Bonding bill would interfere with the rights of all Coloradans, says ACLU

The ACLU of Colorado says a bail bonds bill targeting illegal immigrants interferes with the constitutional rights of all Coloradans.

Colorado State Rep. Mark Barker, R-Colorado Springs, said his bill, which would remove current exemptions allowing bail bond agents to reclaim their bond if an immigrant is found to be illegally in the country and is removed, will help to inform courts and bonding agents of potential flight risks while creating greater accountability.

“The whole idea behind it is just to clarify that everybody is notified and they can make informed decisions,” Barker said.
“It is to make the system work. If [illegal immigrants] are skipping out, and the bondsman is not informed then they are not able to make a decision. If the judge is not informed, they are not able to make a decision and use that as a part of the decision-making process. Not everybody that comes before them is obviously in violation of the law. They could be from England, New Zealand, Canada. It might not be obvious.”

Current law states that bond agents are exempt from forfeiture of bond money if their client is removed from the country before reaching trial. However, the bill, HB11-1088, removes that exemption by asking bail bond agents to execute a waiver stating they understand that if a defendant is removed from the country the bond is forfeited to the state.

Removing the exemption, according to Barker, was in part a matter of fairness. He said that a mom posting bail for her kid that was deported could lose her house, a bail bond agent does not currently have the same risk.

Barker said that in removing the exemption it is only fair to compel the investigating agencies to inform the bondsman of the potential risk associated with posting bail for someone who may be subject to deportation.

While it is up to immigration courts to decide whether a person is in the country illegally and deport them, the bill requires the investigating agency in charge of an arrest to inform bondsmen of the presumed illegal status of an individual seeking bond.

The bill also requires the courts to take into consideration that a person has been determined on reasonable grounds to be illegally in the country when setting bail.

The Colorado ACLU says the bill would likely restrict access to constitutionally mandated bail based on untrained law enforcement officials’ presumptions of a person’s legal status.

“This quite obviously interferes with an individual’s access to their constitutional right to bail.” Rosemary Harris Lytle, communications director for the Colorado ACLU, told The Colorado Independent. “This interferes with that right on the basis of a law officer’s suspicion that an individual might be here illegally when law enforcement officers are not trained to make those kinds of determinations.”

Rep. Barker said his bill was not intended to stop immigrants from gaining bond, but was designed to inform the courts and bonding agents of the flight risk of individuals suspected of being illegal immigrants and create a level of accountability. He said that starts with the investigating agency.

“It is up to an immigration court to determine if they are here illegally or not. The officer doesn’t know for certain that they are here illegally,” Barker said. “The officer may be completely ignorant of immigration laws and only say ‘It is my impression that this person is not here legally because they don’t have any identification to show, that they don’t have a drivers license or they have false identification.’ Whatever would lead them to have reasonable suspicion.

“We are not saying that the officer has to know for certain. Because there is not any way for them to know for certain. But this also frees the officer to give that information to the DA and the DA to the court — and, of course, the officer to the sheriff’s department to the bonding agent. That way everybody is informed and can make an informed decision on what the bond should be. And whether they want to post the bond for this person.”

The Colorado ACLU said the bill language would likely affect all Colorado residents.

“Whenever we take existing laws and we weaken them to allow for a lower standard, civil liberties have the real possibility of being diluted…This truly applies to every one of us,“ Harris Lytle said.

She said the bill would strike fear in the bail bonds community and would specifically hurt the lower and middle income brackets where people cannot afford to post their own bail. Harris Lytle said that those who cannot afford bail would be required to stay in detention centers that would end up costing additional tax dollars.

Barker said his bill was not a prohibition on bonding. He said individuals could still be bonded out of detention.

“It doesn’t mean that they don’t get to bond. It doesn’t mean that when they get to the immigration facility they don’t get to bond either. The purpose is not to deny them bond, it is just to factor their status into the decision-making process,” Barker said.

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