Colorado took a first step this week toward reforming a cash bail system that burdens the state’s poorest defendants.
House Bill 1225, which eliminates cash bail for low-level offenses, sailed through the Capitol with overwhelming bipartisan support and was signed into law on Thursday by Gov. Jared Polis.
“It’s an important civil rights issue, important for preventing abusive practices,” the governor said, while advocates packing the room beamed. “And it’s going to be good for criminal justice reform.”
Many of the advocates who pushed HB-1225 have argued that cash bail should be eliminated altogether.
There’s no evidence that’ll happen any time soon in Colorado, but, as the legislative session nears its May 3 close, two other bills are pending that also would give some relief to poor people who are disproportionately likely to languish in jail pre-trial — often, for no other than reason than an inability to pay for bail.
Senate Bill 191 would require courts hold bond-setting hearings within 48 hours of a defendant’s arrest. Colorado residents sometimes wait four or five days before their bond is set by a judge. There is no constitutional requirement for people to get hearings within 48 hours, though that’s a standard that multiple circuit courts have supported.
The bill, led by Republican state Sens. Vicki Marble and Democrat Jeff Bridges, has already cleared the Senate and it squeaked by the House Judiciary Committee on Thursday in a 6-5 vote. Democrat Dylan Roberts joined Republicans on the committee in voting no.
Should it pass, it would mean that rural and understaffed courts would have to be open more often. Rural courts already are sweating the idea of having to meet the 48-hour provision, and lawmakers appear open to possibly carving out an exception for those courts as part of this bill.
Roberts, who is also a deputy district attorney in Eagle County, said the facts don’t line up for him. If you subscribe to the theory that this is a constitutional matter of right and wrong, as some of the bill’s proponents do, then, he argued, what sense would it make to advance the bill while letting rural courts off the hook?
“There’s no reason to have a statewide mandate because it doesn’t work the same way in every county,” Roberts said. “Passing a statewide law puts an unfunded mandate on the counties and thus the (district attorneys’) offices … I don’t see that this 48-hour timeline is necessary in the bill. If that weren’t in the bill, I’d be a ‘yes.’”
“Ditto,” said Republican Hugh McKean of Loveland.
Even some who voted for the bill are worried about the impact on rural courts.
“The small portion of our rural counties that are having, or would have, issues with this, does make it clearly problematic,” said Rep. Adrienne Benavidez, a Democrat from Adams County. “…And because of that I think it’s important to move this forward and look for an (exception).”
Other goals stated in the bill — including one that would require sheriffs to allow people to post bond within four hours of it being set, and another that would limit bond processing fees to $10 — are much more widely accepted by lawmakers.
Another bill, House Bill 1226, has a path to final passage but, as with SB-191, it has prompted calls for significant amendments.
The measure would require Colorado’s judicial districts to rewrite their pre-trial screening guidelines, which are used, among other things, to determine how risky it would be to release a defendant after arrest. These screenings can inform how high a court sets someone’s bail, and how long they stay in jail pre-trial.
The bill also would require the districts to develop new criteria to allow more defendants to be released immediately, with no monetary conditions. That bill will be heard by a Senate committee next week.
The ACLU and others say that one problem with the original bill was its reliance upon risk assessment tools, which have been found by the University of Northern Colorado to be biased. A landmark ProPublica investigation also found bias across the country. Such assessments take into account factors such as age of first arrest, data that skews results to disproportionately assess people of color as high risks to reoffend. More than two dozen Colorado counties presently use risk assessment equations.
One of the bill’s sponsors, Democratic Rep. Leslie Herod, said she heard and understood the complaints. The measure has since been amended to call for the development of a new and theoretically improved risk assessment tool.
“I agree with the concern,” Herod said. “So the University of Northern Colorado is creating a new tool that is going to be evaluated for bias.”