, a federal district court ruled that the state’s practice of revoking the driver’s license of any person who failed to pay court debt for one year or more does not survive rational basis scrutiny and is unconstitutional. The court found suspending driver’s licenses for unpaid debt is powerfully counterproductive, crippling already impoverished individuals’ ability to earn a living and care for their families. In Colorado, the Department of Motor Vehicles (DMV) is required to suspend licenses when a debt goes unpaid for 30 days. This practice affects about 60,000 people each year. Do you commit to writing an opinion opposing this practice and acknowledging as illegal within your first year in office?

ANSWER: likely

COMMENT:

While I would have to study the matter further before reaching a final conclusion, I am skeptical of a policy that cancels driver’s licenses based on non-payment of traffic tickets. I believe such measures disproportionately punish indigent Coloradans, and given how many Coloradans depend on their cars to keep their jobs, meet child-care obligations and perform other necessary tasks, we should be cautious about such a draconian step.

 

12.

Do you believe that the public, with few exceptions, has a right under Colorado open records law to obtain records reflecting internal investigations into serious allegations of misconduct related to an officer’s on-duty conduct involving a member of the public?

ANSWER: YES

COMMENT:

As a general matter, I share this view. As noted, there will be times where exceptions will need to be made, such as to protect the identities and safety of involved parties. But so long as these exceptions are in place, as a general rule citizens should have access to such information and Denver’s ability to manage such a system demonstrates that it can be managed effectively.

 

13.

Do you agree that, with few exceptions, children held in juvenile detention centers have a right to access their own files kept by the Division of Youth Services, especially in situations where there have been allegations of institutional abuse?

ANSWER: YES

COMMENT:

As a general matter I share this view, especially where there have been allegations of institutional abuse. That said, there will be times where exceptions, provided they are narrowly tailored, can and should apply.

 

14.

If the state legislature passed a bill prohibiting cooperation between state employees and ICE, would you defend this law against possible federal attack?

ANSWER: YES

COMMENT:

As a general matter I share this view, especially where there have been allegations of institutional abuse. That said, there will be times where exceptions, provided they are narrowly tailored, can and should apply.

 

15.

Attorneys General of multiple states have filed lawsuits against the Trump Administration to challenge unconstitutional policies including: travel bans to prevent individuals from certain countries from entering the US; executive orders that allowed businesses to deny coverage for contraceptives based on religious and moral reasons; a ban on openly transgender people in the U.S. military; and the infamous policy of family separation at the border. As Attorney General would you join similar lawsuits that challenge federal government policies that harm Coloradans?  

ANSWER: YES

COMMENT:

Throughout this campaign I have emphasized that State Attorney Generals are a critical check on the Trump Administration’s unconstitutional policies, especially in a time where Congress has refused to act. I will evaluate each case and litigation separately and on its own merits, asking how they impact Colorado. Where constitutional freedoms are at stake, however, I will not hesitate to defend them.

 

16.

A coalition of 19 Attorneys General filed comments opposing the Department of Health and Human Service’s Proposed Rule that sought to unlawfully expand the ability of businesses and individuals to refuse to provide necessary health care on the basis of their “religious, moral, ethical, or other beliefs.” The Attorneys General claim it violates existing federal and state laws and uses the guise of religious freedom to undermine public health. If permitted, would you join in these comments and oppose a proposed rule that places ideology above patient safety and care?

ANSWER: YES

COMMENT:

I would oppose the DHS’s proposed rule in thisinstance.

 

NOTES

  1. Koseff, Alexei, California's Bail System Doesn't Make Us Safer, Attorney General Says, Sacramento Bee, available at www.sacbee.com/news/politics-government/capitol-alert/article201169714.html.

  2. Letter from Brian E. Frosh, Maryland Attorney General, to Honorable Alan M. Wilner, Chair, Standing Committee on Rules of Practice and Procedure (Oct. 25, 2016).

  3. Brian E. Frosh, Md. Att’y Gen., Local Enforcement of Federal Immigration Law: Legal Guidance for Maryland State and Local Law Enforcement Officials (2017). 

  4. Brief for Respondent, Lunn v. Commonwealth, 78 N.E.3d 1143 (Mass. 2017) (No. SJC-12276). 

  5. See Thomas v. Haslam, 303 F. Supp. 3d 585 (M. D. Tenn. 2018).

 

This website features candidate responses to the ACLU of Colorado 2018 Attorney General Candidate Questionnaire. All Attorney General candidates in the state were invited to respond.