Updated on June 11: Senate Bill 273 failed by a vote of 9-4 in the House Finance Committee on May 7.
A proposed law that puts new limits on when law enforcement officers can arrest people and when judges can order them held in jail with a cash bond is heading towards the full state Senate for a vote.
This isn’t the first time this session state lawmakers have weighed the merits of a jail depopulation proposal.
An earlier bill would have done much the same thing, though it included some low-level felonies, like auto theft. Aspects of that bill, including the auto theft provisions, proved unpopular, even among some Democrats, and so backers scrapped it and started anew.
“For a variety of reasons … and significant misinformation and mischaracterization of that bill, I’m here today to reset that conversation with a new bill,” said state Sen. Pete Lee in testimony in front of the Senate Judiciary Committee, earlier this month.
Lee described the measure as “a public safety and social justice bill,” one aimed at “keeping people accused of low level crimes and those who are not a safety risk out of jail, and ensuring that fewer people are incarcerated pre-trial because they don’t have money to pay bond.”
Reforming bail bonds and preventing 'unnecessary' arrests
The proposal requires judges to offer personal recognizance, or no-money bonds, on all misdemeanors and a wide range of low-level drug and felony crimes. It does give judges discretion if they believe the suspect might flee prosecution or threaten the safety of another.
Backers of this change, including the American Civil Liberties Union, say the justice system is tilted in favor of those who have the money to pay to get out of jail for low-level crimes. They argue, if the measure of whether someone stays locked up comes down to being able to post a cash bond or not, the system is prioritizing wealth, not public safety.
Democrats hold a five seat majority in the Senate. With Republicans united in opposition to the bill, backers can only afford to lose two Democratic votes. So they're trying to reassure concerned moderate senators that this new version is a compromise. The bill passed its preliminary Senate vote Wednesday afternoon and will likely get a final, recorded vote Thursday. If it passes, it will head to the House.
In addition to ensuring more people who are jailed are released on PR bonds, the bill also aims to avoid many arrests in the first place.
Officers are instructed to write tickets instead of taking someone in on all misdemeanors, traffic offenses, petty offenses, drug petty offenses and municipal offenses. There are some exceptions, including if an officer is unable to verify a person’s identity absent an arrest.
Arrests would still be allowed if the offense falls under the Victim Rights Act, involves illegal possession of a firearm or constitutes unlawful sexual behavior or failure to register as a new sex offender.
To bolster their opposition to the proposal, law enforcement officers released a long list of crimes that would no longer be jail-eligible, including concealing a death, cruelty to animals, aggravated motor vehicle theft if the value of the car is less than $1,000 and some arson charges.
“If this bill passes, there could be numerous crimes someone could commit and never have to go to jail,” said Colorado Springs Police Chief Vince Niski in Senate testimony. “This completely takes away our discretion in dealing with repeat offenders … And, unfortunately, this represents thousands of crime victims.”
Supporters of the proposal say low-level arrests disproportionately target people of color and often escalate.
But lined up behind this bill are criminal justice advocates, some crime victims and people whose lives were derailed after going to jail for low-level offenses.
“The harm reduction that this will achieve will eventually save lives and reduce the trauma that is associated with needless arrests,” said Denise Maes, public policy director for the ACLU of Colorado. “This bill asks us to rethink the status quo.”
Maes noted the bill does allow officers leeway to make an arrest if they feel it’s in the interest of public safety. And that people would still face arrest for sex offenses, DUIs, illegal possession of a deadly weapon and other dangerous crimes.
When it comes to low-level arrests, backers of the bill point to real-life examples of people picked up for minor crimes and then the situation escalated — including Michael Marshall and Marvin Booker, two Denver men arrested on low-level charges who died in jail at the hands of deputies.
“These arrests … disproportionately involve people of color and they often escalate into violent confrontations and in this regard this bill is both good for police and for the community,” Maes said.
Catherine and Javier Mabrey shared their own harrowing story with state senators at the recent hearing.
Javier recalled the day in his childhood when a police officer came to get him from school, because his mom had been jailed for not appearing in court on a barking dog ticket.
"This issue is personal for me; I will never forget the night my mother did not pick me up from school,” Javier Mabrey, now a lawyer and state House candidate, said.
Catherine Mabrey tearfully testified she was held on a $500 bond — something she couldn’t afford to pay at the time.
Opponents like law enforcement and prosecutors say the bill would jeopardize public safety.
But many law enforcement officers and some prosecutors warn that the bill goes too far, and liberalizing when they have to release people — even for low-level offenses — would jeopardize public safety.
In addition to the new non-jailable offenses, there is another list of crimes — including some low-level felonies — that require a judge to issue no-money bonds for suspects once they’re jailed.
There are some exceptions, but law enforcement says this provision is worrisome because without any money attached to getting out of jail — even for people with the ability to pay — there is little incentive to return to court and to stop committing crimes in the first place.
“If this bill were truly just about low-level offenses, I would join you in supporting it,” said 18th Judicial District Attorney John Kellner. “There are things that are dramatically dangerous to the public. I’m not just talking about a ‘urinating in public’ case. We’re talking about [mandated PR bonds for] stalking … sexual assault... unlawful sexual contact by force … sexual exploitation of a child.”
One Colorado Springs municipal judge said that he worried the proposal would make it even easier for people to blow off court dates.
Judge HayDen William Kane II warned lawmakers tha his own experience presiding over a municipal court should be a warning of what could happen if the bill is enacted.
Under current rules, none of the people who appear before him for violating local ordinances are eligible for jail. And Kane said that’s led many of them to skip court completely.
“Word on the street was there are no consequences for not showing up for municipal court,” Kane said. “(We’ve seen) about a 30 percent drop in the amount of people who are appearing in municipal court and that’s concerning. This would codify that ‘automatic PR bond’ world and I worry that the numbers could become worse than that. Today … we had 38 people scheduled to show and I had 10.”
Editor's Note: This story has been updated with the result of Wednesday's vote and to correct an editing error that mischaracterized the size of the Democratic majority in the Senate.