Dan Caplis Show, George Brauchler, May 1, 2014

Station:   KNUS, 710 AM

Show:      Dan Caplis Show

Guests:    Brauchler

Link:       http://dancaplis.podbean.com/

Date:       May 1, 2014


Click Here for Audio

HOST DAN CAPLIS:  George Brauchler, kind enough to join us.  Mitch Morrisey (Denver DA) was on a couple of minutes ago talking about SB`14-218 which would seal a lot of marijuana convictions, now legal after Amendment 64.  What’s your positions on that?

ARAPAHOE COUNTY DISTRICT ATTORNEY, GEORGE BRAUCHLER:  The bill went through some substantial changes largely because, i think, of the opposition of the CO District Attorney Council, Tom Raines.  I showed up to testify in opposition.  Mitch had been there to talk about the hit and run bill, which was right before that, but he brought out Chief Deputy Joe Morales, a fantastic prosecutor.  And i think those efforts combined got the committee to make some significant revisions to it.  And it still only barely passed, 3-2.  So, the first form bill would have sought to make sealable — automatically sealable without notice to the DA, without the ability to object, without any balancing by the court,  any offense that was prior— previously a crime under a statute called 18-18406 that is now legal because of Amendment 64.  It was so broadly drafted initially that it included felonies.  It included felonies for different types of cultivation, possession of concentrate — hash.  And you know, the problem with was 1) this is bad policy in my opinion, because we just don’t do expo facto.  Now, we normally associate that with defendants, and I get it.  But the reason it’s not fair, it’s not fair to communities is, prosecutors make decisions about plea bargains based on how the law is now and what we believe the implications of the conviction will be now.  So you have guys out that may have been been out there being 50-pound marijuana movers — distributors —  cultivators beyond what the Constitution would tolerate today, and they were given plea bargains.  They might have been given a plea bargain from an F3 to F4, and under the bill the way it was initially offered, it would have made that automatically sealable.  And this is a cool part, Dan.  They had drafted it in such a way that no employer, including a police department, could even inquire as to whether someone had a prior conviction for those things.

CAPLIS:  Crazy!

BRAUCHLER:  So they changed it.  They amended it heavily.  And I really respect Mike Johnston for his role in trying to push this through — Democratic Senator from Denver, but he really did carry a lot of the water on this —and that was to get it amended so that now it only applies to petty offense marijuana, useable amounts.  And then there’s one misdemeanor that existed for a couple years before 64, that made it a misdemeanor to possess six plants with out, you know, the proper regulation.  And so those are sealable.  But the extra thing we got  put in there was, the DA’s office gets notice, we get the ability to go to court and object, and the court has to take in —it’s like a balancing test, a weighing, before they do it.  So, ideally, we wouldn’t do anything like this, we wouldn’t go in the past and say, “Hey, your criminal conduct that you knew was criminal was sealable from the public forever,”  but this is about as watered down as you can get.

CAPLIS:  Hmm.  The honorable George Brauchler, our guest.  Now, George, is there a District Attorney review even for the petty offenses that will now be sealable, or is that be more just administrative, at that point?

BRAUCHLER:  No, my understanding is that the language was amended, — and i left after my testimony — but my understanding is that no, we’ll also be provided with the ability to appear and object on those.

CAPLIS:  Fantastic!  And what’s kind of stunning to me is, you make the point that even at the end of the day, with your powerful testimony, that from the Denver DA’s office, etc., it was still just a 3-2 vote.  You still had 2 members of that Senate Judiciary Committee who would have sealed up all of these felonies?

BRAUCHLER:  No, you — well, the two that opposed it were opposed to its — I mean, those two votes were two votes that said, “No, we shouldn’t be looking in the rearview mirror to seal any criminal conduct.”  So, they want it, they wanted it – that was a “too strong for us”.  There were three that I think the only reason it got out of committee was because they were able to minimize the impact of it on most of the major convictions.  And I think that was probably the initial intention of the drafters, but as you might guess, legislators aren’t experts on the impact of the language of the laws they pass. We see that all the time.  So, I think they came around.  But the other two would have said “no” regardless.  So, they were actually stronger votes for us.

Which is another good reason not to be shoving a bill like this through at the very end of the session.  But my guess is — and this is me speaking, not our special guest — my guess is that was part of the plan of the people behind this bill, not necessarily the sponsors, but those who wanted to get it in at the last minute so there wouldn’t be the opportunity to shine the light on it.  But I’m really glad that you rallied, Denver DA’s office rallied, and at least made this a lot better than it would have been.  Oh, I think Ton Raines from the District Attorney’s Council deserves a lot of credit.  And, of course, you know the —Mitch and his office carry a great deal of weight.  It was good, and I really appreciate how thoughtful and responsive the committee was, because they could have poo-pooed it and just driven on and put it out there. But they didn’t.  But you’re right — I think you’re right, Dan.  The goal of the people that pushed this legislation to these legislators — and it was Vicki Marble and Jesse Ulibarri who carried it — I think they had every intention of being able to seal up all of the felonies.  In fact, conversations with Rob Cory outside the judiciary committee room made that clear to me, is that their goal was to wipe away the entire past, if it had anything to do with marijuana.  And that just doesn’t make any sense.  I mean, listen, this thing creates exceptions.  this is what is weird, Dan — you and I can appreciate this.  It doesn’t prevent the Bar Association from looking into past convictions, even if they were sealed or asking questions.  But police departments can’t.  Department of Human Services can’t.  I mean, who is licensing our daycares?  The Division of Human Services.  And they can’t ask someone, “By the way, did you have prior convictions for drugs?”  It’s like, oh, you’re not allowed to ask that.  As a parent, I’d like to know if my kid is going to a daycare where someone had 50 possession of marijuana convictions.  I mean, if they’re lighting up every day, I get to know that.  Um, but —.

CAPLIS:  And what’s stunning to me, […] is if you don’t step up, the DA’s Council, Mitch Morrisey, etc., this thing becomes law.  That becomes the law in Colorado. And that these sponsors — and I’ll assume they didn’t realize what they were sponsoring — but that these sponsors would have been used that way by the marijuana industry, I think is — on top of everything else — another message to people about who’s wielding power down there.  I just am glad you stepped up.

BRAUCHLER: Oh, I was happy to be part of it.  […] One of the things, or the arguments that was advanced by the pro-pot lobby was, “Well, this is just further codifying the will of the voters from Amendment 64.

CAPLIS:  Yeah, yeah.  Right.  Right. Put it to a vote.

BRAUCHLER:  And you and I know, had they amended the Constitution to say, “And, oh, by the way, all your past criminal conduct is absolved of you, you know, for marijuana,” I don’t think it comes out the same way.  So, you’re going to see this, I think — over the next couple of sessions, you’re going to see a real push to argue that Amendment 64 means a lot more than the language of Amendment 64.

CAPLIS:  I think you are right on target.  And one thing I’d like to do sometime — I know you’re real busy — is just get together and maybe carve out a half an hour or an hour, and just talk on air about what you have seen the impact of Amendment 64 be in your jurisdiction.  I read some of your comments in a really well done national piece, and I think it would be very helpful to everybody to just get together and have that conversation.  Because you’re in a position to see a lot that the rest of us don’t get to see.

BRAUCHLER:  Well, I’d love to do that, Dan.  I mean, listen, you and I are big fans of the will of the people, and even if we disagree we recognize it’s the law.  But I don’t think saying, “Hey, this is now the will of the people” means that it is all roses.  I think people need to understand and appreciate what this change in the Constitution means to the street cop, to the community as a whole, to our kids.  And to suggest that there’s been absolutely no negative impact from this change in the law is ignorant.  It’s just not the case.

CAPLIS:  Hmm, well said.  I appreciate your time.  thank you, George.

[…] And very interesting to have both of those two gentlemen back to back — Mitch Morrisey a Democrat, George Brauchler a Republican — because as you look out across the political landscape, what you see with those two guys in my opinion, is two very smart, very talented people who have a real skill set.  You know?  They have a lot of different abilities, and they are very articulate.  And I would be shocked if both of our last two guests were not major state wide players, you know, for a long time here in Colorado, and I’m glad to see them acting in concert on this issue.  Wow.