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In what is shaping up to be one of the tightest statewide elections this year, Coloradans will either vote to give Democratic incumbent Phil Weiser another four years as attorney general, or they will select Republican challenger John Kellner.
Weiser, a former dean at the University of Colorado Law School, was elected in 2018 and worked previously in the Clinton White House and in the Obama justice department. Weiser’s early career included time as a U.S. Supreme Court law clerk to justices Byron White and Ruth Bader Ginsburg.
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Kellner is the district attorney for the 18th Judicial District, a jurisdiction that encompasses Arapahoe, Douglas, Elbert, and Lincoln counties. He is also a lieutenant colonel in the U.S. Marine Corps Reserve and has served in Afghanistan. He was a chief deputy district attorney before being elected DA in 2020.
5280 interviewed each candidate in-person. Questions were not provided in advance, and responses were not given a time limit. On the issue of abortion access in Colorado, each candidate was asked a different question. Interviews have been edited and condensed for clarity.
5280: What part of this job are you most passionate about?
Phil Weiser: There are two related points I want to mention. One is getting to hear from, and understand, the concerns of people across Colorado, and the other is being able to represent them and fight to protect their rights.
Many people are afraid of their reproductive rights being taken away, of being cheated by irresponsible companies. I want to make sure we are using our office to serve as the people’s lawyer to fight for all the people of Colorado.
John Kellner: Protecting the public and protecting the people of Colorado. We’ve seen over the last four years, especially, that Colorado has become a less safe place to live. Everything is trending in the wrong direction when it comes to crime. We’re number one in the country for motor-vehicle theft, number one in the country for bank robberies, we have one of the highest fentanyl-overdose death rates in the country.
I’ve been a crime-fighting prosecutor my entire career—from the Marine Corps to now as a district attorney—and every day, I interact with people who are the poorest and most vulnerable in our communities, who are feeling the [negative] impacts of statewide laws and policies disproportionately.
It’s no secret that crime—not just in large cities—is a serious issue for Coloradans. What do you say to citizens who say they don’t think their communities feel as safe as they once were?
Weiser: We have to be focused on how we address rising crime and use all the tools we can to hold bad actors accountable. That’s whether they’re individuals, organized criminal enterprises, or companies that are breaking the law and cheating people. In my office, I’ve worked to do that—to hold any wrongdoer accountable.
We focus on organized crime. We’ve gone after organized criminal enterprises that have done car-theft rings. We’ve gone after organized criminal-enterprise rings that have robbed Asian businesses in northern Colorado, and those who traffic in fentanyl. We’ve worked hard to build better law-enforcement agencies in this state, modernizing law-enforcement training for the first time in 40 years. We’ve fought in the legislature for funding—not once, but twice—to better support recruitment and retention of law-enforcement officers. There was $5 million allocated to this critical priority that we fought to make happen.
Kellner: I’d tell anybody who feels that way that they don’t have to accept the status quo. You can draw direct lines to a lot of decisions made at the state level, where leadership has failed to keep people safe.
An example of this is the 2019 bill to de-felonize the possession of fentanyl and make it a misdemeanor to possess enough fentanyl to kill [dozens of] people. That enabled dealers to hide in plain sight, as if they were simply users. It poured fuel on the fire of this fentanyl crisis by making this a place that was more permissive for cartels to do their work.
It’s no secret our fentanyl death rate has gone up, I think, 410 percent since that bill passed. Last year alone, more than 900 Coloradans lost their lives—and 29 kids between the ages of 10 and 18, in the last school year. It’s not slowing down. In my office, I’ve used our grand jury to go after these fentanyl traffickers. We’ve had a lot of success, indicting dozens of people: from Mexican drug cartels, seizing guns, and, literally, hundreds upon hundreds of thousands of fentanyl pills destined for our streets.
What I see lacking from our current attorney general’s approach is leadership and the use of the statewide grand jury. When the state Legislature was debating this 2019 bill, the attorney general didn’t show up at the Capitol to lend his important voice in opposition to that bill. That voice could have been the difference between that bill passing or not. But he didn’t see the crisis coming because he doesn’t have experience in the criminal-justice world, and he didn’t understand the fentanyl crisis was on the horizon.
What is the biggest issue facing district attorneys in Colorado?
Weiser: I think the challenge I would focus on—if I had to pick one—is addressing fentanyl trafficking and the dealing of fentanyl, often in ways that’s disguised at counterfeit prescription pills. The opioid crisis now is in its third wave. The first wave was these pills, like OxyContin, pushed out by big drug companies that we’re holding accountable. The second is heroin pushed out by drug cartels. We’re now on the third wave. That’s fentanyl. It’s deadly. For many kids who are getting these pills, they don’t have the foggiest idea it’s fentanyl. They’re told at a party, “Take this pill.” I’ve talked to moms who’ve lost their kids from, essentially, fentanyl poisoning.
These are hard cases to bring. We went to the Legislature to fight for new tools to better address this.
Kellner: I think it’s really similar to the issues facing law enforcement, in general. It feels like we’re fighting crime with a hand tied behind our backs.
For many years now, the attorney general has either been silent or supported a lot of offender-friendly bills that have become law and made it harder for us to hold criminals accountable. Rather than treat criminals like they’re the victims, we should be fighting for tougher penalties.
An example of this is, just last year, the Legislature passed a bill that my opponent supported that allowed convicted felons to possess firearms. I’m talking about convicted felony drug dealers and car thieves who were allowed to possess guns again. That took away a vital tool that we use in law enforcement to proactively stop crime before it occurs. Let’s say an officer contacts an individual at a traffic stop, and they find a gun in their waistband. Then, the police find that this person is a convicted felony drug dealer. That person is not allowed to have that gun; it is another crime. But that bill, signed into law, took away the ability of law enforcement to seize that gun and go test it to see if it links to other cases and to arrest that person for that offense and take them to jail.
Our current attorney general supported that bill. I did not. It’s just another example of the way in which it feels like it’s becoming more difficult to do our job to keep people safe.
The Fentanyl Accountability Act was signed into law this past summer. What is working with it, and what might need to be tweaked in the future?
Weiser: It’s probably a bit soon to tell, but I’m concerned whether or not we’re still going to see dealers able to operate under the possession limit. The old law had a higher possession limit that was giving dealers room to operate. We moved it down to one gram for any substance containing fentanyl. I would have liked to push it down lower than that, but that’s what we got, and we’ll have to see if that’s sufficient. I’ll be keeping an eye on that.
As for other elements of the law, we pushed for money to address these fentanyl prosecutions. If they find that it’s not enough money, or we’re not developing the resources to go after these drug dealers, we’re going to have to figure out how we do that. That’s something our office has already focused on using our state grand jury for. We have a special prosecution section. This is the top issue for us and will remain so.
Kellner: It’s too early to say. There is a significant amount of grant funding in there for local law enforcement to go after fentanyl traffickers, but to date, that money has not been doled out or given guidelines. That, to me, is not moving with the urgency this situation truly demands.
One of the things that passed in that bill that I advocated strongly for is a sentence-enhancer for drug dealers whose fentanyl kills people—to make it so that they’re facing a mandatory prison term. The way the bill passed made those people probation-eligible, which I disagree strongly with. I think there should be stiffer penalties. Because the law has been in effect only for a couple of months, those new cases haven’t made their way through the justice system.
One thing I was strongly advocating for was to go back to the pre-2019 law that said possession of any amount of fentanyl would be a felony offense. Given how deadly and dangerous fentanyl is—Governor Polis described it as something like anthrax—I think that is appropriate. The Legislature ultimately made it a felony to possess more than one gram. One gram is enough to potentially kill [a dozen] people. That didn’t go far enough in the bill, and I’m hoping the Legislature will readdress this next year and continue to make improvements.
Vehicle theft is a problem in parts of this state. What tools are available to the attorney general’s office to fight it?
Weiser: Three main tools. One is where you have organized criminal enterprises, we can—and do—go after them, like we did in a case called operation Vicious Cycle. That is a classic example of the kind of case we can bring.
The second area is that we work on legislation. I’m now working with members of the state House and the Senate on a bill that would change the penalties for vehicle theft. That’s something I believe is appropriate. Last session, we worked on catalytic-converter theft. That is a law we’ll work on implementing.
The third big area: When people talk about vehicle theft, what many people say is that we don’t have enough law enforcement officers to effectively investigate these crimes. The major area we’re focused on is: How do we better support law enforcement recruitment and retention? We spoke to the police chiefs about that this summer. We got the $5 million, and we’re going to work hard to figure out the best strategies to recruit more officers so we’re not in this situation that’s too often the case, where agencies are saying, “We don’t have the team members to go after these crimes.”
Kellner: This is where the attorney general’s role as being the strongest advocate for public safety really comes to the forefront. The attorney general has the bully pulpit. He is the chief law enforcement official in the state of Colorado. He needs to be going to the Legislature and advocating for smart policies that keep people safe.
Unfortunately, the exact opposite happened. Last year, my opponent supported a bill that made what used to be a felony to steal a car into a misdemeanor. We’ve got to reverse course on that.
I’ve advocated to get rid of value-based charges for car thefts. For example, it is a class-three felony to steal a car that is valued at more than $100,000. It is a class-one misdemeanor to steal someone’s car that is valued at $2,000 or less. I think that’s fundamentally wrong.
You steal somebody’s car, and what you’re really talking about is that person’s ability to get around, and that has a profound impact on their lives. That’s getting to your job or picking up your kids from daycare or school or visiting a relative. It shouldn’t matter if you were stealing someone’s Maserati, versus somebody’s $2,000 Kia. This is an example of a statewide law that’s impacting the most vulnerable and sometimes the poorest among us who can least afford this.
I’ve advocated for getting rid of these value-based penalties and to make all car theft a class-four felony. For repeat offenders, you need to make that a class-three felony. I’ve worked with our fellow district attorneys on our DA council to the point where everybody voted unanimously two weeks ago to support legislation to that effect. Last week, Governor Polis came out with a statement agreeing with that approach and asking [the Colorado Commission on Criminal and Juvenile Justice] to send him a bill that raises the penalties for car thieves—especially for repeat offenders.
What should the attorney general’s role be to help combat the metro area’s homelessness crisis?
Weiser: Many people who are experiencing homelessness are struggling with opioid-use disorder. I mentioned the fentanyl-use epidemic we are seeing. The level of addiction and crisis we are seeing is profound, and it is creating challenges in a range of communities.
I took on Purdue Pharma and Johnson & Johnson and other big companies that pushed out these original prescription drugs, which had the effect of creating the roots of this addiction crisis. We’re bringing back $520 million to Colorado to provide more drug treatment recovery and education-prevention services. This also creates more pathways for people experiencing homelessness who are there because of their drug addiction. We’re giving them a chance to build a new life.
The other area that has a nexus from our office is, too often, we release people from prison with only $40 in their pocket, and we basically set them up to be homeless. I’m building a fair-chance employers’ network to help increase employment opportunities for those leaving prison.
Our reentry system has real room for improvement to give people hope and opportunities for employment. This is what I call a potential win, three times over: It’s obviously a win to get these people an opportunity. It’s a win for society because it promotes public safety, and people are not committing crimes. And it’s a win for the employer because they can say on the other side, “We have these great and dedicated employees who are so grateful; we’re thrilled.”
Kellner: Criminalizing homelessness is not the answer. Just like the attorney general has a role in advocating for public safety, we have a role in advocating for sensible policies to help people get back on their feet. One of the ways to do this is through rehabilitative programs that actually work.
For somebody who is arrested for possession of drugs or some other petty offense that fuels an addiction, I want to make sure we have programs in place that actually help deal with those root causes. Right now, I think we’re number four in the country for the worst recidivism rates in the nation. Our programs are not working the way we should demand as Coloradans. The attorney general has a responsibility to identify the programs that are working and be transparent about it, and then advocate for more funding and resources to make sure everybody has access to those kinds of successful programs.
We all know the story of Elijah McClain. Now we know about the police-related shooting of Christian Glass in Gilpin County. What tools do we need to give law enforcement to prevent deaths like these from occurring in the future?
Weiser: The work we are doing around law-enforcement training and the redesign of their curriculum is incredibly important because it involves heightened awareness of one’s emotional state. It involves empathy for both victims and for those involved in the criminal justice system. It involves a real commitment toward not escalating situations needlessly.
We can, and we must, train better peace officers. Obviously, there’s a huge mental health connection to that. Both understanding the individuals in the criminal justice system’s mental health, but also the officer’s mental health. If an officer is aware of his emotional state, that can avoid some awful things from happening. I will give you an example: A police chief once told me—he looked at the worst officer-involved shooting he had—and it was because somebody had shown up at a child-abuse situation and that officer was so traumatized that when they rolled to the next situation, that officer used excessive force.
We’re working right now with Denver on something called active-bystander law enforcement. This is ongoing training for existing officers. The premise is: Let’s make sure team members look out for one another, so they can say to another officer who is getting a little heated, “You should sit this one out. I think you’re a little traumatized from what you just saw.”
The ethic is, just tough it out. That’s not how trauma works. Trauma affects people, whether you accept it or not. That’s why I fought for $3 million in mental health support to make sure every law enforcement officer in Colorado has access to mental health resources.
Kellner: One of the things the attorney general has a lead role in is peace officer standards. The training board actually falls in the attorney general’s office.
Where you set the curriculum and the standards—really, the expectations for law enforcement on how they’re going to train—and learn how to deescalate situations to ensure they don’t end with tragic results. You want to ensure that law enforcement has the proper training and the tools to do a very difficult job under stressful, high-pressure situations in a way that Coloradans expect.
We need to set clear guidelines and expectations for how law enforcement will deescalate situations, which is a fundamental role of that job. That’s why I would come to this role as attorney general with significant experience in law enforcement. I have worked with military police during my time as a judge advocate in the Marine Corps, and I’ve spent over a decade working with Colorado police officers and sheriffs. I’ve reviewed dozens of officer-involved shootings in my capacity as district attorney over the years, and I have a clear desire to work with law enforcement to make sure they have the right training and the tools to ensure these kinds of tragedies don’t occur in the future.
In the face of drought and reduced water levels on the Colorado River, Western states like Colorado are looking for ways to use less water. How do you see the attorney general’s role when it comes to protecting and preserving Colorado’s water supply?
Weiser: This is among the most important things I, as attorney general, can, and will, do. Dick Bratton and Russ George, two longtime water leaders and Republicans most of their lives, said it’s critical that I continue as attorney general because of my leadership on this issue. This is a complex topic. Litigation involving water rights starts at the U.S. Supreme Court. We have to be prepared to fight for our rights, if it comes to it. We really need to make sure that—both within Colorado and with our neighboring states—we manage water the right way.
Within Colorado, the wrong way to manage water would be to take some rural agriculture areas—think, the San Luis Valley—and ship it to the Front Range. Your magazine had an article years ago called “High and Dry,” about Crowley County. I’m the first statewide official who opposed the buy-and-dry plan in the San Luis Valley. If we were to do such a plan, it would devastate that community. I understand there’s a suggestion to do that, because you could make money by trying take water from rural communities and move it to urban population centers. It’s wrong.
What happened in Crowley County is a flashing warning sign that can never happen again. I will fight and litigate as necessary against such plans. Within Colorado, we need to ask what is right for all of us. That means we’re going to be doing a whole bunch of conservation strategies; we’re going to be seeing a lot more aggressive xeriscaping than we’ve seen before. We’re going to see other ways we can be more efficient when we use water. We will have to reuse water. You’ll hear about gray water more—people reusing the same water that’s already been used. Part of this drought is going to be much more variable.
This is going to take innovative thinking in Colorado, and it’s going to take us working together. That’s hard enough. On top of that, we’ve got to work with surrounding states, and we can’t be afraid to litigate if our rights are going to be trampled on.
Ultimately, particularly the lower-basin states have got to get real about the challenges we face. Last year, they used 10 million acre-feet of water. We used 3.5 million. Each of us are entitled to 7.5 million. They have got to start tightening their belts the way we have. We can work with them on what that looks like.
Kellner: The attorney general is the legal representative for the state, so there’s clearly an important role, and a collaborative role, in working with all aspects of our state government to protect Colorado’s water. There are many ways we need to be on guard, and one is with lower-basin states that are using more water than their allocation. We need to demand that they live up to the terms of the Colorado River Compact.
We also need to get on the same page when we’re comparing our water allocation and use in the same way as lower-basin states. We account for evaporative loss in the upper basin, but the lower basin doesn’t. That’s potentially a million acre-feet discrepancy every single year. We need to be investing in tools to more accurately measure our water flow, to make sure if—for instance—Blue Mesa Reservoir gets drawn down to send water to lower-basin states, that it’s actually getting there.
We also need to be thinking boldly about smart water storage. It’s been a long time since we invested in the capacity to store water in the wet years we have, rather than simply sending it downriver.
There are calls to renegotiate the Colorado River Compact. I think that’s a bad idea for Colorado, and I would fight against that. There’s also an overreach by the federal government to try to dictate how we allocate our water. That came to the forefront a few months ago when the Bureau of Reclamation demanded that all seven states that comprise the Colorado River Compact cut millions of acre-feet. The fact of the matter is the federal government doesn’t have the authority to dictate that, to put the onus on Colorado when we’ve been living below our allocated water. We need an attorney general who is going to be forceful and advocate for the state to ensure our water and property rights are not encroached on by the federal government.
You’ve said you would go after state municipalities if they attempted to restrict abortion access, in light of the U.S. Supreme Court’s Dobbs decision. What would that look like?
Weiser: Colorado passed the Reproductive Health Equity Act. It’s a law that I fought for. I believe that the Dobbs decision is a tragic mistake and is already doing lots of damage across the United States. In Colorado, we have this law on our books, and I have said I would enforce that law, including against local governments, if they restricted access to abortion care. I also have said I would defend Colorado doctors and patients who travel from other states for the right to access abortion care.
I’m also committed to protecting reproductive rights in the sense that, if we have the chance to get the Supreme Court to reverse its mistake and reinstate Roe vs. Wade, I will fight for that, too.
You’ve said you would protect abortion access in Colorado if you were elected as the state’s attorney general. Would that be difficult for you, personally?
Kellner: No. It wouldn’t. The job of the attorney general is to enforce the laws of the state. It’s important for people to understand that abortion was legal in this state before Roe vs. Wade was even decided. It remains legal today, even after Roe vs. Wade was overturned.
As someone who takes an oath to uphold the laws of our state, that includes every law. It’s especially important to recognize that people in this state have not only decided this issue through their elected representatives, but they’ve spoken about it at the ballot box on multiple occasions. I respect that.