“Women of color lead and it’s a problem”: How Colorado’s last bill of 2022 died
The very last bill to be voted on in Colorado’s 2022 legislative session was designed to make sure the state never lets another child experience what Lorenzo Montoyawent through.
Montoya was 14 years old in 2000 when he was taken into questioning by Denver police detectives who suspected him in the killing of a Skinner Middle School teacher named Emily Johnson.
He didn’t kill her. Again and again, that’s what he told detectives.
But over a period of hours, first with Montoya’s mom present and later alone with the child, the police planted a narrative in the child’s mind. They claimed they’d already retrieved fingerprints, shoe prints and hair samples to back it up. Confused and under enormous pressure, Montoya relented and gave a coerced confession. He was convicted of murder and spent the rest of his childhood and most of his 20s incarcerated, before being exonerated in 2014.
It is legal in Colorado and all states but Oregon, Illinois and Utah for police to lie to people, children and adults alike, during interrogations. They can say they have video footage that does not exist, that they’ve collected DNA evidence they don’t have. They can promise that confessing to a crime is in someone’s best interest, whether or not that is true.
Senate Bill 23 was meant to prevent that. Under this bill, courts would no longer have been able to admit information, including confessions, obtained through what the bill’s title termed “deceptive tactics.”
Police fought it hard, arguing they need that tool to be able to solve certain crimes. Prosecutors opposed the measure and so did Republican lawmakers.
Speaking for his fellow 21 elected district attorneys, Boulder’s Michael Dougherty told Colorado’s Senate Judiciary Committee in February, “Let’s say a detective is interviewing somebody in custody who’s believed to have committed a murder outside the Capitol. The detective falsely says, ‘I have video of you doing it.’ And then the person says, ‘OK, you got me. I did it.’ This bill really highlights, is that appropriate or not? Should that be allowed or not? Should law enforcement be allowed to take that step? And there are a lot of reasons why the answer is yes.”
Despite opposition, the trio of Democratic women of color sponsoring the bill kept it alive all the way until the final 45 minutes of the 2,870-hour legislative session.
By then, Capitol denizens had their vacations booked and their champagne ready to pop. SB22-23 was the only legislative business standing between them and an eight-month recess.
Reps. Serena Gonzales-Gutierrez and Jennifer Bacon, the House sponsors, had counted enough votes to pass the bill. It had been amended against their wishes earlier in the week, but the Senate Wednesday evening restored it to near its original form. The sponsors were one vote away from sending it to the governor’s desk.
It was after 11 p.m. and the session, per the state constitution, had to end by midnight. Republicans were ready to stall the bill as long as it took to make sure it didn’t pass. Democratic leadership had tools to counter a delay and force a vote, but declined to use them.
The representatives stepped to the lectern to regretfully ask that their bill be tabled for the year. Twenty-two minutes later, Garnett banged the gavel to signify the session was over, and the House erupted in cheers.
The death of SB22-23 was a fitting end to a session that saw law enforcement gain back a substantial amount of political power it had lost a few years ago, when the Democrats who run the state Capitol were more willing to challenge police and prosecutors. And it was arguably the most notable casualty of a chaotic final stretch of the session that saw Democrats lop off portions of their agenda because they mismanaged the 120-day clock and allowed a fractured and often directionless House GOP to stumble into significant leverage.
The leader of the House GOP, Republican Hugh McKean of Loveland, knows his side got lucky in the final hour of the session.
“What they could’ve done is pass that bill no matter what,” he said.
“Yeah,” Gonzales-Gutierrez said in a separate interview. “We could’ve totally done it and been ruthless to them.”
Now the reformers are left angry and confused about why the bill sat unmoving on the calendar for so long and why it, of all Democratic policies, was among the late-session sacrifices.
They know that in this Capitol agendas change with the polls, law enforcement is hugely influential and Republicans see real opportunity to win back the Senate this fall. Because of all of that, they know there is zero guarantee this bill can pass if brought back in 2023.
“I know where I stand”
One big reason the calendar was jammed up at the end of the session is that Democrats waited for months, until the back 60 days, to introduce or advance a slew of the year’s most controversial bills. Only in the final days of lawmaking did they pass keystone bills to combat fentanyl (HB22-1326), to allow county government workers to unionize (SB22-230) and to protect election systems from officials motivated to act on Donald Trump’s lie that the 2020 election was stolen (SB22-153).
Each of these bills, among many others, was subject to lengthy debate. The longer the session dragged on, the greater opening Republicans had to stall on all kinds of bills — even minor ones they supported — in order to slow the session’s progress and thus to slow Democratic priorities. That project began midway through the session but became all-hands-on-deck on Monday, May 9, the third-to-last day before closing. While the Senate worked mostly in peace, Republicans in the House started delaying every bill that came up by forcing the bills to be read aloud and word-for-word, by bringing hopeless amendments and by making long speeches.
In a caucus meeting that Monday, House Republican Ron Hanks encouraged his colleagues to look ahead a week and imagine how good it would feel to have obliterated so much legislation
“(H)ow much could we tell the entire state that we left 50 bills on the table because we fought this?” he told them.
The House delays stretched for almost a full day, until around 4 a.m. Tuesday, when the House speaker, Denver Democrat Alec Garnett, agreed to a series of concessions so that Republicans would drop the stall.
One of those concessions gutted SB22-23 such that it lost virtually all of its teeth. Existing language would be replaced by what amounted to a whole new bill calling for law enforcement to adopt written policies about how to interrogate kids in custody. There was nothing in the new language to compel the change that the bill sponsors sought.
The bill’s Senate sponsor, Denver Democrat Julie Gonzales, said she is clear on what happened.
“Speaker Garnett sacrificed that bill in order to keep DAs and Republicans at peace,” Gonzales said in an interview the day after the session ended.
That’s “outrageous,” Garnett told The Denver Post, insisting he hadn’t acted over the heads of Gonzales-Gutierrez and Bacon.
The last hour of the session was also the last hour of Garnett’s time in the legislature. He’s term-limited in the House and, though he considered it for a while, he’s decided not to run for mayor of Denver in 2023. He said he refused to have his final policy decision at the Capitol involve forcing a vote on SB22-23 when doing so would require limiting debate by “calling the question” — that is, cutting off remarks and forcing a vote.
Lawmakers hesitate to use this tool because it necessarily means siding against public debate and ramming legislation through at an unnatural pace. “Calling the question” is an extremely rare move in this Capitol, not seen in the House since 2014.
Taking that nuclear option would not only mean bucking tradition but also going back on a part of the 4 a.m. deal Garnett had made with Republicans.
“That was my decision,” Garnett told The Post.
“I told (the sponsors), you guys can do whatever you want, but I’m not calling the question. I did say that they could debate the bill, but I didn’t feel like it was appropriate to call the question to end debate in the last hour of the session.”
Gonzales-Gutierrez doesn’t feel Republicans were honest negotiators — just hours after the 4 a.m. accord, Republicans were already telling press that the goodwill had expired — but she respects that a deal is a deal.
“I’m not going to impugn any motives or impugn anyone in here,” she said on the House floor, just before mercy-killing the bill, “but I know where I stand when it comes to keeping my word.”
Gonzales-Gutierrez, the House’s assistant majority leader, doesn’t have as simple an explanation as Gonzales does for why SB22-23 was sacrificed. She gets that the bill was gutted in order to keep Republicans at bay, but she doesn’t understand why the bill hung around long enough to be a trade chip. She’s frustrated that a bill so important to women of color legislators wasn’t treated as a broader Democratic priority.
“I don’t know that I have an answer for that. In my role as (assistant majority leader), I was not in charge of managing the daily calendar,” she said.
“It felt like we kept waiting, just waiting, to do things. I know the speaker values stakeholding work, but even when you feel like you’ve done all that work and you know there will be a fight, there’s kind of this concern about having the fight. What happened in a lot of bills, not only mine, is that people made a lot of concessions because they were being encouraged to avoid a fight because of the length of time it takes.”
She added, “I know there’s other members that feel the same way.”
A changed political environment
Not long ago this bill might have sailed through the legislature, or at least passed without so much delay.
Democrats flipped the state Senate in November 2018 and claimed a legislative trifecta, then entered the next year ready to pass all manner of bills that had not been viable under a split Capitol. Suddenly liberal policies around immigration, oil and gas, gun safety, climate change and criminal justice, among other topic areas, had life.
This forced an adjustment by law enforcement leaders, who had long enjoyed success on most bills they lobbied. Between 2015 and 2018, a University of North Carolina report found, bills in this state were 20% more likely to pass when backed by the Colorado District Attorneys’ Council.
The legislature’s changing attitude on policy affecting police and courts was best exemplified by Senate Bill 217 in 2020, a sweeping reform bill inspired by local and nationwide protests following the killing of George Floyd by Minneapolis cops. Lawmakers stuffed that bill with provisions that individually would’ve been tough sells before the protests, and that would’ve been impossible before Democrats took over the Capitol.
Between 2019 and 2020, lawmakers also defelonized drug possession under four grams, abolished the death penalty and allowed parolees to vote. They banned cash bail for petty and municipal offenses, made it easier for people with previous convictions to find employment and educational opportunities, and limited landlords’ ability to discriminate against those people. They created a new path for record-sealing for some with criminal records.
Then the pandemic set in and crimes like homicide, car theft and aggravated assault rose in Colorado and many other states. By the end of the 2021 session, when a pair of swing-vote Democrats killed that year’s most significant criminal justice reform bill, it was clear that power dynamics had changed again.
Tom Raynes, the executive director of the Colorado District Attorneys’ Council, said 2022 felt different.
“I think our voice for a couple of years — 2019, 2020, maybe even into 2021 — our points weren’t being listened to as much as they were this year,” he said. “It was a more balanced year for law enforcement.
“Elections, crime rate, the drug crisis on fentanyl — all of those things wrapped together to get to foster a more balanced analysis and decision-making process.”
The legislature’s boomerang in this area is tough for Jennifer Bacon to stomach. She’s a Black woman from Denver with deep professional experience working with children involved with the legal system. (Gonzales-Gutierrez and Gonzales each have lots of experience there, too.) Bacon believes policies like SB22-23 can’t wait, and wishes more of her colleagues felt the same urgency. She said she can’t help but notice that white Democratic lawmakers often seem to have an easier time getting their bills passed, even when those bills concern the same topics Bacon takes on.
Or, as Gonzales-Gutierrez put it, “Women of color lead and it’s a problem.”
Opposing SB22-23 wasn’t about race, McKean said, but rather the content of the bill. Cops maintained throughout the bill’s life that they do not lie recklessly to kids and that they lie only if and when it can be a means to securing needed information. District attorneys argued the bill was filled with ambiguous terminology that would make implementation difficult.
The sponsors and their supporters countered that kids are particularly vulnerable to coercion and likely to tell adult authority figures whatever they think those figures want to hear. Experts who’ve studied exoneration cases testified that all kinds of people, but especially kids, give false confessions because they just want to get out of interrogation rooms and back to their homes. The bill’s backers argued false confessions harm public safety by leaving guilty people running free.
They will restate all of this the next time they get the chance.
“Hell yeah, we’re bringing it back,” Gonzales said of SB22-23.
She, Gonzales-Gutierrez and Bacon are each in solidly blue seats and, barring stunners, all will be back at the Capitol next year.
But just like this year, their success or failure will depend on a lot more than their own side’s resolve.
In the meantime, police are free to deceive in order to extract information or confessions.
“We tried to pass a bill to protect children from the awesome power of the state, and specifically from law enforcement lying to them to get incriminating statements they can use against them in court,” said Tristan Gorman, lobbyist for the Colorado Criminal Defense Bar. “In the intervening years, whether it’s one year or five or ten, I just wonder how many more Lorenzo Montoyas the state of Colorado will create.”
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