Jeff Crank Show, George Brauchler, October 8, 2016

Station: KVOR, 740 AM

Show:     Jeff Crank Show

Guests:  Brauchler


Date:      October 8, 2016


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HOST JEFF CRANK:  Well, listen. Here’s a story that’s not getting enough discussion.  And it’s this criminal justice –quote, unquote – “reform”.  I call it “The Releasing of Violent Criminals Back into Our Communities”, and it’s being done all over the country.  States are doing it because they’re, well, looking at the incarceration rates and how we can reduce budgets and things like that.  And they’re doing that, but there’s a price to be paid.  But the biggest offender, in my mind, is the President of the United States himself, commuting the sentences of over 770 people.  [He] did another big commutation yesterday.  And he claims that these are all nonviolent offenders.  Well, my next guest is someone who knows this all too well.  George Brauchler joins us.  George is the District Attorney from the 18th Judicial District.  George, thanks for joining us. How are you?


CRANK:  Well, for those of you who don’t know, George Brauchler was the prosecutor in the Aurora Theater shooting case and you’re a great prosecutor, first and foremost.  But I wanted to talk to about this issue.  I mean, to me, I – nobody has been really talking about this issue.  And the first big commutation that the president did, and I guess I want to talk in a broad sense on this, not necessarily just the federal stuff but state as well.  The first commutation the President did, you know, he says, “Oh, these people are nonviolent!”  And I went through — actually had my son go through for me and in look up the number of cases where they also had a firearms charge along with their drug charge.  And you know, it was like 70% of them had had a firearms charge!  Here’s the President trying to take away Second Amendment rights from law-abiding citizens yet he’s letting people go who had a gun in commission of a crime or something like that.  But the bigger point here, I think,  is that these folks are – this is what we got them on.  This is what the evidence we had to get them on, but did they come in bigger crimes — murder and things like that – and we just didn’t have the evidence?  Your thoughts on all of this?

BRAUCHLER:  Yeah, I, um — I would say that there’s a couple different aspects of why you don’t hear more about this.  One is that the side that is in favor of decriminalization and de-incarceration for felons has a very good job of injecting race into this discussion, and to try to keep people back from, I think, embracing the idea of justice and punishment over pure rehabilitation by suggesting that this is a race-based criminal justice system.  And I find, in over 20 years of doing this, it is anything but that.  I think the other part of this though, is you have this interesting pairing of people on the left with folks like the Koch brothers who are also invested in the idea of taking a new look at the criminal justice system to the extent of making it harder for people to be incarcerated and making it harder to keep those incarcerated in there for a long time.  Look, the bottom line, I think, nationally — and people sort of wrap their minds around the idea that all must be sending a bunch of first-time drug possessors to prison—Jeff, you can’t go to prison just for possessing usable amounts of drugs.  That doesn’t mean it’s not possible on the law books.  It’s not possible in the courtroom. You would have to do heroin in the court room during your sentencing for possessing heroin to even have a judge consider locking you up in our state prison prisons.  Federal systems are a little bit different, but keep in mind that out of, maybe, 1.4 million people incarcerated at the state and federal level, only about 200,000 of them are federal, and only half of them are there for some drug charge.  And as you pointed out from your son’s research, they’re not there for simply straight drug possession.  Many of these people have developed criminal histories, and what we don’t know by the President’s granting of this kind of clemency, is what we don’t know, is what were the charges plea-bargained from?  And what were the other factors in the case that got them to prison.   I mean, it’s very difficult to get to prison in this country.  It’s a lifetime achievement award for criminality.

CRANK:  Right.  Well, and here is the other issue that I think people are our sort of forgetting in all of this,  is that this does have — already is, I think — having an effect on crime rates across the country.  For the first time, the FBI crime report showed an increase in the number of murders.  You know, it has been declining for like 20 years.  Is this guy – Are we going to look back on this time period, in three or four or five years, and say, “What in the world were we thinking?”

BRAUCHLER:  Yes.  I don’t have a lot of doubts about that.   Listen, and you’ve seen this a lot, too, in different areas, but criminal justice may be the most pronounced.  We have a pendulum that swings, back and forth.  And what people, I think, have blissfully forgotten — or maybe they weren’t around to remember this– the crime rates in the 70s and 80s were skyrocketing – violent crime-wise – [including in] Denver, and across the country.  And so legislatures, all around, took steps to say, “You know what?  We’re tired of the disparities in sentencing from weak judges.  We’re tired of people committing crimes and staying on our streets with innocent families.”  And so they passed laws that provided mandatory minimum prison sentences for some of the worst offenders.  Not every charge.  Not every offender.  Some of the worst offenders.  And even though we saw the incarceration rate, I think, spike in the 80s — and it has remained relatively consistent since — we have seen a downturn in violent crime.  Frankly, crime across the board [is down] over the last two decades that has put us in this fat and happy position where we can think we’re going to go ahead and make some tweaks to the law because we’ve figured out how to fix the human condition.  And we haven’t.  And I think you’re right.  I think we’re going to see crime rate begin to spike again.  We’re going to make more victims.  And then five, ten, fifteen years from now, we’ll look back and go, “Good grief!  Why did we ever stop doing what worked?”

CRANK:  Well, and it seems though, you know, the President now has a total 774 offenders who have had their sentences cut by Obama.  And that’s more than the previous 11 presidents combined.  And I just – you know, you can’t do those sorts of things without there being a price to pay on the back end for that.  And it just seems like, yes, maybe, — as you mentioned — these folks have been convicted of, you know, intent to distribute methamphetamine or possession of controlled substance, or whatever.  But what did they really do?  You know, right?  What did we plea that plea down to that with?  And that’s really the question.  It—are we doing this at the state level, as well?   I mean, do have a governor and others that are doing this at the state-level?

BRAUCHLER:  Yeah, so it’s a great question.  It’s interesting because as much as I may disagree with the President’s decision to take steps, you would at least have to give him some credit for acting on his beliefs and what he claims.  In our state, we don’t have that problem with our executive.

CRANK:  [Laughs]

BRAUCHLER:  So, to give an example, the Governor in our state has a pretty robust and un-appealable pardon power.  He also has the power to grant clemency.  Now, through the first term of Governor Hickenlooper’s time in the Gold Dome there, he didn’t even have a standing clemency or Pardon Board, which other governors before him all had.  He let all the appointments expire, never considered any of them.  He recently stood one up at the last — I think, just after being reelected — but to this day, has never granted — to my knowledge– a single pardon, clemency, or anything, with one exception.  And you’ll remember it.  It’s a guy named Nathan Dunlap.

CRANK:  Right.

BRAUCHLER:  The only person he has used his executive authority to spare from his just reward through the criminal justice system is one of the most notorious mass murderers in our state’s history.  But other than that, the state of Colorado has actually been very proactive in changing its criminal laws regarding narcotics and drugs in order to provide a more, I think, forgiving criminal justice environment for them.  And I’ll give you an example.  Like, in the past, possession of usable amounts of cocaine could be a fourth class felony conviction.  Even though it was never mandatory prison, it could’ve been punished by 2 to 6 years in the Department of Corrections.  And if you didn’t get that, that felony conviction sticks with you forever.  Well, a handful of years ago, the legislature got together in a bipartisan way and changed our drug laws to create drug felonies.  And so now, if someone were to be convicted of that drug felony, and then were to be able to successfully complete sentencing — including things like going to the drug treatment therapy, all the rehabilitation– they could come back to the court and ask the court to convert that felony to a misdemeanor.  And I’ll be honest, that doesn’t bug me too much.  I mean, I don’t want to lock up our addicts.  I don’t want to take our criminal justice dollars and lock up addicts. I want the distributor.  I want the violent criminals.  That’s who should be in our prisons. So we made that change a few years ago and frankly I think that’s probably a step in the right direction.  The part that really concerns me, Jeff, is that we see at the legislative level now –even in a bipartisan way –an effort to take away mandatory minimum prison for some of our most violent criminals.  In fac, there’s been discussion by some on the criminal defense bar, depending upon how the election goes in November, to try to run a bill that would take away all mandatory minimum prison sentences for every crime except murder.  I think that would be a huge mistake and put Coloradans at risk.

CRANK:  Well, it certainly will.  Tough prosecutor, George Brauchler, is my guest.  We’ve got him for just a couple of more minutes.  And so, I guess probably my final question to you is, it seems to me that the President has accelerated this and, you know, we’re going to talk about these last few days of his term and what he’s going to do.  And I think that the 774 number is going to look pretty small compared what he’s going to do.  I mean, do we do we suspect that perhaps John Hickenlooper might do a similar thing?  Is – did he constitute his board and start doing these things in his second term so that he can do the same thing?  And by the way, it’s one of the most disrespectful things to the process, is for a president or governor to do that as they walk out the door.

BRAUCHLER:  I agree with you.  Not just disrespectful, but there is a gutlessness to it, right?  I mean, we look for our elected representatives to be leaders.  And sometimes being a leader means taking the position that puts you at odds with your supporters or other folks in the state.  And I fully expect the governor to make a bunch of decisions on his way out the door, whether that’s because he becomes the Secretary of Breweries or whatever he gets appointed to if Hillary wins, or because it’s the end of his term.  And one of those things – if you’re asking me as a betting man — I would bet that he not only commutes the sentence of Nathan Dunlap to life in prison, but I think he probably takes a shot at two remaining cases that are in our office right now, going to the post-conviction appellate process.  And those are the witness murderers, Sir Mario Owens and Robert Ray.  I expect him to wipe those death penalty sentences out on his way out the door because there is no more political price for him to pay.  It would be with impunity.  It would engender support with those on the farthest left who he really encourages him to like him.  I expect that to happen.  And if it was going to happen, and the guy had guts, he would have done it already.

CRANK:  Yeah, well –.

BRAUCHLER:  But granting that reprieve – and again, it sticks in my craw.  Granting that reprieve was a clear signal:  “I don’t want people to not like me.”

CRANK:  Yeah, it’s  — and it was cowardice.  It’s cowardice on the part of the Governor to have done the Nathan Dunlap thing.  But cowardice here, too, as well.  George Brauchler, thank you so much for all you do!  [I] appreciate it.  [I] hope you will come back and join us again.  George Brauchler, the great, great District Attorney from Judicial District 18, thanks for joining us.

BRAUCHLER:  Thanks, Jeff […]  Talk to you soon!