Elisabeth Epps, founder of the Colorado Freedom Fund, visited the Denver jail on Aug. 4, 2020, to bail out three men. Epps has been a driving force in conversations surrounding bail reform in the state and helped spearhead legislation introduced in 2021 to limit the use of cash bail. (John Herrick for Colorado Newsline)
Jonathan Cespedes believes that his mother, Susan, would still be alive today if she’d been allowed to be released on bond instead of awaiting trial in the El Paso County jail for an alleged financial crime committed in another state. The 55-year-old woman died in 2019 after trying to seek medical attention from jail staff for weeks, according to court documents.
“If my mom had been able to be released and await trial at home, she would have gotten the proper medical care and she would be sitting with us today,” Cespedes told state lawmakers in the Senate Judiciary Committee on May 20.
Cespedes was testifying in support of a bill that seeks to limit arrests and the use of cash bail for people accused of committing low-level, nonviolent offenses. The legislation is a slimmed down version of Senate Bill 21-62, a contentious jail depopulation bill that Senate Democrats abandoned over fear that misinformation around what the bill did — and didn’t do — was muddying their messaging.
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The previous bill included low-level, nonviolent felony crimes but the new bill only encompasses misdemeanors, municipal and traffic offenses. The new legislation, Senate Bill 21-273, passed out of it’s first committee on a 3-2 vote on party lines on Thursday and now heads to the Senate Finance Committee. The bill is sponsored in the Senate by Sens. Pete Lee and Dominick Moreno.
“This bill in no way impedes the court’s ability to sentence an offender to jail if that’s what the court believes is necessary,” said La Plata County Sheriff Sean Smith, who testified in support of the bill. “We are simply talking about issuing a summons in lieu of initial arrest for low-level, nonviolent offenders, as the mechanism to initiate the criminal justice process.”
Nearly 50% of the state’s jail population consists of people awaiting trial
Smith believes the bill is a step in the right direction in addressing what he sees as an overuse of jail for people who have not received a sentence and are awaiting trial. From April 2020 to April 2021, an average of 49.6% of the state’s jail population consisted of people who were awaiting trial, according to the state’s jail data dashboard. The state’s data only consists of counties that self-report their data.
“I believe we need to reserve jails for those that are sentenced or pose a risk to public safety,” said Smith, who is a member of the state’s pretrial release task force within the Colorado Commission on Criminal & Juvenile Justice. “(This) is a compromise bill that includes many of the concepts proposed in Senate Bill 21-62, but it also is a result of listening to the community and concerns.”
Many of the same law enforcement-aligned groups that opposed the initial bill oppose the new bill despite the changes, including the Colorado Municipal League, various Colorado police departments and the Colorado Association of Chiefs of Police.
Some of the concerns raised include that the bill will increase crime by having fewer people in jail, take away tools that officers have at their disposal to ensure public safety, and negatively impact victims of crime (though the provisions of the bill do not include crimes that involve direct harm to victims).
“This provision creates, as it did in 62, a revolving door that can and will return serious offenders to the community within hours, or at most days after the victimization of members of the community,” said Ron Sloan, who testified against the bill and represents the Colorado Association of Chiefs of Police.
Limits on arrests for low-level misdemeanor crimes, use of cash bonds
The bill directs law enforcement officers to issue court summons or tickets instead of arresting someone for low-level offenses such as traffic violations or misdemeanor crimes.
Similar to the first iteration of the bill, this one includes a long list of exemptions that would allow arrest, including if the crime involves direct harm to a victim, such as sexual assault, murder or kidnapping. Other exceptions include if the crime involves an illegal possession or use of a gun, driving under the influence, a credible threat to a school, or if an officer is unable to verify someone’s identity.
The proposals are similar to the temporary changes enacted by sheriffs and district attorneys during parts of the pandemic that put limits on who could be arrested for what crimes, and when courts could issue cash bonds. As a result, Colorado jails decreased by over 46% between April and September in 2020.
“This bill asks us to rethink the status quo,” said Denise Maes, public policy director for the ACLU of Colorado. “These arrests, as the senators mentioned in their opening comments, disproportionately involve people of color, and they often escalate into violent confrontations, and in this regard this bill is good for both police and community.”
The bill would prohibit a court from issuing a monetary bond for a misdemeanor offense; municipal offense; class 4, 5, or 6 felony (such as trespassing, low-level burglaries and criminal mischief); or a drug felony.
Instead of cash bonds, the court would issue a personal recognizance bond unless the court finds that the defendant will likely flee prosecution or threaten the safety of another person if not held in custody. Past failure to appear in court or citizen status alone are not sufficient evidence of future intent to flee prosecution, according to the bill text.
“When people are being presented with cash and surety bonds, they are anywhere from $50 to $5,000, and those are amounts that most people can’t meet,” said Alonzo Payne, the district attorney for Colorado’s 12th Judicial District, who spoke in support of the bill. “When you look at the distinction in the incomes that are available throughout Colorado, this bill hits close to home for us in the San Luis Valley.”
The court would also be required to issue a personal recognizance bond if someone failed to appear in court, unless they missed court two or more times in the case or the violation is for failure to complete court ordered treatment related to a sex offense or domestic violence.
A judge is still allowed to issue a cash bond if they have substantial reason to believe the suspect will flee prosecution or threaten the safety of another person, or if the person suspected of a crime has already had probation revoked for failure to comply.
Push to study alternative responses for low-level crimes
The new bill also proposes the creation of a working group within the Department of Public Safety to study and propose policy changes that would allow for more community responses to low-level crimes in lieu of law enforcement.
Examples of opportunities for such alternatives would be for welfare checks, mental and behavioral health crises, homelessness, substance abuse, traffic offenses or some low-level felonies that do not create an immediate safety threat, according to the bill.
Smith said he supports the study of alternative community responses for low-level offenses such as Denver’s STAR program, which sends specially trained mental health professionals to crisis calls instead of law enforcement officers.
“In my law enforcement experience, there have been many types of arrests that can escalate to violent encounters between law enforcement and offenders,” Smith said. “These often occur when alcohol, drugs or mental health issues are involved, or even when the suspect is just scared and afraid to go to jail.”
“These encounters can have very negative outcomes that can lead to injury or death of any of the parties involved, and substantial liability for not only the law enforcement officers but the communities they serve as well,” he added.
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