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Colorado is about to wipe 100,000 criminal convictions from the public record

More than 100,000 Colorado criminal convictions are set to be wiped from the public record this summer under the state’s new Clean Slate Act. The sweeping legislation, passed in 2022, set up an automatic record-sealing process for certain lower-level crimes, removing the convictions from most background checks so that years-old crimes don’t perpetually block people from housing, jobs or other opportunities.(Dreamstime/TNS)

The way Jeffery Kytle tells it, he came to Colorado for vacation and left on probation.

Twenty-one years ago, the Iowa resident bolted out the back of a Keystone condo when police busted in the front.

He was in town for a ski vacation, to blow his buddy’s recent $20,000 casino jackpot, the now-66-year-old said this month. But there were drugs in their rented room — about two ounces of methamphetamine — and supplies that made the police think they were dealing.

Kytle didn’t make it far. He was arrested on a slew of charges and eventually pleaded guilty to a single count of possession of a controlled substance, at the time a low-level felony. He served four years of probation. Then he swore off Colorado for good.

“They thought we were some big kingpins, but we were just some bums who won some money and were trying to spend it up in Colorado,” he said with a laugh. “If I have to go to Colorado again, I’m going around it.”

Kytle’s 2003 arrest was one of more than 100,000 Colorado criminal convictions set to be wiped from the public record this summer under the state’s new Clean Slate Act. The sweeping legislation, passed in 2022, set up an automatic record-sealing process for certain lower-level crimes, removing the convictions from most background checks so that years-old crimes don’t perpetually block people from housing, jobs or other opportunities.

But in Kytle’s case, the Fifth Judicial District Attorney’s Office objected to the sealing on the grounds he was convicted of another crime in Iowa in 2006, one of a handful of reasons for which prosecutors can object. His Colorado conviction won’t be wiped from his public record unless he challenges the district attorney’s objection in court.

“It’d be nice to get it off my record,” Kytle said. “I’m only going to live another 10 years. I don’t know why they’re objecting.”

Across the state, district attorneys by early May had objected to 4,889 of 109,098 criminal cases eligible for automatic sealing — about 4.5%, according to a point-in-time list of eligible cases and objections provided by the State Court Administrator’s Office. That does not include any cases sealed before the list was generated on May 6.

The rate of prosecutors’ objections varies widely by jurisdiction — from fewer than 1% to as high as 31% — as different district attorneys take varying approaches to sorting through the cases the State Court Administrator’s Office deemed eligible for automatic sealing, a Denver Post review of the list found.

That means where people committed a crime factors into whether or not their public criminal records will now be sealed, raising concern among some advocates about whether the law is being applied fairly. The data also shows racial disparities in the process, with people of color making up a disproportionate share of DAs’ objections.

“That lack of uniformity makes us want to dig deeper,” said Abbey Moffitt, co-founder and lead criminal defense attorney for Expunge Colorado, a nonprofit that supported the Clean Slate Act. She and other advocates say they plan to audit prosecutors’ objections to ensure the district attorneys are following the rules.

“This is the first time this is happening in Colorado, so we want to understand why those objections are being made and we absolutely want to make sure all the objections are within the bounds of the state law,” said Kyle Piccola, vice president of communications and advocacy at nonprofit Healthier Colorado, a member of the coalition that pushed for the new law.

But to others, the variations across different parts of Colorado are to be expected and are no cause for alarm.

“The El Paso district attorney probably has a very different approach to crime than the Denver district attorney or the Jefferson County district attorney,” said former state representative Colin Larson, a Jefferson County Republican who sponsored the Clean Slate Act. “And that’s OK. That’s the system we have in this country and state, that local political entities elect their own district attorneys and those district attorneys run and make it very clear to the people what their criminal philosophy is.”

Objections vary across counties

The Clean Slate Act is one of several new Colorado laws that prioritize individuals’ privacy over public transparency in the criminal justice system, part of a policy shift that’s gained popularity in the state over the last half-decade, said Jeffrey Roberts, executive director of the Colorado Freedom of Information Coalition.

The law tasked the State Court Administrator’s Office with sorting through Colorado’s old criminal cases to see which cases were eligible to be sealed under the act, then sending that list of cases to the state’s 22 district attorney’s offices so prosecutors could review and object to particular convictions, stopping those records from being made secret.

Under the law, certain convictions are eligible to be automatically sealed — that is, sealed without requiring the defendant to take any action — if several years have passed and the defendant has not been convicted of another crime. For petty offenses or misdemeanors, seven years must have passed. For felonies, defendants must go a decade without a new conviction.

Not all crimes are eligible: more serious felonies like murder cannot be wiped from the public record, and many specific charges are exempted from sealing, including DUI, some sex crimes, child abuse and felony animal abuse.

If a district attorney objects to the automatic sealing, the process is halted unless a defendant challenges that objection in court. Prosecutors can object for a handful of specific reasons: if the defendant has been convicted of a crime since the first conviction or has a pending criminal case, if the case isn’t eligible to be sealed, if the defendant previously agreed it would not be sealed, or if there’s a public interest in keeping the record public.

But the first list of eligible cases compiled by the State Court Administrator’s Office under the Clean Slate Act included many cases that were not actually eligible to be sealed, prosecutors say.

In southeastern Colorado, 16th Judicial District Attorney Jim Bullock reviewed every case deemed eligible in Otero, Bent and Crowley counties and objected to a full 31% — 307 of 993 cases on the list, and the highest rate of objections in the state.

“Obviously we think that the list that was sent over was not accurate, based upon our review of those cases,” Bullock said. “And to not address those, I think, is an error on our part; we’re not doing our due diligence.”

Although the law requires the State Court Administrator’s Office to track the reasons for objections “to the extent possible,” the office told The Denver Post and legislators that it cannot do so. The only way to see the reason for an objection is to look at a copy of the motion that prosecutors filed in court for each individual case.

The Post paid $50 in fees to randomly review 25 objections filed across several counties and found prosecutors in half of those cases objected on the grounds the convictions were ineligible to be sealed under current law — claiming that the cases shouldn’t have been on the list to begin with. The next most common objection, in nine cases, was that the defendant had been subsequently convicted of another crime. In one case, prosecutors cited a defendant’s immigration status as the reason for the objection.

Bullock said his office only objected when the case was plainly ineligible to be sealed under the law.

“We’re not picking and choosing, we’re looking at every case on the list, and we’re not looking at any of the facts, we’re looking at the types of cases filed and if there is a statutory grounds that the case won’t be sealed, then we are filing an objection,” he said.

Other offices also found a large portion of ineligible cases: in the Fifth Judicial District, which includes Summit, Eagle, Lake and Clear Creek counties, prosecutors objected to 18% of cases on the May list, while prosecutors for Teller and El Paso counties objected to about 14% of cases.

“There was a lot of frustration with the list we were getting from the courts,” said Zach McCabe, assistant district attorney in Denver. “There were things that were on there that shouldn’t have been.”

In Denver, prosecutors objected to about 7% of eligible cases. McCabe said the office did not review every one of the nearly 12,000 cases eligible for automatic sealing in Denver, but rather focused on convictions related to gun violence, car thefts, forgeries and possession of controlled substances if the defendants had subsequent convictions.

“The assumption is the possession cases are pled down from distribution-type cases,” he said, adding that he did an in-depth review of each case in which the office filed an objection, but only took a “cursory look at best” at other cases.

Prosecutors in the 17th Judicial District, which covers Adams and Broomfield counties, also did not review every case flagged by the State Court Administrator’s Office. After receiving a list of nearly 11,000 cases deemed eligible for sealing, prosecutors narrowed the list only to cases in which there was a subsequent conviction or a crime with a victim protected by the Victim Rights Act, spokesman Chris Hopper said.

“That analysis reduced the original list significantly,” he said in a statement. “We then reviewed the smaller list further and objected to cases that we felt were unworthy of auto-sealing under this new law.”

The office ultimately objected to fewer than 1% of eligible cases in Adams and Broomfield counties — filing just 10 objections out of 10,896 cases, according to the May data. In Jefferson and Gilpin counties, by contrast, prosecutors received more than 15,000 cases and objected to more than 600 — about 4%, the data shows.

“The judicial branch, when they are making that list, they are looking at the law and what is eligible, so theoretically you should be able to trust that list,” said Moffitt, of Expunge Colorado. “So that is what I’m interested in — has judicial made this list and some judicial districts are interpreting it, and they’ve got the eligibility wrong? That could be problematic, or an interpretation issue we’ve got to dive into.”

A spokeswoman for the State Court Administrator’s Office, Suzanne Karrer, said the agency “erred on the side of caution” when it compiled the list of eligible cases and expected that some cases would need to be reevaluated despite being on the list.

One of the 10 objections in the 17th Judicial District was for a man convicted of misdemeanor child abuse in 2001. Now living in Texas, the 53-year-old man told The Post he was charged for living in a van with his young son while he was addicted to drugs. He spoke on condition of anonymity to protect his privacy and because his son isn’t aware of his past.

“(The detective) said, ‘Drugs and kids don’t mix,’ which I 100% agree with now,” he said, adding he has been sober since just after his 2001 arrest. “(My son) doesn’t know that guy from before 2001. He only knows the dad he has now.”

In a motion filed with the court, prosecutors marked that they objected to sealing the man’s case because it was a felony conviction — it was not — and there was a public interest in keeping his criminal record public. But when asked about the objection, Hopper said prosecutors objected because child abuse convictions are not eligible to be sealed, and suggested a prosecutor may have checked the wrong box.

Going forward, the State Court Administrator’s Office will compile and send out a list of cases for auto-sealing on a quarterly basis. McCabe, of the Denver District Attorney’s Office, said he is optimistic that the quarterly lists, which should include fewer cases, will be less onerous to review.

He noted that law enforcement and prosecutors can still see sealed criminal cases, and that the convictions stand even when hidden from public view.

Felonies lead objections, data shows racial disparities

Almost all of the convictions eligible to be sealed on the May list are misdemeanors or petty offenses. Only 2% of the eligible cases are felony convictions, and district attorneys most frequently objected to sealing those convictions, the data shows.

Prosecutors objected to 10% of felony cases eligible for sealing, 6% of eligible misdemeanors and 1% of petty offenses, The Post’s review of the list found. The most common conviction objected to was driving under suspension, followed by domestic violence convictions and drug convictions.

Larson, the bill sponsor, said the objections show the new law is working as it was intended.

“Any systemwide policy like this, when you paint with this broad a brush, obviously there are going to be exceptions to every rule,” Larson said. “If you’d called me and said no one is objecting to any cases, I’d be like, ‘I don’t think that policy is working right.’ ”

The data shows the objections are racially skewed. While Black defendants make up 4% of all eligible cases on the May list, they account for 7% of objections. Hispanic defendants, who are likely undercounted, make up about 8% of eligible cases, but 12% of objections. White defendants make up 81% of cases, but account for 78% of objections.

Piccola, with Healthier Colorado, said advocates specifically pushed to require the courts to track defendants’ races in the Clean Slate Act sealings so that any racial disparities could be corrected.

“We know that in our criminal justice system, people of color are by and large impacted at greater rates than white people,” he said. “One of the things we are trying to turn around in this auto-sealing process is exactly that. So if we start to see those racial disparities continuing, then we definitely need to address it, call that out, and work with judicial districts and counties to understand why that is happening. Because it shouldn’t be.”

The Clean Slate Act may be just an early step for the automatic sealing of criminal records in Colorado. A bill that passed the legislature this year would expand auto-sealing to cases with completed deferred judgments and diversions, and cases in which the defendant was acquitted.

The lawmakers’ goal of helping people convicted of crimes avoid unjust long-term consequences must be balanced with the need for public scrutiny, said Roberts, with the Colorado Freedom of Information Coalition. The automatic sealings will wipe convictions from the public records of people running for office, he noted, and make it all but impossible for voters to accurately scrutinize a candidate’s past criminal record.

“It is a policy choice that Colorado has made … weighing the benefits to the individuals affected by having crimes or even just arrests on their records, versus the ability of people and journalists to investigate,” he said. “So it’s a balance.”

Defendants should be notified when district attorneys object to sealing under the Clean Slate Act, though those notifications may rely on outdated contact information. Three people contacted by The Post about the objections that DAs filed on their cases said they had not received notifications.

By June 11, people will be able to check on the state court’s website to see whether their old criminal conviction has been sealed. Already, the more than 100,000 cases that will be auto-sealed is a significant achievement for the state, Piccola said.

“That’s a massive benefit to lots of Coloradans,” he said. “(Those convictions are) no longer going to be a barrier for employment, housing, to volunteering at their kids’ schools, to access and participation in their communities.”


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