SB21-273 Pre-trial Reform (Lee (D), Moreno (D)) [Benavidez (D), Bacon (D)]

KILLED BY HOUSE COMMITTEE

AMENDED: Minor

Appropriation: None
Fiscal Impact: Going to be a net positive, but no estimate made on reduction of prison population so cannot estimate

Goal:

End monetary bail for offenses below class 4 felonies unless public safety or flight is a concern. Require personal recognizance bonds instead of monetary requirements for failure to appear in court (except for repeated failures or witness interference) and violation of probation (except for repeated violations or risk of flight or failure to do mandated treatment). Forbid police officers from arresting someone and bringing them to jail for anything below a felony except in very specific instances. Encourage sheriffs to keep their prison populations as low as possible.

Description:

Ends use of monetary bail for any offenses below the level of class 4 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. The bill does not prohibit the use of pre-hearing release policies that require monetary payment for release (this would be before a judge issued a ruling).

Courts must also issue personal recognizance bonds when a defendant fails to appear in court when scheduled unless the failure occurred when a witness was prepared to testify, the failure was for the purpose of interfering with or deterring witness participation in the case, or the defendant has failed to appear two one or more times. Personal recognizance bonds must also be issued for failure to comply with probation when the underlying case is not criminal unless the violation was for court-ordered treatment related to a sex offense or domestic violence, the defendant already had probation revoked for failure to comply in the case, or the court finds the defendant is likely to flee prosecution.

Citizenship status is not alone evidence of future intent to flee nor is simple past non-appearance in court.

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 the felony level unless it is required by law, the officer cannot verify the suspect’s identification without arresting them, the offense is a DUI, the offense is a victim’s rights crime (most of these are already felonies but those that aren’t deal with sex crimes, stalking, violating protection orders, and crimes against witnesses) the offense includes an element of illegal possession or use of a deadly weapon, the offense is a sexually-related offense, the offense is a violation of a extreme risk protection order, the offense is a credible threat to a school, the offense is a class 1 misdemeanor or misdemeanor escape from prison and the suspect has been charged or convicted with the same offense more than twice in the past six months, the offense is cruelty to animals, or the offense is eluding police in a vehicle . 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.

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. Requires each county jail to submit an annual report to the state with their daily average population, highest one-day population count, and number of inmates who have one previous conviction and number with two or more previous convictions. Each judicial district must also submit an annual report to the state with the number of failures to appear in the year, number of personal recognizance bonds issued for both misdemeanors and felonies and number of cash bonds for both categories, number of defendants who appeared based on summons, number of failures to appear for someone on a personal recognizance bond, and number of people on personal recognizance bonds who had new and unrelated criminal charges filed against them while out on bond.

After a reconsideration hearing or denial of one for bond conditions, either side may seek review of the court’s order by filing an appeal in appellate court. Petition must be filed within 3 days and include transcript (unless that is not available then an audio recording). Opposing party has 7 days to respond unless additional time is allowed by court for good cause. Appellate court can remand back to trial court if it finds inadequate justification for decision, order modifications of bond, order modifications and another hearing, or dismiss the petition. This appeal does not stay the underlying criminal proceedings.

Creates a working group to study and propose statewide legislation to safety increase community response instead of law enforcement engagement for lower-level offenses and calls for service where no criminal conduct is alleged. This must include welfare checks, mental and behavioral health crises, homelessness, substance abuse, traffic offenses, municipal offenses, drug offenses, and lower level misdemeanors and felonies that do not create an immediate safety threat. Report due by February 2022.

Additional Information:

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
• Half of all arrests in the state are for non-violent crimes where there is no threat posed to public safety and it is these seemingly low-level interactions that have turned deadly far too often, since 2017 the majority of law enforcement killings in Colorado began in response to a low-level alleged offense, traffic violation, mental health call, or situation where no crime was alleged
• 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. And when it comes to arrests instead of summons, 71% of all arrests in Colorado are for non-violent crimes that pose no threat to public safety. These very interactions are the beginning of many horrible stories about people dying at the hands of police. The majority of law enforcement killings in Colorado since 2017 began in response to a low-level alleged offense, traffic violation, mental health call, or situation where no crime was alleged. George Floyd was arrested on suspicion of using a counterfeit $20 bill. Elijah McClain was stopped because someone thought he “looked sketchy” and called police. Jack Jaquez was followed home because a cop thought he was a burglar. Eric Garner was approached on suspicion of illegally selling cigarettes. 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 46% as a result and are still down 35%. That level of decrease over an entire year would save us $170 million. 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. 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
• The bill provides no discretion for the officer to arrest someone if they feel there is a danger to public safety
• 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 and completely removes the ability for officers to exercise their judgment to protect public safety (and their own). 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.

Bottom Line:

• George Floyd was suspected of committing a felony, not a misdemeanor. The first version of this bill during this session including low-level non-violent felonies. This bill should too