Urinating in public no longer carries the same penalty as domestic violence in Denver

Denver’s sentencing reform should make it less likely that low-level crimes could lead to deportation for legal immigrants.
5 min. read
The City and County Building seen from Luis Benitez’s office in the state Outdoor Recreation Industry Oddice. (Kevin J. Beaty/Denverite) denver; colorado; kevinjbeaty; denverite; skyline; cityscape;

Large numbers of low-level offenses, from urinating in public to trespassing, shoplifting and even simple assault, will no longer carry sentences of up to a year in jail in Denver.

The ostensible reason for this sentencing reform -- the first in Denver since 1993 -- is to reduce the likelihood of low-level crimes leading to immigration consequences for legal immigrants. The change also takes many "quality of life" offenses that are frequently committed by homeless people and removes fines and reduces the maximum sentence to 60 days. Those include panhandling, parks curfews, urinating in public, unauthorized camping and "encumbrances" (having lots of stuff on the sidewalk).

The Denver City Council voted unanimously Monday to adopt the new sentencing categories, which preserve the possibility of a year in jail for more serious offenses and reduce sentences for most other municipal offenses. The ordinance also creates a municipal-level hate crimes offense that falls in the most serious category.

Council members said this change shouldn't be the end of the discussion on sentencing reform and that too many people are spending too long in jail for reasons that don't make sense.

What does shoplifting have to do with immigration?

The maximum sentence for a crime is a factor in deportation proceedings. Legal non-citizen residents convicted of a crime of "moral turpitude" with a maximum sentence of 365 days or more can be deported, even if they are sentenced to much less than the maximum. Having one of these offenses on their record can also affect the ability of visa holders to obtain residency.

Reducing the maximum sentence to 364 days instead of 365 gives immigrants a defense against deportation: that the crime was a mere petty offense.

This change probably won't do much to protect unauthorized immigrants who get caught by Immigration and Customs Enforcement. Their presence in the country makes them potentially deportable, regardless of any criminal activity.

It could help legal immigrants -- green card holders and visa holders -- avoid deportation for relatively minor offenses and could preserve their opportunity to apply for residency later.

Most of the debate centered around how to treat repeat domestic violence offenders.

The ordinance creates three categories of offenses. Quality of life offenses that carry sentences of zero to 60 days in jail and no fines; general offenses that carry sentences of zero to 300 days in jail and fines up to $999; and extraordinary risk offenses that still carry penalties of up to 365 days in jail. Extraordinary risk offenses include habitual domestic violence offenders, assault with strangulation, assault with serious bodily harm and bias-motivated offenses.

Categories of municipal offenses and punishments. (City of Denver)

Some advocates for immigrants argued against the "extraordinary risk" category, saying that a 365-day sentence isn't meaningfully harsher than a 364-day sentence, yet it entangles the municipal code and local law enforcement in the immigration system. Some victims may not want to report domestic violence out of fear that the perpetrator -- who may also be someone they depend on financially (or, yes, care about) -- will be deported.

In the first three months of the year, as immigration enforcement has increased, Denver has already seen a reduction in Latinos reporting crimes.

In opposition to that argument, advocates for domestic violence victims argued that the city needs to send a message that certain crimes will be taken seriously.

Scott Levin, mountain states regional director for the Anti-Defamation League supported the addition of bias-motivated crimes to the highest category of municipal offenses.

"Bias-motivated crimes are message crimes," he said. "It's not just targeting a victim. It's targeting an entire community and telling them that people who look like them, who act like them, are not welcome."

In the end and without much debate, the City Council kept the higher sentencing range for the more serious offenses.

But Councilwoman At-large Robin Kniech said she was troubled by the implications.

"The city's approach to criminal justice needs to be self-contained," she said.

"It's not appropriate to use criminal justice to superimpose immigration consequences, whether intentionally or unintentionally. ... To the extent that we keep these systems separate, our community is safer because it encourages trust in that system.

"The integrity of this is about keeping these systems separate," she continued. "Are we or are we not in the business of using our municipal code to layer on immigration consequences?"

And council members said the city needs to keep working on sentencing reform.

According to city officials, there were just 16 arrests for "quality of life" offenses in the last year. People camping or blocking the sidewalk mostly get warnings. But people still end up in jail for reasons related to these low-level offenses, like failure to appear in court and probation violations. Kniech said the city needs to find out what are the "real drivers" of jail nights to address overcrowding.

In a statement, Mayor Michael Hancock thanked the council for their vote.

"This ordinance takes two critical steps," he said.

"One, it helps to keep families together by ensuring low-level offenses, like park curfew, are not a deportation tool. With this ordinance, we will ensure punishment fits the severity of the offense -- not just for our immigrant communities but for all our people, including those experiencing homelessness. Two, for the first time in Denver’s history, the city will be able to act swiftly to prosecute those who commit hate crimes. Together, we are sending a clear message that we will not sacrifice our values or bend to a broken immigration system."

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