By Dave Kopel
October 9, 1994, Sunday, Denver Post, Perspective Section, p. E-05
What Colorado really needs is a state treasurer who will stop the genocide in Rwanda, and a governor who will increase the snowfall at all the ski resorts! Absurd? No more absurd than the current battle for attorney general, in which Democrat Dick Freese and incumbent Republican Gale Norton are slugging it out to see who can out-macho the other in being tough on crime.
The tough-on-crime talk follows a decades-old tradition in Colorado politics of attorney general candidates running on the crime issue. In 1990, the key item of challenger Gale Norton's advertising campaign was a tenuous accusation that incumbent Duane Woodard's alleged legal negligence caused the release on parole of a convict who later perpetrated a heinous murder. If Norton's 1990 campaign made her look like Rooster Cogburn, the 1994 Freese campaign looks like Dirty Harry.
The sad thing about all this crime rhetoric is that the Attorney General's Office doesn't have much to do with controlling violent crime. The attorney general essentially runs a law firm of about 160 lawyers which handles the legal business for the state of Colorado. Some of the legal staff does crime-related work, but not on anything that is going to change the violent crime rate much.
First, the office has an Appellate Section, which handles almost all of the criminal appeals in Colorado. This mostly involves knocking down the frivolous and semi-frivolous appeals of criminals who are already in prison. As long as the attorney general keeps a good staff of appellate lawyers together (and Norton has, as did her predecessors), there's not much else to do.
Norton has put a "victim's advocate" in the appellate section, so that crime victims are informed about the progress of a criminal's appeal and invited to attend court arguments on the appeal. This is a helpful innovation, but it obviously doesn't do anything to reduce the crime rate.
In addition, the Attorney General's Office has an Enforcement Section, which is authorized by the legislature to investigate particular types of crimes, such as complex financial crimes (i.e. Medicaid fraud). Again, Norton has retained and hired a good set of enforcement attorneys, and Freese probably would do the same. In any case, most people don't lie awake at night worrying about Medicaid fraud.
The attorney general runs a statewide grand jury that deals with crimes that cross county lines. Changing previous policy, Norton has kept the grand jury on duty year round. Norton's staff has done a good job of prosecuting the limited number of multijurisdictional cases over which the attorney general has legal authority.
Finally, the legislature this year gave the attorney general a special death penalty "strike force" to help local district attorneys prosecute death penalty cases. The strike force idea did originate with Norton, and may help the government win capital sentences in a few more cases every year. But does anyone really think that the crime rate will change in any significant way based on whether Colorado executes one person a year, or six, or none?
Dick Freese knows all this, so what can he base an anti-crime campaign on? First of all, he touts the fact that he pushed for the introduction of two anti-crime bills in the legislature this year. At first glance, this would seem to be a good reason to elect Freese as a state senator (who can introduce legislation) rather than as an attorney general (who cannot).
Neither of Freese's bills inspire much confidence in his potential as a crime-fighter. Everything gangs do is already illegal; one of the Freese bills would have made gangs double-illegal by defining gang membership as a felony. The bill was a badly drafted civil liberties nightmare, which would have turned many ordinary people into "urban terrorists." For example, an "urban terrorist group" was defined so broadly as to include three college students who decided to spend an evening together using marijuana.
The other Freese bill would have banned minors from possessing handgun ammunition. It was mostly redundant to existing federal law, and was based on the premise that the same kinds of gun controls which have failed in places like New York and Washington are going to work great in Colorado.
In addition, Freese is blasting Attorney General Norton for participating in a lawsuit to declare Denver's ban on semiautomatic firearms unconstitutional. The trial court agreed with Norton that the law was unconstitutional. The state Supreme Court majority reversed that ruling, and found that most (but not all) of the law was constitutional. (Disclosure notice: I was the lawyer who handled the case in trial court for the attorney general, so I obviously have a point of view.)
It should be noted that Gale Norton didn't start the lawsuit. Her predecessor, Democrat Duane Woodard, was the one who got the attorney general into the lawsuit against the Denver gun ban.
When Democrat Woodard was running for re-election in 1990, Dick Freese was the chair of the State Democratic Party, and worked hard to keep Woodard in office. It's a little odd for Freese to assert that Norton's continuation of the lawsuit disqualifies her as attorney general, but that Woodard's initiation of the suit should not have prevented him from earning another term.
The good news about all this talk over crime-fighting is that in spite of all the rhetoric, Colorado keeps ending up with good attorneys general. Gale Norton, despite her 1990 campaign, turned out to be a good attorney general, with a genuine concern for constitutional rights. One reason for Norton's success is that she continued many of the policies of Duane Woodard (also a good attorney general). For example, she carried on the battle (initiated by Woodard) against federal pollution at the Rocky Mountain Arsenal. Her office won a major court decision which assures that the cleanup at the arsenal must comply with state pollution laws.
Dick Freese probably would make a good attorney general, too. He's a smart, experienced corporate lawyer with a long and admirable record of community service.
The bad news about all the emphasis on street crime is that it deprives the voters of a debate over other issues where the attorney general can make a difference. For example, when a federal court ordered Colorado State University to create a women's softball team, Norton argued that - while schools should not be allowed to discriminate against women's sports - a federal court has no business telling a school which particular kinds of sports programs to set up. Freese characterizes Norton's defense of CSU's autonomy as "frivolous."
Norton also believes in full enforcement of the Fifth Amendment, which requires that the government pay just compensation when taking someone's property. She believes that the just compensation provision should apply to "regulatory takings" - as when government regulations forbid a person to build anything on his vacant land. Many environmental lobbies intensely oppose an invigorated Fifth Amendment, which might significantly increase the cost of some environmental regulations. Again, Freese is on the opposite side from Norton. Forfeiture laws allow the government to seize property (without the need for court permission) from "criminals" who have not been convicted, or even accused, of a crime. Norton has used the forfeiture laws sparingly, usually in conjunction with an actual criminal prosecution. Freese sharply disagrees, and promises a massive increase in forfeitures if elected. So, in contrast to the usual pattern (as in the 1988 Bush- Dukakis race), in this election it's the Democrat who is accusing the Republican of being overly sensitive to constitutional rights. The 1994 attorney general race gives a choice between two excellent lawyers with very different philosophies of government; the voters just need to remember that they're choosing somebody who will run a legal practice, not a SWAT team.
Dave Kopel is a Research Director of the Independence Institute, a think
tank in Golden. He served as an assistant attorney general under both Duane Woodard and