Colorado could limit jail time and bail for poorest defendants

Colorado is primed to take a major step toward reforming a bail system that systematically and disproportionately punishes the poorest of the poor.

Lawmakers say they are hoping it will keep thousands of people a day out of Colorado jails and save taxpayers some of the more than $23 million spent every year to keep people locked up before they go to court.

A trio of bipartisan bills was introduced last week — two in the House, one in the Senate. The House measures seek to move away from practice of keeping people in jail pretrial because they can’t afford to bail out. The practical effect would be to keep only those who pose an actual risk to the public in pretrial lockup. The Senate bill would limit the amount of time people spend in lockup waiting for their court appearances.

The three measures are not a package deal and will likely have slightly different coalitions of support and opposition, but together they’re being hailed as an incremental step toward reforming Colorado’s bail system.

“Our criminal justice system is, as a factual matter, criminalizing poverty,” Colorado Attorney General Phil Weiser said during a House committee hearing Thursday for two of the bills. “If you can’t afford to pay bail, if you can’t afford to pay bond, you’re going to sit in jail. And you’re going to sit and sit and sit.”

An estimated 50-60 percent of the (at least) 13,000 people in the state’s county jails on any given day are awaiting trial, and a relatively small amount of money can mean the difference between freedom and lockup. Those who can afford to bail out after being booked head home, while those who can’t — that is, homeless and lower-income people, who are often also people of color — stay behind bars for days or weeks on end.

These new bills would also have the effect, supporters argue, of providing some relief to an overburdened jail system in Colorado. A snapshot of all county jails in Colorado from one day in November 2017 showed many facilities at or above 90 percent capacity. Pueblo’s jail was at 194 percent. Weld’s had just 12 available beds.

Additionally, data from the state’s Joint Budget Committee shows that it costs about $100 per night to keep someone in a jail, so bill supporters also tout their cost-savings potential.

“The real issue right now is we have jails overcrowded, people sitting in jail today because they can’t afford to pay to get out,” said Rep. Leslie Herod (D-Denver). “I want to fix this now. More fixes will come. But I’m not willing to wait and allow people to continue to sit in jail who have not been convicted of a crime, simply because they can’t pay.”

The bill in the trio that’s so far garnered the most attention — HB-1225, for which there was a press conference Thursday at the Capitol — would apply to low-level offenses only, such as public urination, trespassing and open-container laws, which generally carry bonds of no more than $250.

The other reforms Herod’s talking about may include misdemeanor or felony offenses — though that’s not the focus at the moment.

“This is a start,” said Elisabeth Epps, a self-identified “abolitionist” who leads the Colorado Freedom Fund. “It’s a beautiful start.”

There’s also some chance the state Commission on Criminal and Juvenile Justice (CCJJ) will try to get the legislature’s support for comprehensive reform through a referred 2020 ballot measure.

So, what would these three bills do?

House Bill 1125

Introduced by Reps. Matt Soper (R-Delta County) and Herod with support from the ACLU, this bill aims to eliminate the use of monetary bail for low-level offenses, except in rare cases.

It looks like a good bet to become law — Republicans and Democrats on the House Judiciary Committee were united in their support for it Thursday, voting 11-0 to advance it to the House floor.

Bail is a payment a defendant, or friend or family member, makes to get out of jail. Bond is a payment someone else — an outside company, often — pays on a defendant’s behalf to get them out.

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But bail is set so low for the kinds of crimes touched on by HB-1225 that bondsmen usually won’t even bother getting involved.

These are the most minor offenses, typically associated with homelessness. Soper likened the seriousness of the offenses in question to “making a U-turn on Main Street.”

They are offenses like the one Michael Marshall committed in 2015. He was a mentally ill man jailed for allegedly trespassing on the grounds of a Denver motel where he frequently stayed. He had a psychotic break in jail, and sheriff’s deputies smothered him and put a “spit guard” on his mouth. Marshall choked to death on his own vomit.

“He was held on $100,” said his niece, Natalia Marshall, at a press conference for HB-1125. “And his family wasn’t even notified. … We could’ve gotten him bailed out of jail easily with no questions asked, but unfortunately he ended up being murdered.”

The bill is aimed at people like Marshall, people with so few means that even a few days or a week in jail can be life-changing, with profound potential snowball effects.

Those effects run the gamut from potential job loss, child care or custody challenges, towed vehicles, critical appointments missed.

“It is so expensive to be poor,” Epps said.

House Bill 1226

This bill was also introduced by Herod and Soper, and will be carried in the Senate by Pete Lee, a Democrat from Colorado Springs. The bill is backed by the CCJJ.

Among the requirements in the bill: each judicial district in the state would have to develop a new pretrial screening process, creating a risk-assessment algorithm for every person processed through the system. It would also require every county in Colorado to have a pretrial services program to supervise defendants.

Some in the industry, including Jeff Clayton, the Denver-based executive director of the American Bail Coalition, argue that could be very expensive. “Counties don’t have the money, the state doesn’t have the money and if they go to voters, the voters probably won’t vote for it,” he said. HB-1226 could face the steepest opposition of the three bills.

It would largely eliminate the right to bail as we know it, in favor of supervision and non-monetary conditions. Progressive groups and those seeking to reform the criminal legal system applaud that goals, but harbor deep concerns about the risk-assessment tools that would be used if this bill is passed. The risk being assessed, theoretically, concerns likelihood to reoffend, to endanger others or to flee and not show up to court.

The bill, said the ACLU’s Rebecca Wallace, could result in overreach. It  “uses very expansive language at every stage that restricts release and will probably result in the detention of people who are not violent and will not flee.”

Several reformers interviewed for this story suggested the risk-assessment aspect of HB-1126 may need to be reworked if the bill is to receive wide support and pass. In committee on Thursday the bill was laid over for future discussion, indicating there’s some workshopping to be done before the bill can move forward.

Senate Bill 191

Like the House bills, this one is bipartisan, too. It’s being sponsored by Republican Vicki Marble of Fort Collins and Democrat Jeff Bridges of Greenwood Village. The bill is backed by the ACLU, and it has the potential to affect a broader population than the two House bills.

Critically, the bill would require that a court has to hold a bond-setting hearing for a defendant within 48 hours after that person is arrested. As it stands, some defendants must wait much longer than that — four or five days, sometimes — before their bond is ever set by a judge. That tends to happen in under-resourced courts that are only open for a few days of the week, or that close for extended periods on holidays.

“I’m sorry if the (judges) have got a tee time. Move it,” said Marble, who previously worked 20 years in the bond industry. “These guys, constitutionally, should get to see a judge.”

The 5th Circuit Court of Appeals — notably, a conservative court — recently held that a person can’t be held longer than 48 hours before a bond setting. On those grounds, Marble and many others are outraged by the fact that many in Colorado do wait around for more than two days before seeing a judge. Only a handful of counties have court open six days a week, so in much of the state a person arrested on a Friday will wait until at least Monday to see a judge — and longer if it’s a holiday weekend.

This problem, too, disproportionately affects the poor since most people who are arrested can afford cash bail. That’s because most people who get arrested have the opportunity to pay cash to get out quickly. Someone who’s spending three or four days waiting to arrange bond couldn’t pay their way out up front.

SB-191, which hasn’t been heard in committee yet, appears to have broad backing so far. It would also require sheriffs to allow people to post bond within two hours of it being set, and would limit bond processing fees to $10.

Marble said it might well have been folded in with the House bills for one omnibus, but “that would’ve been a mess.”

“We’re trying to deal with the timeline here,” Marble added.

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