April 4, 2019 — Felony filings have trended solidly up for at least five years in the 7th Judicial District — and in most of the state. Resources, however, have not kept pace.
“We’ve got to look at the system as a whole,” District Attorney Dan Hotsenpiller said.
Adding resources on one end — for instance, more police officers — would be beneficial, but not enough if there isn’t a systemic approach. More officers could bring more arrests and cases, but there also needs to be enough prosecutors to handle the caseload, more judges to preside and more courtrooms and chambers for them.
Determining the number of judges needed is done in accordance with statutory formulae. It falls to counties to provide courthouse space as mandated — but not funded — by the state.
On top of it all, said Hotsenpiller, are new legislative initiatives that do not fully consider how enactment would affect rural, cash-strapped courts.
“We’re growing. Our crime is increasing, at least in case numbers. It’s becoming more complicated. Cases are harder,” Hotsenpiller said.
“We need more officers, but then we’ve got to look at the system as a whole. Is there a capacity to prosecute (increasing cases)? You have to look further. Is there a courtroom for them to be tried in? Is there a judge to preside over these new proceedings?”
Recent caseload data highlights the concern.
In Montrose, prosecutors filed 528 felony cases last year, compared with 454 in 2017. Delta County also saw marked increases, climbing from 270 adult felony filings in 2017, to 398 in 2018.
The District Attorney’s Office also prosecutes adult misdemeanors, juvenile felony and misdemeanors, and traffic cases in six counties. (Ouray, San Miguel, Hinsdale and Gunnison, in addition to Montrose and Delta counties.)
“We’re already at a point of unacceptable congestion. We don’t have the capacity now,” Hotsenpiller said.
He said he struggles to allocate staffing in his office to meet all of its responsibilities. Since the time he was appointed in 2011 (he since stood for election), Hotsenpiller has brought in special deputy prosecutors from other jurisdictions or the Colorado Attorney General Office’s to pitch in on certain cases. In late March, there were three special prosecutors.
“That just means on one specific case, we’re able to get help from one judicial district or the attorney general. It’s a barometer that we now don’t have the capacity to deal with what we are responsible for. We have to get help,” Hotsenpiller said.
“So if we’re going to add a lot of officers — and we should — we need to think about what’s going to happen.”
County costs and beyond
District attorneys’ offices are primarily funded by counties within the judicial districts they serve. As well, they can seek grants and certain other funding.
Grant funding comes with restrictions on how it may be spent and some federal grant requirements will no longer allow the money to be used to pay for a prosecutor, said Hotsenpiller, who also said his sex crimes prosecutor position is heavily grant-funded.
The state provides 80 percent of each elected DA’s individual salary and, beginning in Fiscal Year 2015/16, the Legislature provided $350,000 per year to the Colorado District Attorney’s Council to help train prosecutors statewide.
According to the State Court Administrator’s budget document, there is no other direct funding provided for prosecutors and staff members through Colorado general fund dollars. The state covers only certain mandated costs for prosecution, but because DAs are elected officials, counties, not the Legislature, set the rest of their budgets.
For 2019, Montrose County provided nearly $939,000 to the DA’s Office, about 1.5 percent more than in 2018. Other counties in the district also help fund the office, as well as meet state-ordained courtroom requirements.
Montrose County built the Justice Center about 20 years ago, with flex space that has since been used for remodels and additional courtrooms and hearing rooms. It most recently had to build an annex into which to move the DA and child support services, to free up more space in the Justice Center for two more courtrooms and one hearing room.
“That’s quite an issue when you look at the loading of the court system and the judges, the loads that they are carrying and the loads the DA is carrying,” Montrose County Manager Ken Norris said.
“That whole system appears to be overloaded.”
The state of Colorado recognizes that judicial overcrowding is a problem.
“A dramatic increase in felony criminal cases in the past five years is the greatest cause of the courts’ overcrowding,” the Office of the State Court Administrator said in a fact sheet advocating for more judgeships. These types of cases are more time-consuming than other types and the rise in criminal cases pulls resources away from the courts’ other work.
The Senate has approved a bill creating 15 new district judge positions — but none of these are for the 7th Judicial District. The State Court Administrator’s data showed 10 districts as having even greater need, such as the 10th Judicial District (Pueblo), where caseload has grown by 18 percent in the past five years, and which last had a new judge in 2009.
“Our numbers, as bad as they are, don’t justify to the Legislature an additional district court judge, which means it’s worse elsewhere. We’re not at the bottom of the list; we’re not at the top,” Hotsenpiller said.
“… Our felonies are increasing over at least a five-year trend. We are not unique. That is not a 7th Judicial District phenomenon. That is a state of Colorado phenomenon. We are actually right in the middle of average for the entire state. The causes of this are not local; they’re not unique to our area.”
It may not be possible to pinpoint what is driving the climb in felonies. The state population is growing, but not at a rate comparable to the rise in felonies, Hotsenpiller said. More policing of course brings more arrests, and drugs remain a significant driver of crime, but beyond that, there’s no solid explanation, he said.
“And I’ve not heard one from anybody in Colorado.”
Counties in the judicial district are doing what they can to alleviate judicial system crowding.
Delta County is the worst for courtroom space in the district, Hotsenpiller said, but is constructing a new building to which some county government offices now in the courthouse can be moved.
That’s an expense for Delta County.
“We expect counties to bear a significant portion of the cost of criminal justice. The counties have to build the courthouses and courtrooms,” the DA said.
Neither Delta nor Montrose County have a place to put a new judge, even if a new judgeship were to be created.
“This is a real problem,” Hotsenpiller said. Even having retired judges come preside over a trial is an issue, because there is no extra space for them.
Assistant District Attorney Barbara Sanford handles the felony filings in Delta County.
“A lot of it is methamphetamine-driven, drug offenses, and then the property crime that goes along with it,” she said. “That’s what I see over and over.”
Many of the defendants picking up new felonies are already on a form of court supervision from previous cases, she said.
Hotsenpiller previously said that in a one-week snapshot of data from last September, 71 percent of people who had a new felony lodged against them were already on probation or out on bond in other cases. The snapshot data is not sufficient to indicate a trend.
Not only is there insufficient courtroom space for judges, but there also isn’t really room for additional prosecutors. “I don’t know where we would put another attorney,” Hotsenpiller said.
When police and prosecutors are overloaded, it affects the way cases are prioritized — financial or property crimes might get less investigatory attention than crimes against persons, for instance. That’s one more way too few resources, and a lack of a system-wide look, affect the delivery of justice, Hotsenpiller said.
“That doesn’t mean we don’t understand the impact (on the victim),” he said.
A resource shortage further affects the services and supervision that can be provided to those under court supervision like probation or bond, he said.
No budgetary boost on horizon
The State Court Administrator’s budget document acknowledges DAs have less flexibility in expenditures of mandated costs, because they do not have state line item funding they can transfer to cover inaccurate projections.
Their budgets also reflect the economic realities of counties and, although the CDAC has to estimate the statewide need for mandated costs and allocating them in the state’s 22 judicial districts, “accurately projecting the nature and extent of future criminal activity … is inherently problematic.” The nature of given cases, not just their numbers, drive prosecution costs.
The State Court Administrator’s Office budgetary request for the next fiscal year is $2.6 million for the limited mandated cost funding.
Hotsenpiller isn’t expecting the Legislature to loosen the state’s pursestrings for prosecutors’ offices anytime soon, although he sees places where it should. And, as lean as things are for his office, there are other needs that should come first, he said.
“The state mandates victim services. The state mandates victim services at a very specific level — literally to the number of letters we have to send a victim,” Hotsenpiller said. The state also makes sure victim services are being provided in accordance with the law.
“The state tells us what to do; the state monitors what we do, but they make the counties pay for it and there’s not enough dollars to fund victim services. This has a profound effect on local victim services,” he said.
“We crowd out the funding that would be available for local agencies to come up with creative, new local initiatives to help victims.”
Norris said he would like to one day see more state funding, too.
“When they give us mandates, they should really give us the funding with which to carry out the mandate. The unfunded mandates are adverse to the citizens of the county,” he said.
“We have to try to find money wherever we can.”