Capitol Review: Criminal justice reforms address prison overcrowding, economic inequities

Editor’s note: The Indy is publishing a series of stories reviewing the 2019 legislative session in Colorado. Here, we focus on criminal justice. Other stories highlight changes concerning opioids, immigration, voting/elections (upcoming) and climate.

Criminal justice reforms dominated this legislative session, with more than 75 relevant bills introduced.

The majority of those bills can be broadly characterized as first steps toward potential broader reforms to come.

For example, lawmakers ended cash bail for low-level offenders; the next step, progressive reformers who drove the effort said, would be to end cash bail for misdemeanor and felony offenders, too. Lawmakers passed a slew of bills aimed at lowering the state’s growing prison population; the next step would be to actually follow through on that goal.

Many of the reforms passed this year with bipartisan support, and few inspired any real controversy. In general, disparate interests within the criminal justice community — from the ACLU to prison abolitionists to the bail industry to the lobby groups backing sheriffs and district attorneys — were able to avoid any real head-butting, coming together more often than not.

That’s not to say everything came easy this session. There were several notable legislative failures on the criminal justice front, headlined by an explosive fight over whether to repeal the death penalty.

Here is a summary of some key reforms:

To address economic inequities on the front end of the criminal justice system, lawmakers made changes to how long someone can be jailed prior to a criminal conviction.

HB19-1225 — Cash bail — Colorado lawmakers unanimously supported a measure to ban cash bail for petty and municipal offenses — violating an open-container law or a park curfew, for example. The cash bail system is problematic, its critics say, primarily because it lets people of means walk and keeps poor people locked up. Lawmakers aren’t ready to eliminate the system altogether — there’s no evidence such a proposal would’ve passed the legislature this year — but the first-step bill to provide relief for the lowest-level offenders sailed through the Capitol.

SB19-191— Pre-trial — Colorado taxpayers spend an average of $23 million every year to keep people in jail pre-trial, according to the state. These are people still presumed innocent by the state, who, in many cases, pose no risk to public safety and aren’t considered likely to flee or skip out on a court date. Lack of money or lack of resources in jails keeps them behind bars. Senate Bill 191 took aim at that second reason, setting up new rules to require more timely bond hearings as well as more prompt release from jail. Lawmakers didn’t get everything they wanted here — they abandoned a planned mandate for bond hearings to be held within 48 hours of bookings — but the bill is a significant step toward reducing jail stays and potentially saving taxpayer money.

As lawmakers were writing these new laws, the state’s prison population hovered around 99 percent full (149 beds remain open in all the state’s prisons). Gov. Jared Polis saw an empty high-security prison in Cañon City, known as Centennial South, or CSP II, as part of the solution to the capacity dilemma. Lawmakers have fought reopening the prison, which was built for solitary confinement, in past years. But, this year, they agreed to open part of the prison to house overflow should the state’s prisons reach capacity, as projected.

SB19-259 — Lawmakers authorized the use of up to 126 beds in Centennial South for one year. The beds can be used only if the state prisons reach 99 percent capacity for two consecutive months. Lawmakers said they supported use of Centennial South with the understanding Polis was also backing a number of their proposed reforms aimed at releasing more inmates on parole and sending fewer people into the system. The hope is, lawmakers say, the extra beds won’t even be needed.

SB19-143 — Hundreds of the approximate 8,700 parole-eligible inmates who remain behind bars could be released this summer. When certain low-level convicted felons are eligible for release, it will be harder for the parole board to deny them parole. The director of the Department of Corrections also can recommend inmates with low-level convictions to be released. Prosecutors will no longer be able to send parolees who fail a drug test back to prison.

HB19-1263 — Next year, people arrested with less than four grams of drugs like heroin and methamphetamine, both of which are highly addictive, will face a misdemeanor charge rather than a felony. Intent to sell any schedule 1 or 2 drugs, which includes fentanyl, MDMA, LSD and psilocybin mushrooms, is still a felony. Felonies carry a potential prison sentence; misdemeanors carry a potential jail or probation sentence.

For those who served their time, lawmakers sought to limit the collateral consequences that come with having a felony criminal record, including difficulty finding a job or housing.

HB19-1025 and SB19-170 — “Ban the box” — People with felony convictions are often asked to check a little box on applications for jobs, schools and housing to indicate that they’ve got criminal records. The legislature overwhelmingly supported two bills this year that chip away at the stigma created by those little boxes. One bans the box on college applications and another on job applications. Neither bill will prevent an employer or admissions officer from independently looking up an applicant’s criminal record, but the point of these bills is to give people with felony convictions a chance to make first impressions without being burdened by their pasts. Separately, another bill, HB19-1106 , specifies landlords cannot consider an applicant’s arrest record five years after the conviction.

HB19-1275 — It is now easier to petition a judge to seal felony convictions from public inspection. Record sealing allows people to keep arrest and conviction records private when applying for jobs for an apartment, for example. Certain high-level felony charges are more difficult to seal.

Failures and next year

There were several major criminal justice reforms that either failed or never made it to the starting line.

Allowing people to erase low-level marijuana convictions from their records was one of them. Two judicial districts in Colorado — Boulder and Denver — allow residents to petition to have these convictions expunged. In all, 85 people have done so. Thousands of Denver residents were expected to seek expungement of their records, but the narrow scope of the policy and the procedural difficulty of doing so has led to few records actually being scrubbed. Lawmakers have said they want to take on this issue and pass a law that automatically would erase these records. That bill never surfaced this session.

Bond reform is another bill that never made it. Colorado lawmakers agonized over House Bill 1126, which, among other things, would have required each judicial district in the state to develop a new pretrial screening process, with a revised risk-assessment algorithm for every person processed through the system. Supporters feel it’s past time for a new, more lenient algorithm that gets more people out of jail pre-trial.

The bill would also have required every county in Colorado to have a pretrial services program to supervise defendants. Many were skeptical of the bill from the outset, mostly because of the fact that risk-assessment tools have, in Colorado and nationally, proven discriminatory. The sponsors made changes to address this concern, but the bill remained on shaky footing all the way up to the final week of the session, when the bail industry launched an all-out assault to kill it. Senate Democrats pulled it from their calendar because the controversy of the bill would have eaten up precious hours with debate. It wasn’t clear the bill had the votes to pass, anyway.Lastly, an effort to repeal the death penalty, SB19-182, failed. Barring state executions seemed like a done deal at the start of the session. But internal splits among Democrats prompted bill sponsors to abandon their efforts in an emotional and quite public falling out. They vowed to take up the issue with renewed resolve next session.