Jeffrey J. Clayton

Jeffrey J. Clayton

Senate Bill 62 is legislation built upon a false premise — never a good idea when lawmakers are trying to sell meaningful change to their constituents. Pushed as a solution by the ACLU of Colorado to reduce jail populations, the organization holds that despite the COVID-19 pandemic, crime was not a problem this past year. Despite large spikes in crime experienced in some jurisdictions, they contend it has nothing to do with the fact that there were simply more criminals on the street.

Some Colorado legislators have embraced this unsubstantiated notion and have offered a dangerous bill that will depopulate jails by not arresting serious offenders and instead giving them a ticket and summons to appear in court. These individuals would be given presumptive releases through personal recognizance bonds, meaning everyone would get out of jail free.

Bear in mind that SB 62 is not about "sleeping on a park bench" types of offenses. Rather, it encompasses all felony class 4, 5, 6 offenses in addition to all misdemeanors.

Law enforcement officials and groups, including Boulder Chief of Police Maris Herold, the Colorado Association of Chiefs of Police and the Colorado Fraternal Order of Police, have come out strongly against restricting the power of officers to make arrests. Opposition has also come from numerous business owners, who noted that their employees have been the targets of assault and their companies subjected to an onslaught of property crimes as a result of the revolving door of arrest and release.

When the ACLU first began lobbying for SB 62, it ran into opposition from law enforcement, which focused on maintaining the power of officers to arrest in high-risk cases. Their response was the creation of numerous exceptions to gain favor with prosecutors and sheriffs’ associations. Most notable was an exception allowing officers to make arrests in cases where the law previously required them to do so. This directly addressed Colorado law which called for the mandatory arrest of perpetrators of domestic violence.

The number of exceptions grew longer. Added to the "okay to arrest" list were serious crimes contained in the Colorado Victims’ Rights Act, including sexual offenses and crimes involving the illegal use or possession of a firearm.

Thus, despite perpetuating the notion that the majority of crimes did not warrant defendants being incarcerated, those behind SB 62 conceded that, just maybe, an officer should be given a little discretion as to whether they should arrest a suspect and hold them in jail.

All logic behind SB 62 crumbles away when it comes to setting bail involving these same cases. As written, it would set the presumptive bail in all felony 4, 5, 6 and misdemeanor crimes at zero dollars. That is, officers would have the unfettered discretion to arrest, but when it comes time to see a judge to decide pretrial release, their discretion vanishes.

If SB 62 passes, a huge number of individuals charged in mandatory domestic violence arrests and VRA cases, as well as sexual offenses and illegal possession or use of firearm cases would be eligible to be set free on a personal recognizance bond. While there is a narrow exception in the bill that might result in a small percentage of defendants having their bail set, the reality is that the presumption will not be overcome in the vast majority of cases.

It is also important to note that the creation of SB 62 completely circumvented the Colorado Commission on Criminal and Juvenile Justice, despite the fact that it had designed and approved every major reform of the state’s pretrial system over the past 15 years.

While reducing the jail population might be considered a laudable goal, Senate Bill 62 is poorly conceived. It takes away the power of law enforcement officers to arrest individuals charged with dangerous crimes and then turns them loose back on to the streets on their "personal promise" to appear in court — a guaranteed recipe for disaster. Legislators working to achieve meaningful criminal justice reform is one thing, but handing out "get out of jail free" cards is not the answer for Colorado.

Jeffrey J. Clayton is executive director of the American Bail Coalition. He is a licensed attorney based in Denver and has served a variety of clients in legal, legislative and policy matters. 

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