If Sen. Pete Lee, D-Colorado Springs, has his way, Colorado could become the fourth state in the nation to severely limit the use of cash bail.
It's part of a nationwide effort to address an inequity in the criminal justice system, he said, one in which those who can afford bail get out and those too poor to afford it sit in jail, sometimes for months.
Lee's Senate Bill 21-062 is a revival of an effort from 2020 that went by the wayside due to the pandemic. While the 2020 version had bipartisan support, Lee's 2021 bill so far has only Democratic backing.
The Senate Judiciary Committee worked late into the evening Thursday, taking seven hours of testimony with both sides touting victims' rights as the reason to either reject or support the bill.
SB 62, as introduced, gives law enforcement the authority to issue a summons in lieu of an arrest for a variety of minor offenses, such as traffic charges, misdemeanor offenses and low-level felony or drug offenses. It also prohibits courts from issuing a cash bail for limited misdemeanor or low-level felonies unless the person is believed to be a flight risk. The court would then issue a personal recognizance bond, unless the defendant has failed to appear three previous times.
The bill follows a 2019 law that eliminated cash bail for petty offenses below the level of a misdemeanor.
SB 62 was nearly universally panned by chiefs of police from all over the state, even in the most liberal enclave of Boulder.
Lee, however, pointed to one of the state's most notorious cases that illustrate why cash bonds disproportionately affect the poor, people of color and those with mental health issues.
On Nov. 7, 2015, Michael Marshall, a Black resident of Denver, was arrested by Denver Police for trespassing, a misdemeanor charge. He couldn't post the $100 cash bond and sat in jail for nearly two weeks, in a pod for inmates with mental health issues. Four days later, Marshall began pacing in the unit and Denver Sheriff's deputies wrangled him to the floor, with one putting a knee to Marshall's lower back.
Marshall was handcuffed but lost consciousness and vomited, according to the report of the city's Independent Monitor. He aspirated the vomit and lapsed into a coma. Marshall died on Nov. 20. The death was ruled a homicide; the city of Denver later paid Marshall's family $4.65 million. Seven deputies faced discipline but only two were punished.
"There are scores of cases; people held for minor offenses who can't get out because they don't have $100," Lee said. Jails should not be warehouses for people experiencing homelessness, drugs or failure to appear, Lee told the committee.
During the early months of the pandemic, public defenders raised concerns over keeping the poor in jail because they are at a higher risk of exposure to COVID-19. Lee said 80% of counties had increased their use of personal recognizance bonds during the pandemic. Any assertion that these bonds increase risk to public safety are erroneous and not consistent with the evidence, he added.
In October, an American Civil Liberties Union of Colorado report said the state jail population dropped 46% between March and May 2020, about 6,000 fewer jailed, saving taxpayers $210 million.
"While there has been a reported uptick in some violent crime in a few Colorado cities, that uptick has not been attributed to jail depopulation, but instead to multifaceted social factors related to the challenges of this moment," the report said. Lee said those factors include poverty, lack of education and economic opportunity, joblessness and racial injustice.
"Perhaps there is a silver lining with this tragic pandemic," Lee said. "A grand experiment across Colorado, that our state and country has an addiction to incarcerations that is not making us safer."
Police chiefs and other officials pointed to substantial spikes in violent and other crime, although few tied the increases to the use of personal recognizance bonds.
According to Aurora Mayor Mike Coffman, sheriffs last year adopted a temporary policy of issuing summons on motor vehicle theft cases to limit the number of inmates held in jails during the pandemic. His city has since seen a 70.6% increase in motor vehicle theft. That tracks with an increase in auto thefts across seven metro jurisdictions, he explained, noting that "thieves are learning they won't go to jail."
Robert Southey, a vice president with Bankers Insurance, said the law is a solution in search of a problem. The existing law already allows for the use of summons in lieu of an arrest, he said. "Why would we eliminate reasonable guardrails" around that discretion, such as no prior felony arrest in the previous five years, no use of deadly weapons or outstanding warrants. Southey claimed that after a bail reform experiment in New York, crime began spiking. "Lack of monetary bail led to a lack of accountability," he said.
Several city police officials testified on behalf or the Colorado Association of Chiefs of Police, which oppose the bill. Todd Reeves, a deputy police chief in Westminster, complained the ACLU report was flawed, given that the entire state was on lockdown during the reporting period. "Rarely do you see such united opposition" to a bill, added Steamboat Springs Police Chief Cory Christensen.
Boulder Police Chief Maris Herold told the committee that when the community thinks police aren't listening, they don't believe the police can protect them. There's been an explosion on social media sites of people talking about arming themselves, Herold said.
Dave Hayes, the chief in Louisville, called the bill "anti-victim."
Other crime victims testified about their ordeal with the criminal justice system, but none linked the use of personal recognizance bonds to their crimes. "Criminal justice reform is about offenders, not about victims," said Amanda Terrell-Orr of Colorado Springs.
"This bill falls short of treating victims with dignity and respect," said another witness.
Three district attorneys, however, testified in favor of the bill. The Colorado District Attorneys' Council is officially neutral.
Denver District Attorney Beth McCann said the bill is a "nice balance between people who need to be held in jail and those who shouldn't be." She acknowledged that violent crime is also up in Denver but she did not have data showing that those crimes are being committed by people who were released on low-level or personal recognizance bonds. "This bill will allow us to hold those people in jail who are likely to commit another crime," such as with firearms, domestic violence or DUIs, which was added to the bill through an amendment.
The San Luis Valley is home to three of the state's four poorest counties, according to District Attorney Alonzo Payne. "Cash bail systems prioritize those with money," he said.
Jefferson County Sheriff Jeff Shrader also spoke in favor with amendments, wanting peace officers to have discretion to arrest for any felony crime. The County Sheriffs of Colorado organization also is neutral on the bill, according to lobbyist Polly Lawrence, a former state representative.
The notion that the need for a cash bond keeps people from committing crime is not a firm ground to stand on, said Denise Maes of the ACLU, who said much of the opposition testimony appeared to be in favor of keeping the status quo. "We have an addiction to jails and prisons" that has not kept society any safer, she said. The bill does not change anything related to high level felonies, added Rebecca Mitchell, also with ACLU.
Others testified that keeping the poor in jail causes them to lose jobs and homes, and that impacts their families.
Natalia Marshall, representing the family of Michael Marshall, told the committee that far too many people are in jail because they are homeless, suffer from mental illness or addiction or can't afford bonds. "I support this bill because of my uncle, Michael Marshall. He was a joyous person. He should never have been arrested." Some say to support the status quo, she said. "The status quo is killing us."
The bill was amended to add in language requested by opponents, but it didn't change the mind of Republicans on the committee. SB 62 passed on a 3-2 party-line vote and is headed to the Senate Appropriations Committee, due to its $93,000 general fund cost.