These are all of the Mega category bills proposed in the 2021 session. Each bill has its own bill number, please use your browser search feature to find the bill you are interested in. Note that these are across all categories, return to the Colorado home page to pick a specific bill category. All Mega bills also appear on their specific category pages.

None of the text is the opinion of Engage. Each bill's description, arguments for, and arguments against are our best effort at describing what each bill does, arguments for, and arguments against the bill. The long description is hidden by design, you can click on it to expand it if you want to read more detail about the bill. If you believe we are missing something, please contact us with your suggestion. Some of these bills have the notation that they have been sent to the chamber's "kill" committee. This means that the leadership has decided to send the bill to the State committee even though it does not belong there based on its subject matter. This committee, in both chambers, is stacked with members from "safe" districts and the idea is to kill the bill without forcing any less safe members to take a hard vote. It is possible for a bill to survive the kill committee, but it is very rare.

Prime sponsors are given after each bill, with Senate sponsors in () and House sponsors in []. They are color-coded by party.

Some bills will have text highlighted in pink or highlighted in orange or highlighted in yellow. Pink highlights mean House amendments to the original bill; orange mean Senate amendments; yellow highlights mean conference committee amendments. The bill will say under the header if it has been amended.

HB21-1041 Private Sector Enterprise Protections [Woog (R)]

Appropriation: None
Fiscal Impact: $2.8 million per year in legal services

Goal:

  • Prohibit the state government from passing or implementing any law or rule that interferes with the ability for businesses or their customers from using their free will and free choice and take risks in any manner, time, or condition that is acceptable to the parties involved

Description:

Law applies to all individuals and any sort of business entity engaged in selling any sort of product or service for profit. Law specifically says it overrides the state constitution. Bill allows any business to assert a violation of this law in any judicial or administrative proceeding of any kind as a defense.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • Licensing and other restrictive regulations opt as enormous barriers in the marketplace
  • Small businesses are frequently just not equipped to deal with the avalanche of regulations that can be thrown their way, and the cost of keeping in compliance can become higher than a business with not many employees can bear
  • Personnel responsibility should be more important than government hand-holding. So long as people properly understand the risks of an activity beforehand and it is not illegal, it should be allowed

In Further Detail: Licensing and other restrictive regulations opt as enormous barriers in the marketplace, protecting current players and making it difficult to break in. Cutting hair, doing nails, driving a taxi, the list goes on and on (and there seem to be fresh attempts to add to it all the time). In our zeal to protect ourselves, we have gone too far in the other direction, making far too many professions bow and scrape to the government in order to function at all. We all need to take some more personal responsibility. If all parties involve understand the risks and the activity or product is not illegal, then it should be allowed. Obviously if someone is not informed of the potential risks that is a different story and would not be protected by this law.

Arguments Against:

Bottom Line:

  • This would destroy the ability to hold any business in the state accountable for nearly anything—gross negligence leading to death would simply be people undertaking a risk. The only thing that might survive is outright lying to people
  • This would prevent the state from regulating or licensing any industry: medicine, electricians, insurance: all of it would rely on whatever federal regulations exist—and for the most part this stuff is left up to states
  • You cannot write a law that supersedes the state constitution, that’s now how our government works

In Further Detail: This goes far beyond past efforts to put limits on the ability of the government to regulate businesses for public safety. There is no standard at all really, it is just that any business or consumer should be able to buy or sell anything they want as long as they are willing to undertake the “risk”. If there is no federal regulation or licensing requirement than the state can do nothing to protect people. Just to pull one example out of many, doctors are licensed by the state to practice medicine. Under this bill, if you were willing to take the risk of your car salesman neighbor down the street operating on you in your living room, because for whatever reason you thought he could do it, there would be no way for the state to stop it and potentially no way to really do anything about if after the fact. This would obviously be a disaster for public safety, and it would go far beyond just medicine. Finally, you can’t write a law that supersedes the state constitution. That is not how our government works. If you want to change the constitution you have to change the constitution itself. Any law that contradicts the constitution is unconstitutional and will be struck down.

How Should Your Representatives Vote on HB21-1041

HB21-1049 Prohibit Discrimination Labor Union Participation [Van Beber (R), Ransom (R)]

Appropriation: None
Fiscal Impact: Potential loss of federal grant funds for RTD

Goal:

  • Prohibits an employer from requiring any person to join a union, pay union fees, or assessments to charity or other third-party organization as requirement of employment. Any agreement that violates these provisions is null and void. Excludes federal employees and employers.

Description: Nothing to add

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • All-union employment is unfair to those who don’t want to participate but are forced to in order to get or keep a job
  • Unions can still do all of their functions, they just won’t be able to force participation
  • If some people benefit from union work in the form of higher wages or better benefits without paying dues, that sort of thing happens all the time: some people put in a lot of work that benefits others who didn’t lift a finger to help

In Further Detail: So-called all-union employment is unfair to individuals who don’t want to participate, for whatever reason, and are forced to support something they do not believe in. This includes being forced to pay their own money to the union. Unions are still welcome to organize, but just won’t be able to force anyone to participate against his or her will. This won’t kill unions, they can still negotiate with employers for higher wages and benefits and if some people benefit from this without paying dues or joining, that will not be the worst thing in the world. It happens all the time, all over the country. Certain people or groups of people work really hard and spend time and money to advocate for a benefit that will help everyone, even the people who didn’t lift a finger to help.

Arguments Against:

Bottom Line:

  • Unions work best as all or nothing propositions, otherwise management can simply weed out people who belong to the union over time to get rid of it
  • Thresholds for unionization are far higher than simple majority rule, and we let simple majority rule force us to do things we don’t like or want to do all the time: like paying taxes and fees
  • RTD could lose its federal grant funding if this passes

In Further Detail: Unions are all or nothing propositions. The protections, wages, and other benefits that unions negotiate are for all employees, thus all employees need to contribute. In addition, people don’t have to join the union, that gives management a tool to drive a wedge among the employees. In a worst-case scenario, management can favor non-union employees to a degree that drives out union employees and destroys the union. In many ways, unions are similar to numerous forms of taxes and fees: we all vote, then we have to abide by what the decision is (and the threshold for all-union employment is much higher than simple majority rule, the higher of majority of eligible voters or ¾ of those who actually voted). So while something like this sounds nice in theory, in practice it is a killer blow to many unions who fight for their members rights every day. Being in a democracy means abiding by the decisions of the electorate, even when we don’t agree. This also destroys multiple active collective bargaining agreements by rendering them void. RTD may also lose federal grant funding by repealing compulsory union membership.

How Should Your Representatives Vote on HB21-1049

HB21-1080 Nonpublic Education And COVID-19 Relief Act [Baisley (R)]

Appropriation: None
Fiscal Impact: Accelerating loses in net funds, $25 million next year, then $47 the year after, and in ten years $152 million

Goal:

  • Create a statewide school tax credit program where the parents of any K-12 age child in the state can get 50% of the average per-pupil money in the state as a tax credit for a child in private school attendance or a $1,000 income tax credit for home schooling the child. Both of those are for full-time enrollment, half-time enrollment cuts the numbers in half, so 25% and $500 respectively. Starting next year, only children who either are too young for school or were enrolled in public school would be eligible

Description:

For private school credits, the precise amount is the lesser of 50% of per-pupil revenue or the actual amount of tuition at the school. Tax credits can be rolled over for three years but are not refundable (in other words you can’t go past $0 owed in taxes and have the state pay you money to make up the difference). Taxpayers can transfer unused credit to other taxpayers, including businesses. Pass-through businesses (where taxes are passed through to the actual owners individual taxes) can allocate the credit among its owners.

Additional Information:

Private schools are responsible for issuing the tax credit certificate to families. They must provide the state with a report each year of all credits issued, which includes the name of the taxpayer and state tax id or social security number. If the credit is associated with a pass-through business, all of the associated names and identifying numbers are required.


Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • This provides parents with more choices for educating their children if they feel their assigned public school is inadequate
  • This benefits low-income families who cannot afford private education and opens the same opportunities to them as to wealthier families
  • Estimates of future behavior are tough, but it is important to point out that the state does not have to pay to school any child who is either home-schooled or in private school and neither does the local district so the total money saved is going to be higher than the flat impact on state finances. The net overall picture in the entire state will be money saved
  • The constitutional question around religious schools getting this funding is basically settled

In Further Detail: When we allow families to make the decisions that are best for them, we maximize the ability for all students to receive the educational experience that works best for that student. Sometimes what is best for a child is not to attend their local public school. The point of free K-12 education is to provide every child with K-12 education, not to dictate where they receive it. We all know that public schools can vary wildly in quality and also in terms of specific programs. This bill also levels the playing field for low-income families who unless they can obtain a scholarship have no ability to access private education the way wealthy families do. That also increases the diversity in those private institutions, which benefits all that attend. On the finances, this is not a voucher program—we are not taking state education money and giving it to families to attend private school. The tax credits are not the entire cost of educating the child in a public school setting, so by definition the state as a whole will gain money from this bill. Now because public school financing is split between state and local governments and because the state government bears the brunt of all of the lost revenue, this is not captured by the fiscal note. But local governments will come out ahead under this plan. For constitutionality, the state supreme court had to backtrack a bit from their ruling a decade ago on school vouchers after the US supreme court ruled in favor of a religious pre-school in Missouri that raised similar issues of church/state separation (the thing became moot because Douglas County dropped the idea entirely so the state court never issued a definitive ruling). And then the US Supreme Court essentially destroyed the entire premise of this church/state separation argument in 2020 in Espinoza v. Montana. So long as the state is not favoring any specific religion and the choice was made freely by families, programs like this bill are allowed.

Arguments Against:

Bottom Line:

  • We should not be using state money to send kids to private school or to homeschool them: we give every child in the state a free K-12 education paid for by our tax dollars in public systems where we can hold everyone involved accountable
  • Every kid in the state who is school-age will be eligible for this program next year: every single kid who is already homeschooled or in private school can simply grab this handout and the bill ensures that all tax credits will be used by allowing them to be given to anyone else if the parents cannot or don’t want to use them—and the credits can also be sold
  • Despite the concern about wealthy versus poor parents, there is no attempt to means-test this program
  • This will cost us state money, regardless of what happens at the local level. That will have to come from somewhere in the state budget

In Further Detail: We provide a free K-12 education for all children in the state and that is paid for with our taxpayer dollars, in exchange for which we have the ability to write the rules of the road for these schools and hold them accountable for breaking them. If people do not want to take advantage of this free system, the law allows them to do so. But we don’t have to pay them to do it. It is telling that the last major effort by a school district to provide a similar program (in that case vouchers) led to the electoral defeat of the school board and a new regime that reversed the attempted policy. There is no means-testing to ensure that we aren’t propping up wealthy families who don’t need this, and most dammingly, there is no attempt to require that home-schooling or private schooling was done due to COVID, as the bill title suggests is the point of allowing anyone currently enrolled in private school or homeschooled to use the program. It is instead a one-time free pass for any child in the state. The tax credit structure here is also problematic: why do businesses need to be able to buy up these credits? And the bottom line is that this will cost the state money. Not considering the whole, but the actual state government. We don’t do cross-government budgeting, so the lost revenue, over $100 million a year in ten years, will have to come out of some other program. It may end up being K-12 education, which will affect the state school districts uniformly, rather than just the ones who have extra funds due to fewer pupils.

How Should Your Representatives Vote on HB21-1080

SB21-007 Improve Public Confidence Election Validity (Lundeen (R))

Appropriation: None
Fiscal Impact: About $1.7 million in costs to the state which must be borne by increased fees on businesses; impacts ranging from about $40,000 to $1.5 million on individual counties each election cycle, depending on county size.

Goal:

  • Change voting in Colorado in general elections from all-mail ballots to only mail ballots by request, requiring everyone else to vote in-person in the seven-day period leading up to and including election day, with polling locations open from 7 AM to 7 PM on each of those days. Counties get to decide how many polling locations to open (right now it is determined by population size)
  • No ballots received after election day will count (right now military members have up to 8 days after the election to get their ballot in) and counties must count all ballots on election day (they can start counting on the first day of voting, unlike now when they must wait until election day). No results may be released until all ballots have been counted

Description:

The bill does not mention primary elections. It does not alter any current legislative text in law (it begins with “notwithstanding any other provision of law”), so it is silent about mail ballot drop boxes which would presumably operate under our current rules, which do have minimum requirements for counties.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • The release of results over time stretching into the day or days after the election can be confusing, this ensures we get one answer at the end and that the end is in fact election day
  • Some people don’t feel as secure using mail ballots and prefer the old-fashioned method. Those that like mail ballots can still request them and all such requests are to be granted

In Further Detail: One thing that we all should be able to agree on: the counting of ballots should not be a spectator sport, with all the ebbs and flows of a back-and-forth basketball game, complete with large come from behind victories that only appear that way because of the order ballots were counted in and the fact that we release ballot counts before the final result is known. This confuses some partisans, who don’t understand the ins and outs of the process, and was a big factor in the ability of some to push falsehoods about the 2020 elections. This bill ensures all of that stops, with one answer about who won when we know it and ensures that we know on election day itself (or just after we tick over to the next day). On the mail ballots themselves, the fact is that some people don’t feel comfortable with their use. For those that do, the bill provides for the ability to opt-in to using them. It also provides a strong early voting period requirement, with local control flexibility for counties to determine number of polling places. Anyone who wants to cast a ballot will find plenty of opportunities to do so.

Arguments Against:

Bottom Line:

  • This may cause a massive mess—what happens if all the votes aren’t actually counted by 12:01 AM on the morning after the election (which doesn’t happen in any state in the country right now)? Do the uncounted ballots just not count at all, which would raise a host of constitutional issues? What if a particular county decides it wants to count precincts friendly to the political party in charge first and “accidentally” does not count the ballots of unfriendly precincts? What happens in primary elections? Are we truly going to disenfranchise an overseas member of the military because their ballot didn’t arrive until the day after the election?
  • We have one of the best and safest voting systems in the entire country—and our residents like it. We don’t need to change it because some people are unhappy with election results. The rest of the country would do better to be more like Colorado—which the Department of Homeland Security has called the most secure system in the entire country
  • This will dramatically increase the costs of all of our counties to administer elections in the state

In Further Detail: This bill is full of unfunded mandates that will fall on our counties. Counties must maintain our current dropbox structure (as the bill is silent about it), but must create new infrastructure to handle mail ballot requests, massive polling location staffing requirements, and a virtually impossible to meet ballot counting standard. What happens if a county doesn’t count all of its ballots by the end of election day? Considering no state in the entire country gets all of its ballots counted by the end of election day, it seems like a pretty likely occurrence. The bill does not say but clearly the only answer is they do not count. Which would open a major can of constitutional worms the state would likely lose. What happens if a county decides to mess with the process and fail to count ballots it thinks is unfriendly to its political party by the end of election day? The bill does not say. In fact, right now ballots are counted in a centralized location in a system that is a pretty well-oiled machine. That won’t be possible under this bill, so all ballots on election day will need to get counted at the precinct itself. And who thinks the results of the ballots cast before election day are going to stay a secret to all of the politicians in this state and thus likely the media? We have one of the best voting systems in the entire country—it is easy to use (since adopting it we always have one of the highest voter turnout percentages in the country), it is cheaper than running regular elections with polling sites (our costs went down about 40%), and it is extremely secure (0.0027% of ballots cast in 2018 were referred for investigation and conservative groups have found only 9 instances of vote fraud since we adopted the system in 2013). The Department of Homeland Security has called our system the most secure in the country. We were the subject of numerous envious articles in the past year as other states struggled during the pandemic. And perhaps most importantly: Coloradans like our system! Those that aren’t secure with sending a ballot in the mail can use a dropbox. Those that don’t feel good about that either can still in fact vote in-person, including on election day itself, using their mail ballot. Our system does not need this change to satisfy some people who are unhappy at the results of the last election.

How Should Your Representatives Vote on SB21-007

SB21-033 Conservation Easement Working Group Proposals (Sonnenberg (R))

Appropriation: $5 million taken from tax credits for easements this year
Fiscal Impact: One-time loss of $149 in refunded tax credits, rest not yet released

Goal:

  • Properly compensate taxpayers who were improperly denied tax credits between 2000 and 2013 for conservation easements, based on the value accepted by the IRS with some adjustments and create an ombudsperson to handle disputes related to easements that were transferred to someone else.

Description:

The credit due to the taxpayer is based on the value accepted by the IRS, reduced by any amount that was subsequently allowed or reinstated to the taxpayer. Bill provides a process for resolving who gets the credit if it was transferred to another taxpayer. Compensation is limited by number of available unused credits from 2013-2019. If that is not sufficient to pay everyone who is owed money, the ceiling is boosted by 50% and future years are reduced by the same amount (so the total spent remains the same over time). Claims paid out in order received. State must notify every taxpayer who had a claim denied in these years. Claimants have until the end of next year to apply for their credits.

The ombudsperson may be an employee of the state or another professional with knowledge of conservation easement transactions. If the parties cannot come to an agreement with the ombudsperson’s assistance, then it may be referred to an arbitrator for final judgment (state pays for this).

Additional Information:

State must have information on the program and how to apply online by August 15, 2021. Taxpayers applying for compensation must include the following: a copy of the federal tax form used to substantiate the federal tax deduction and if the amount was adjusted, documentation confirming the amount ultimately allowed by the IRS. If more than one person has claim to these credits they can work together. Applicants must attempt to notify anyone who would be eligible for a portion of the credits and anyone who receives this notice has 90 days to file an objection. Objection must state the alternative compensation proposed. Ombudsperson to sort these objections out. State must release funds 30 days after final resolution (or if there was no objection, 30 days after objection deadline expired). Taxpayers have until October 2022 to apply.


Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • The state owes people money, plain and simple, and we must pay them. This is the fairest way to do it
  • Separating the payment issue from the easement program going forward allows us to take of this long-festering problem now while we work on the rest

In Further Detail: The state did great damage to a number of property holders between 2000 and 2013 by arbitrarily disallowing easement tax credits to landowners who were doing everything right on their end. To the tune of more than $144 million over those 14 years. This bill is a bipartisan agreement following careful study of how to remedy that harm and allow the easement program to move forward into a new era that will allow it to serve its mission of protecting our natural resources while rewarding property owners who participate. As for leaving out the rest of the recommendations of the study group mentioned in Arguments Against, we need to make these folks whole now and separating out the repayment issue allows us to finally take care of it. We can tackle the rest of the recommendations separately.

Arguments Against:

Bottom Line:

  • Where is the rest? The bill last year that took the recommendations of the study group had a lot more to it: increased tax credits for new easements, an entire process to investigate abandoned easements.

In Further Detail: We had a bill last year that was derailed by COVID and the resulting budget crisis that was the full recommendation of the bipartisan working group on this subject. It had this repayment as part of it, but that was only half the bill. The rest dealt with increased tax credits from 75% to 90% of the land’s value for new easements and an entire complicated process for dealing with easements that may be abandoned.

How Should Your Representatives Vote on SB21-033

SB21-037 Student Equity Education Funding Programs (Lundeen (R))

Appropriation: None
Fiscal Impact: Not yet released

Goal:

  • Allow parents with children eligible to attend any public school that closes for more than 30 school days at any time to use the per-pupil the school would have received for their child on home-schooling or private school options instead of attending the public school
  • The governing board of any school that is eligible by dint of closure must set up a fund with which to disperse these payments, which are to be made in equal monthly increments. The board must audit a representative sample of parents on this program to ensure they are using the funds as allowed. If it finds they are not, it can commence legal action to recover the money

Description:

Students have to either have been in the school the year before the closure occurred or be in the school district. They can have attended private school or be homeschooled already.

Parents must apply to this program through their schools by June 15th prior to the new school year. Application must include an affirmation under penalty of perjury that they are eligible, a description of the educational services the parent purchased or provided for the student in the past year (if any), and a description of the educational services the parent will purchase or provide with the money.

Schools must approve applications if they determine the child is eligible. Parents can use the money for educational materials, homeschooling, or enrollment in private school. The parent must submit electronic receipts quarterly.

Additional Information:

Schools must notify parents by June 1 of any eligible year (so since this year is eligible it will apply) of this program, including posting information on their website on how to apply. This must include the name and contact number for the contact person at the school for questions, eligibility requirements set forth by this bill, how parents can apply, the amount of money they are eligible for, and how they can spend it (including reporting requirements).

A student using this program must still take annual standardized tests as required by state law, their performance will not count toward their designated school’s statistics, but they are still considered a pupil for the purposes of school funding.


Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • Some parents chose to spend money to try to prevent learning loss when our schools closed, we owe it those that want to continue to do this in fear that it may happen again
  • If a child does not attend a school, that school does not get any money, so the school isn’t losing anything by losing per-pupil revenue for a child that isn’t there
  • The system is designed to promote accountability for spending and has a process to detect and punish cheaters

In Further Detail: When our schools close for long periods of time, the burden falls on parents to try to fill in the gaps, and many try to do so with educational services and products the parents themselves have to pay for. This naturally sets up a have and have-not situation where wealthy parents can more easily keep their children on track. Remote learning produces many of the same problems, although not obviously to the same scale. Some parents may have taken their children out of school entirely so as to keep them learning. All of these parents may want to continue this process to ensure that their kids aren’t hit by these enormous disruptions in the future. It therefore makes sense to ensure these kids can continue to get the education their parents want by using the money the state would have spent on them in public school, and giving it to them instead. The school wouldn’t get the money if the child was not enrolled anyway, so we aren’t necessarily depriving the schools. There is an accountability system to ensure no one is cheating and a mechanism to deal with those that do.

Arguments Against:

Bottom Line:

  • This identifies a real problem and then veers off into a totally different solution: instead of helping parents recoup costs or bridge closure gaps it sends them away from public schools entirely
  • Despite the concern about wealthy versus poor parents, there is no attempt to means-test this program and no requirement that the child ever actually attended public school in the first place: the bill is simply a vehicle to shift money from public schools to homeschooling and private schools
  • Every kid in the state who is school-age will be eligible for this program next year: every single kid who is already homeschooled or in private school can simply grab this handout

In Further Detail: There is a real problem here that the bill identifies. Closures affected families hard, with children losing learning, parents forced to fill-in the best they could, and in some cases, money spent to try to alleviate the harm. But the solution it proposes is simply to pay parents taxpayer dollars intended for public schools so they can homeschool their kids or even send them to private school instead. There is no means-testing to ensure that we aren’t propping up wealthy families who don’t need this, and most dammingly, there is no requirement that the child ever attended the school in the first place. They could have been homeschooled or in private school from the beginning, and still the state would have to subsidize their future schooling outside the public school system. Rather than an attempt to help public school students deal with the unfortunate learning loss and associated harms to the entire family, the bill is an attempt to siphon off kids out of public school altogether, at taxpayer expense. We provide a free K-12 education for all children in the state and that is paid for with our taxpayer dollars, in exchange for which we have the ability to write the rules of the road for these schools and hold them accountable for breaking them. If people do not want to take advantage of this free system, the law allows them to do so. But we don’t have to pay them to do it. And we don’t in any other circumstance: the state doesn’t pay per-pupil funding to parents who homeschool or send their kids to private school. This bill would give a one-time free pass for every parent of a school-age child to change that basic fact.

How Should Your Representatives Vote on SB21-037

SB21-062 Jail Population Management Tools (Lee (D)) [Benavidez (D)]

Appropriation: None
Fiscal Impact: Not yet released

Goal:

  • Ends use of monetary bail for any offenses below the level of class 2 felonies unless the court can find on the record that cash bail is the only way to either ensure the defendant does not flee or does not threaten the safety of others
  • Forbids police officers from performing what is called custodial arrest (arresting someone and bringing them to a jail where they will stay until they get a hearing) for offenses under class 3 felonies and class 2 drug felonies with a few exceptions having to do with imminent danger (see Description for full list). Bill specifically states that no review is required to ensure compliance with this section and it does not create any right to sue for violation of this section or have a case or evidence thrown out of court
  • Officers may issues summons to court with whatever charges are levied unless the alleged crime involved violence (in which case the officer may arrest the individual) or arrest is required by law
  • Encourage sheriffs to actively manage their jail populations to keep them as low as possible, including granting authority to test admission standards based on specific offenses

Description:

For appearing before the court because of failure to appear in court when summoned or violating parole for an original crime that was not a criminal offense, the court must issue a personal recognizance bond—which again means no money involved. Courts may add money in cases of parole violation or any case where failure to appear has happened three times or it finds on the record that the defendant is likely to flee.

The bill removes current law around summons and complaint orders issued by officers to replace it with the bill’s standard. The exceptions to the rule about custodial arrest are: it is required by law, the officer cannot verify the suspect’s identification without arresting them, the officer has probable cause to believe the suspect committed a DUI in the past year, or the offense is a victim’s rights crime (most of these are already class 1 or 2 felonies but those that aren’t deal with sex crimes, abuse, stalking, violating protection orders, crimes against witnesses, and motor vehicle accidents that result in death), involves illegal possession or use of a gun, involves illegal sexual behavior, violates a protection order, deals with a credible threat to a school, or involves eluding police in a vehicle. In the case of the list of crimes, the officer also must record in the arrest document a reasonable suspicion of danger to public safety or unwillingness to stop committing crime without an arrest.

Additional Information:

In its definition of custodial arrest, the bill excludes officers who are transporting a person to a jail facility for reasons other than holding them there (like getting physical evidence such a fingerprints or DNA or executing a blood-alcohol test) and excludes transport to a hospital or behavioral or mental health facility unless the officer intends to put them in jail upon discharge.


Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • We are an innocent before proven guilty society, we should act like it. The high cost of bail (and bail bonds) can be an impossible barrier for lower-income defendants. This means they will lose their job, maybe their housing, and maybe even custody of their children.
  • COVID related actions to limit prison populations have shown this can work
  • Keeping people in prison for no good reason wastes taxpayer money
  • Both of the previous two points extend perfectly to not arresting people and tossing them in jail pending a hearing for no good reason

In Further Detail: It is a bedrock principle of our criminal justice system that we assume people are innocent until we prove that they are guilty in a court of law. We definitely don’t act that in practice. On any given day before COVID a full 1/5 of the US prison population, 450,000 people, are in jail awaiting trial. The vast majority of them don’t need to be there. They aren’t going to flee, they aren’t there for violent offenses or offenses that might pose a danger to others. Instead they are potentially going to have their lives ruined, before being convicted of anything. They may lose their home, their job, even custody of a child. And the threat of this provides significant leverage to prosecutors. A study in Philadelphia found that assigning bail makes defendants 12% more likely to get convicted. Because people are pushed to plead guilty to low level offenses (or even higher ones) so they can get of jail. All of this is of course a massive waste of taxpayer resources. We spent $960 million of state taxpayer money on keeping people in jail last year. And we’ve learned from actions local officials have taken during COVID to minimize the number of people in jail that this can work. The state’s jail bookings fell by 58% as a result. We should only use monetary bond when it is actually necessary, not just as a knee-jerk reaction to any arrest or based on whatever the prosecutor wants. And bond should never be leveraged into getting a guilty plea. Prosecutors are perfectly able to argue in court that any particular case should be granted special exemption due to risk and judges are free to accept those arguments. Police officers are free to use their discretion in the same manner. As for the approach taken last year (mentioned in Arguments Against), a screening tool is a costly mechanism to essentially land in the same place

Arguments Against:

Bottom Line:

  • Judges already have discretion to deny monetary bail demands from prosecutors, we should let them keep it
  • Public safety and welfare come before concerns about money, so we shouldn’t come into this looking to find savings
  • We can use time limits on arrest detention prior to a hearing to cut-down on the time people spend in jail after being arrested
  • People understandably don’t want to lose their bail money, so it is a valuable tool for getting people appear in court—as is simply arresting them

In Further Detail: Our system already gives judges discretion on bail—we should allow them to keep using it rather then put into place blanket rules that are difficult to overcome. Public safety and welfare have to come before all other concerns, including the state spending money to keep people in prison before trial. So we shouldn’t come into this looking to save money. If we need to spend $960 million a year to keep Coloradans safe, then that’s the price tag. On the arrest vs. summons angle, officers can already issue summons for misdemeanor offenses rather than utilizing arrest. This bill changes this to a requirement then heaps a whole ton of judgment calls on officers relating to public safety. A different way to approach the arrest/detention problem is to set a time limit on detention prior to getting a hearing, which has been a goal of some in the legislature for a few years and is likely to appear as a bill at some point this year. Just 48 hours is not going to ruin anyone’s life and provides enough time for the system to determine the true nature of potential threats to public safety. On the failure to appear angle, the threat of losing money is a valuable tool for getting people to appear in court. This isn’t like missing an appointment at the dentist. The entire court system has prepared for the proceeding the defendant knew about and missed. This not only wastes time, but wastes resources. Again, judges have discretion in this area, let them use it.


Bottom Line:

  • This diverges widely from the approach taken just last year to this same topic, which was to develop a pre-trial risk assessment screening tool to determine who does and does not need monetary bail

In Further Detail: Last year a bill was introduced that was also about reducing use of monetary bail, but instead of blanket bans and vague notions of threat, it required the state to develop an actual screening tool for everyone to use, partially to prevent a patchwork of rules and systems from developing throughout the state. It also had built-in anti-bias mechanisms to ensure that non-monetary bail was being applied equitably across the entire system. We need to have an approach along those lines.

How Should Your Representatives Vote on SB21-062