DENVER — Colorado lawmakers are considering a bill that would significantly reform pre-trial arrests and confinement in the state.
Senate Bill 62 promises two major changes; first, the bill would prohibit peace officers from arresting someone who commits low-level crimes. Those crimes include:
- A traffic offense
- A petty offense
- A municipal offense
- A misdemeanor
- A class 4, 5 or 6 felony
- A level 3 or 4 drug felony
Instead of arresting the suspect, the officer would instead issue a court summons.
The bill allows for exceptions that would allow officers to arrest someone who cannot verify their identity, who is considered a threat to community safety, who shows a clear unwillingness to stop their criminal behavior, or who has committed a victims’ rights crime, among other things.
The second portion of the bill restricts the types of bonds courts can offer to these defendants. Instead of issuing a surety (a.k.a. cash) bond, courts would be required to issue personal recognizance (PR) bonds for people suspected of committing these offenses.
By doing this, more people would be able to be released from jail while awaiting their trial date.
The bill does allow for some exemptions to allow courts to use cash bonds if the defendant poses a flight risk or a safety risk to the community.
Further, the bill allows defendants to fail to appear for their court appearances up to three times before they are issued a cash bond.
Finally, the bill allows sheriff's departments to actively manage their jail populations to protect community safety while limiting the number of people in custody.
Time for reform
Supporters of the jail reform bill believe the changes are necessary and long overdue.
“We should reserve our jails for people who create a risk to people in the community,” said Sen. Pete Lee, D-Colorado Springs, the bill’s primary sponsor.
Over the past year of the pandemic, jails have already been working to reduce their populations in order to allow for better social distancing. Part of the changes included early release for some prisoners and issuing court summons and more PR bonds.
Lee would like to see some of those changes codified into law so that the practices will continue after the COVID pandemic ends.
“We are addicted to incarceration. We incarcerate more people in Colorado than any other country in the world per capita,” he said. “We don’t want people who have committed low-level offenses, petty offenses, municipal offenses brought into jail.”
Lee has been working on criminal justice reform bills for years, including several during the current legislative session. He doesn’t believe the current incarceration system is working well and is rather being used to house people who need help.
“Putting people in jail who are mentally ill or addicted to drugs doesn’t solve mental illness or drug abuse problems,” Lee said. “What we’re trying to do is move our system toward a system that effectively treats rather than incarcerates.”
A different version of this bill was introduced last year and had bipartisan support, but failed to gain any traction once the pandemic hit. This time around, the bill has strong Republican opposition.
Meanwhile, the American Civil Liberties Union of Colorado believes this bill will protect the key tenet of the American judicial system by providing more equal access to bail.
“It really preserves and keeps intact the principle that one is innocent until proven guilty,” said Denise Maes, the public policy director for the ACLU of Colorado. “People do need to understand that there are a lot of people in our jails who are innocent, pure and simple.”
Maes says the current system favors people who are affluent enough to pay bails to be released from jail while placing a disproportionate burden on low-income defendants.
“The only reason why (defendants) are there is because they don’t have the money, the toll, to pay the ransom to get out,” she said.
Beyond having to pay for bail, defendants’ lives, jobs and families may also be affected by their incarceration, making it even more difficult to pay for a cash bond.
A report released by the ACLU found that the state experienced significant savings by incarcerating fewer people during the pandemic.
According to the report, the state’s jail populations dropped by 46% between March and May of 2020, equating to roughly 6,000 fewer prisoners.
On average, the state’s jails were kept at 47% capacity during the pandemic compared to the 81% capacity during normal times.
If the decreased levels were sustained, the ACLU estimated the state would see a savings of $210 million per year.
"There’s no question that this particular piece of legislation is bold, it’s positive and it’s real pre-trial reform. And it’s long overdue,” Maes said.
The opposition to reform
Opponents of the bill believe it could set a dangerous precedent for the state that perpetuates crime.
“It doesn’t do anything for community safety. As a matter of fact, it makes communities less safe,” said Sen. John Cooke, R-Greeley, the former sheriff of Weld County turned lawmaker. “It’s pro-criminal. I wouldn’t say it’s anti-victim, but in a way it is.”
Cooke is particularly worried about the class 4 and 5 felonies that would require a court summons instead of an arrest under the bill's current language, and says those classes of charges cover a wide range of crimes.
Class 4 felonies include identity theft, criminal trespassing, car theft, criminal extortion, internet luring of a child, arson, burglary, bringing contraband into a prison, bribing witnesses or juries, buying a gun illegally and more.
Class 5 felonies include menacing, property theft, voting illegally, stalking, inciting a riot, participating in terrorist training activities, animal fighting, etc.
Class 6 felonies are considered the lowest level and include animal cruelty, failing to register as a sex offender, coercing someone into human trafficking, public indecency and more.
The bill does exclude victims’ rights crimes, such as domestic violence and sexual assault, meaning suspects could be arrested and given a cash bail.
Cooke says he doesn’t believe that the state has a jail over-incarceration problem, but rather a crime problem that is leading to high jail rates.
He also doesn’t believe the changes are necessary since sheriffs already have the authority to limit who comes into their jails based on overcrowding conditions.
Others, like Aurora Mayor Mike Coffman, say they are also concerned with the bill.
“I fully understand why this policy has to be temporarily in place because of public health concerns. I get that. But what I don’t understand or what I don’t support is saying there were no consequences to doing that and so let’s make it permanent. There were consequences to doing that,” he said.
Coffman says while there was an initial drop in crime during the pandemic, the crime rates in Aurora and other places like Boulder have now increased. Auto theft, for instance, in Aurora was up 70% from 2019 to 2020.
According to data from the Colorado Bureau of Investigation, the state experience a nearly 40% rise in car thefts in 2020 as well as increases in burglary, property crime, fraud, theft and more.
“This is just, I think, an invitation for criminals to continue the contact without any interruption of serving time — assuming they even show up. This is a catch-and-release program where for serious crimes you’re only given a court date,” Coffman said.
While it’s unclear whether the jail limits during the pandemic have contributed to the increasing crime, Boulder Police Chief Maris Herold says now it not the time to experiment with jail reform.
Instead, she is calling for the state to study the effect the jail changes made during the pandemic have had to determine whether they are helping or hurting crime rates before moving forward with new legislation.
“We do not know what’s happening because of a crazy year with this pandemic, so why in the world would we want to pass major legislation right now? It’s not the right time. There’s other things we can focus on,” Herold said.
A group of 17 law enforcement agencies from the 5th Judicial District recently penned a letter to their citizens explaining their opposition to the bill and asking residents to reach out to their lawmakers.
Another 19 police chiefs and sheriffs from the 18th Judicial District wrote a separate letter also expressing concern, saying the bill sends the wrong message at the wrong time and contending that the bill would limit the ability of officers to enforce laws. The letter alleges that no chiefs of police were involved in the drafting of the bill or involved in stakeholder discussions before it was introduced.
The Colorado Association of Police Chiefs also opposes the bill, writing in a letter that they see Senate Bill 62 as anti-victim and anti-community safety.
A Family’s take
The family of Michael Marshall believes if these changes would have been in place when he was arrested, he would still be alive today.
Marshall died in 2015 after being arrested by Denver police for trespassing at a motel in which he was living. Marshall had called the police on himself after losing his bible, was inconsolable when police arrived and was taken into custody for trespassing and disturbing the peace.
Both of the crimes are considered minor and were non-violent.
“He was being held for a total of five days, but he was being held on a $100 bond,” said his niece, Natalia Marshall.
The family did not know that Michael was in jail until they started calling around and trying to find him. During his detention, Michael was not given his medications, had a psychotic episode and was thrown to the ground and restrained by deputies.
He eventually choked on his vomit, went into a coma, was taken to the hospital and later died. Attorneys for the family won a $4.6 million settlement with the city of Denver over Marshall's death.
Natalia doesn’t believe her uncle should have ever been in jail, but should have instead been offered help.
“There was no reason for him to be in jail in the first place. They could’ve given him a fine. They could’ve called family members. They could’ve taken him to a mental health facility — anything — but he definitely did not deserve jail,” she said.
She believes Senate Bill 62 would give defendants more of an opportunity to find and make use of community resources for their addictions or mental health needs since they would have access to them rather than being housed in jail.
She also believes it would force police officers to take a step back and really assess a situation rather rushing to arrest a person. More than anything, she hopes this bill will spare people like her uncle from long jail stays on small bonds.
Cautious Support
At first, Denver District Attorney Beth McCann was opposed to Senate Bill 62. However, after some changes to allow law enforcement to arrest people for crimes involving victims, McCann testified in favor of the legislation during its first committee hearing.
“I think this bill is attempting to address that in a way that protects community safety but also acknowledges that we often have people in jail who are awaiting trial that don’t really need to be there,” she said.
The Colorado District Attorney’s Council has taken a neutral position on the bill.
Over the course of the pandemic, McCann says Denver has looked at early releases for people who have served the majority of their sentences or who were pregnant, elderly, etc. as a way to limit jail populations.
The Denver DA’s office also took a closer look at the kinds of arguments they would make for bonds and holding people before their trials or dispositions, agreeing to more PR bonds so that more people could be released. They also agreed to lower cash bonds more often than they ordinarily would have.
While this was happening, the DA’s office made note of each case and is now in the process of evaluating the data to understand whether the defendants who were offered lower cash bonds or PR bonds are appearing for court, committing new crimes, etc.
Denver has also experienced an increase in crime, but McCann says it unclear whether that’s related to the pandemic jail changes.
“One of the biggest concerns is if you have a lot of money, you can make your bond. And if you don’t, you can’t, and that isn’t really the way bond is supposed to work,” McCann said. “I think the courts and the criminal justice system as a whole have been really trying to analyze how do we get a more fair system.”
McCann likes the idea of issuing a felony summons in some low-level criminal cases rather than the automatic arrests. Even before the bill, the city had created a committee to consider whether issuing more felony summonses was a better approach.
Among the changes she had fought for in the original bill: a change to the failure to appear portion saying that if a civilian witness was subpoenaed for the hearing or if any witness shows up and the defendant fails to appear, a cash bond could be issued.
A second change allowed for a suspect to be issued a cash bond for a probation violation if they didn’t show up to treatment for either sexual assault or domestic violence.
There are still a couple of areas of the bill McCann says she would like to see amended, such as wanting officers to be able to arrest someone for car theft. But overall, she believes the bill is the right move for the state.
“Certainly, there are plenty of people who need to be in jail, but we’re not putting those people in jail who are going to get out on bond anyway because of the nature of the crime,” she said.
The difference in bonds
If Senate Bill 62 passes, it could have a significant impact on the bail industry in the state.
Jeff Clayton, the executive director of the American Bail Coalition, doesn’t think the bill would eliminate the bail industry in the state but says it would significantly reduce it. He insists bonds play an important role in the criminal justice process and said reverting to only PR bonds would affect that process.
“A PR bond is simply a promise to appear, whereas if you’re required to post what’s called a cash bond or a surety bond in Colorado, then there’s some financial backing to that bond that guarantees your appearance in court,” Clayton said. “Which essentially would require a third-party or the defendant to post some property to have some skin in the game.”
When that happens, Clayton says whoever put up the financial backing, whether it’s a bondsman or family member, will put pressure on the defendant to make their court dates.
Even in normal times, Clayton describes the cash bond system as a mixed bag; sometimes defendants show up to court and other times they don’t.
If a defendant uses a bond company and fails to appear, bail agents would try to track them down and arrest them. Bail agents arrest roughly 3,000 defendants who fail to appear each year in Colorado, according to American Bail Coalition data.
The part of the bill he is particularly concerned about is the failure to appears.
“You can just thumb your nose at court three times and say, 'I just didn’t feel like coming,' and essentially there’s nothing they can do to you. And that’s just going to slow down the system and delay justice for victims. That’s a bad standard,” he said.
Each time a person fails to appear, an arrest warrant would be issued. The defendant could be detained and booked but would then need to be re-released on another PR bond at least two more times before judges would have the discretion to issue a cash bond.
Maes, with the ACLU, contends that a loss of freedoms from an arrest after failing to appear is punishment enough and that cash bonds aren’t necessary.
Still, Clayton believes judges need to be able to have discretion over the bond system.
A big fight ahead
Senate Bill 62 is easily one of the most-discussed bills of the 2021 legislative session so far.
It has elicited hours of passionate testimony, letters, a tit-for-tat of opinion pieces in local newspapers and more. It has also split lawmakers.
If passed, the bill would result in the biggest change to Colorado’s jail practices in years. However, it faces a major fight ahead as it makes its way through the legislature.
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